{ "id": 150249, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FAZAL OMAR, Defendant-Appellant", "name_abbreviation": "People v. Omar", "decision_date": "1996-06-07", "docket_number": "No. 2\u201494\u20141087", "first_page": "407", "last_page": "417", "citations": [ { "type": "official", "cite": "281 Ill. App. 3d 407" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "430 U.S. 482", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12125538 ], "weight": 3, "year": 1977, "pin_cites": [ { "page": "494" }, { "page": "510-11" }, { "page": "1280" } ], "opinion_index": 0, "case_paths": [ "/us/430/0482-01" ] }, { "cite": "726 F.2d 21", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1929582 ], "weight": 4, "year": 1984, "pin_cites": [ { "page": "23" }, { "page": "24" }, { "page": "24" }, { "page": "24" } ], "opinion_index": 0, "case_paths": [ "/f2d/726/0021-01" ] }, { "cite": "909 F.2d 662", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10538969 ], "year": 1990, "pin_cites": [ { "page": "678" } ], "opinion_index": 0, "case_paths": [ "/f2d/909/0662-01" ] }, { "cite": "54 F.3d 311", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 7409727 ], "weight": 3, "year": 1995, "pin_cites": [ { "page": "313-14" }, { "page": "313-14" }, { "page": "314" } ], "opinion_index": 0, "case_paths": [ "/f3d/54/0311-01" ] }, { "cite": "73 F.3d 774", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 7412879 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "776-77", "parenthetical": "9th Cir." } ], "opinion_index": 0, "case_paths": [ "/f3d/73/0774-01" ] }, { "cite": "75 F.3d 545", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 734 ], "weight": 4, "year": 1996, "pin_cites": [ { "page": "548" }, { "page": "548" }, { "page": "548", "parenthetical": "9th Cir." }, { "page": "549" } ], "opinion_index": 0, "case_paths": [ "/f3d/75/0545-01" ] }, { "cite": "476 U.S. 162", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12835 ], "weight": 3, "year": 1986, "pin_cites": [ { "page": "176" }, { "page": "149" }, { "page": "1766" } ], "opinion_index": 0, "case_paths": [ "/us/476/0162-01" ] }, { "cite": "439 U.S. 357", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11330305 ], "weight": 9, "year": 1979, "pin_cites": [ { "page": "364" }, { "page": "586-87" }, { "page": "668" }, { "page": "364" }, { "page": "587" }, { "page": "668" }, { "page": "364" }, { "page": "587" }, { "page": "668" } ], "opinion_index": 0, "case_paths": [ "/us/439/0357-01" ] }, { "cite": "222 Ill. App. 3d 657", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5264544 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "661" }, { "page": "662" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/222/0657-01" ] }, { "cite": "102 Ill. App. 3d 122", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3075675 ], "year": 1981, "pin_cites": [ { "page": "128-29" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/102/0122-01" ] }, { "cite": "156 Ill. App. 3d 950", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3506703 ], "weight": 4, "year": 1987, "pin_cites": [ { "page": "953" }, { "page": "952-53" }, { "page": "952-54" }, { "page": "954" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/156/0950-01" ] }, { "cite": "94 Ill. 2d 514", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3106990 ], "year": 1983, "pin_cites": [ { "page": "523-24" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/94/0514-01" ] }, { "cite": "191 Ill. App. 3d 940", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2512252 ], "year": 1989, "pin_cites": [ { "page": "947" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/191/0940-01" ] }, { "cite": "106 Ill. 2d 492", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3139532 ], "year": 1985, "pin_cites": [ { "page": "502" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/106/0492-01" ] } ], "analysis": { "cardinality": 860, "char_count": 20365, "ocr_confidence": 0.773, "pagerank": { "raw": 6.497341544922815e-08, "percentile": 0.39961885808786535 }, "sha256": "187ac3b8dfcb600d384d04d44219cdda94a6a62a370450820abb30476374073e", "simhash": "1:bf868656602ad22d", "word_count": 3265 }, "last_updated": "2023-07-14T22:18:30.087160+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FAZAL OMAR, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE INGLIS\ndelivered the opinion of the court:\nDefendant, Fazal Omar, appeals the verdict of the circuit court of Lake County which found him guilty of two counts of unlawful possession of a controlled substance (720 ILCS 570/402 (West 1994)). We affirm.\nDefendant was charged with two counts of unlawful possession of a controlled substance as a result of events which occurred on the night of February 12, 1994. On that night, several members of the Waukegan and Park City police departments were present at the Stardust Motel in Park City. Officers Michael Taylor, David Mercado, and Michael Szuchnicki testified that they were inside a motel room at the Stardust Motel. The front door was open and the parking lot was illuminated by a streetlight. A car pulled up and defendant got out. Defendant began to walk towards the motel room where the officers were, at which point Officer Taylor approached defendant and asked him to take his hands out of his pockets. Defendant obliged, but then proceeded to throw two small objects into a snowbank.\nOfficer Mercado saw defendant throw the objects, and the officer went over and retrieved the objects from the snowbank. One of the objects was a napkin which had two small plastic baggies inside. The baggies contained a rock-like white substance. The other object was a larger plastic bag, which contained a white rocky substance. Officer Mercado turned the objects over to Officer Szuchnicki.\nOfficer Szuchnicki also saw defendant throw some objects, although he did not see where they fell. Officer Mercado handed Officer Szuchnicki the bags containing the white substances. Officer Szuch-nicki was not sure what was in the bags, so he field tested the substances using Valtox, a cobalt reagent. The Valtox turned blue, which was indicative that the samples were cocaine. Officer Szuchnicki then sealed both objects in separate envelopes and placed the envelopes in an evidence bag.\nThe evidence bag was placed in the evidence vault at the Wauke-gan police station. The evidence custodian later removed the bag from the vault and took the bag to the Northern Illinois Police Crime Laboratory for further testing. Upon arrival at the laboratory, the secretary at the crime laboratory signed for the evidence. Chris Hedges, a forensic scientist with the laboratory, received the evidence bag with the sealed envelopes. He then opened the envelopes and proceeded to test the substances.\nMr. Hedges indicated that the larger package contained a clump of white powdery material. Mr. Hedges first tested the package using a cobalt reagent, which was similar to the Valtox testing reagent used by Officer Szuchnicki. The reagent turned a blue color, which could indicate that the package contained cocaine. However, Mr. Hedges proceeded to further test the first package. The additional test results indicated that the package might contain heroin mixed with diphenhydramine. Diphenhydramine is a white, powder-like substance which is often mixed with heroin to increase the heroin\u2019s street value. Mr. Hedges indicated that the diphenhydramine would also yield a blue result when mixed with a cobalt reagent and thus would explain the blue result from Mr. Hedges\u2019 and Officer Szuch-nicki\u2019s initial tests.\nMr. Hedges proceeded to further test the larger package by placing it in a gas chromatograph mass spectrometer (GCMS). The GCMS compares various attributes of the unknown substance to the attributes of a known substance and then determines which substance the unknown substance best matches. The test returned a score of 9,580 out of 10,000 that the substance was heroin, which led Mr. Hedges to conclude, in his expert opinion, to a reasonable degree of scientific certainty, that the package contained heroin. The next closest possible substance returned a score of 6,651 out of 10,000.\nMr. Hedges also tested the smaller package in the GCMS, and the test returned a score of 9,917 out of 10,000 that the substance was cocaine. Mr. Hedges concluded that the substance in the smaller package was cocaine.\nThe jury returned a verdict of guilty on both counts, and defendant was sentenced to two years\u2019 imprisonment. On appeal, defendant argues that the evidence presented was insufficient to prove defendant guilty beyond a reasonable doubt. Defendant further argues that he was denied a fair trial as a result of the State\u2019s alleged improper gestures and remarks during closing argument. Lastly, defendant contends that the makeup of the jury venire was such as to violate defendant\u2019s sixth and fourteenth amendment rights, as well as defendant\u2019s right to equal protection.\nWe turn now to defendant\u2019s first argument. Defendant argues that he was not proved guilty beyond a reasonable doubt because the State\u2019s case was filled with inconsistent and incredible testimony. Specifically, defendant notes that Officers Taylor, Mercado, and Szuchnicki testified that the larger package retrieved from the snowdrift (heroin) was a large, white, rock-like substance, while Mr. Hedges testified that it was a clump of a powder-like substance. Further, defendant notes that the officers testified that the substance had tested positive for cocaine although expert testimony established that the substance was heroin. Defendant also contends that the officers\u2019 testimony differed as to where exactly defendant had been standing when he threw the objects into the snowbank and that the officers\u2019 testimony also differed as to the quality, quantity, and location of the lighting outside the motel room.\nIt is the jury\u2019s responsibility to resolve any factual disputes, to assess the credibility of the witnesses, and to determine the sufficiency of the evidence in support of a verdict of guilty. People v. Bradford, 106 Ill. 2d 492, 502 (1985). A reviewing court will reverse a conviction only if the evidence is so unsatisfactory as to raise a reasonable doubt of defendant\u2019s guilt. People v. Johnson, 191 Ill. App. 3d 940, 947 (1989).\nIn the case at bar, the officers did testify that the package containing the heroin contained a rocky substance which field tested as cocaine. Mr. Hedges testified, however, that the substance was a clump of white powdery material which turned out to be heroin. Mr. Hedges also testified that the heroin contained diphenhydramine, a substance which, when tested with a cobalt reagent, will cause the reagent to turn blue. The mere fact that the police officers described the substance as a white, rock-like substance while a forensic scientist testified that it was a clump of white powdery material does not render the evidence so unsatisfactory as to raise a reasonable doubt as to defendant\u2019s guilt. Further, Mr. Hedges provided an entirely plausible explanation as to why the heroin field tested as cocaine.\nWe have examined the record in its entirety and find that the officers all agreed that the parking lot was well illuminated and all three officers testified that defendant threw two objects towards the snowbank. While the officers\u2019 testimony may not have been identical as to the number and the exact location of the lights in the parking lot and where exactly defendant was standing when he threw the objects, the evidence as a whole was not so unsatisfactory as to raise a reasonable doubt of defendant\u2019s guilt.\nDefendant next argues that he was denied a fair trial because of the prosecutor\u2019s alleged improper gestures and remarks during closing argument. During closing argument, the prosecutor stated:\n\"Ladies and gentlemen, look over here. All thirteen of you sitting in that box look right here. Fazal Omar, the defendant. Now, ladies and gentlemen, follow me over here for a minute. The witness stand. The evidence, ladies and gentlemen, comes from the witnesses. The evidence, ladies and gentlemen, comes from the exhibits. Look over here for a moment.\n* * *\n[Defense counsel objects to the prosecutor pointing his finger at defense counsel.]\nLadies and gentlemen, the evidence doesn\u2019t come from Mr. Stone\u2019s mouth. The evidence doesn\u2019t come from my mouth. The evidence doesn\u2019t come from Mr. Pinsel\u2019s mouth. It comes from the witnesses. And that\u2019s what you need to look at, ladies and gentlemen, the evidence.\u201d\nDuring closing argument, the prosecutor may denounce the accused, reflect upon witness credibility, and urge the fearless administration of law if it is based on facts in the record or inferences fairly drawn from those facts. People v. Bryant, 94 Ill. 2d 514, 523-24 (1983). However, a prosecutor may not make a reference intended to direct the attention of the jury to the defendant\u2019s failure to testify. People v. Tate, 156 Ill. App. 3d 950, 953 (1987). Such references can also include gestures and visual displays as well as verbal comments. People v. Johnson, 102 Ill. App. 3d 122, 128-29 (1981).\nWe have examined the complained-of comments and determine that they were not directed towards defendant\u2019s silence. Rather, as the State argued, the prosecutor was merely demonstrating that the evidence was supposed to come from the witnesses on the witness stand and not from the attorneys.\nThe cases cited by defendant in support of his argument that the prosecutor\u2019s remarks were improper involve instances where the prosecutor made specific reference to the defendant and the defendant\u2019s silence. For example, in People v. Tipton, 222 Ill. App. 3d 657, 661 (1991), the prosecutor specifically stated: \" 'Where that object ended up we\u2019ll never know. [The defendant] knows. We\u2019ll never know ***.\u2019 \u201d The court found the reference to the defendant coupled with the implication that the defendant could have explained where the object was to be improper. Tipton, 222 Ill. App. 3d at 662.\nSimilarly, in Tate, 156 Ill. App. 3d at 952-53, the prosecutor referred to the fact that the jury had not heard any direct evidence concerning the defendant\u2019s intent to defraud, but that the only person who could provide that evidence was the defendant, who did not testify. Again, the court determined that the prosecutor\u2019s mention of the defendant and defendant\u2019s knowledge concerning his intent, as well as the prosecutor\u2019s reference to the defendant\u2019s failure to present evidence, to be sufficient to warrant reversal. Tate, 156 Ill. App. 3d at 952-54.\nIn the case at bar, the prosecutor was responding to defense counsel\u2019s rather impassioned closing argument in which he repeatedly compared the police officers to Jihad soldiers in a war on drugs. Although the prosecutor did mention defendant\u2019s name, the prosecutor did not make any statement which could be construed as being directed against defendant\u2019s failure to testify. Rather, we find that the comments were designed to emphasize the fact that the evidence came from the witnesses on the witness stand, and not from either attorney, especially in light of some of defense counsel\u2019s comments throughout the trial. After reviewing the context of the prosecutor\u2019s closing argument, we find that the prosecutor\u2019s comments were not intended or calculated to direct the attention of the jury to defendant\u2019s failure to testify.\nAdditionally, we note that defendant failed to object to the State\u2019s comments during closing argument. The only objection made was when the prosecutor pointed his finger at defense counsel, whereupon defense counsel objected to the prosecutor pointing his finger at him in a court of law. After the court reminded the attorneys to be polite, the prosecutor proceeded with closing arguments without further objection. Thus, we could also view this argument waived. See Tate, 156 Ill. App. 3d at 954.\nLastly, defendant argues that because there was only one African-American in the jury venire, he was denied his sixth and fourteenth amendment constitutional rights to a grand and petit jury drawn from a fair cross-section of the community. U.S. Const., amends. VI, XIV. In order to establish a prima facie violation of the fair cross-section requirement, a defendant must show (1) that the group alleged to be excluded is a \"distinctive\u201d group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this under-representation is due to the systematic exclusion of the group in the jury-selection process. Duren v. Missouri, 439 U.S. 357, 364, 58 L. Ed. 2d 579, 586-87, 99 S. Ct. 664, 668 (1979).\nWe agree that defendant met the first prong of the Duren test. Defendant is an African-American, and African-Americans are \"distinctive\u201d for purposes of the Duren test. See Lockhart v. McCree, 476 U.S. 162, 176, 90 L. Ed. 2d 137, 149, 106 S. Ct. 1758, 1766 (1986).\nThe second part of the Duren test requires proof that the jury pool does not adequately represent the distinctive group in relation to the number of such persons in the community. United States v. Es-quivel, 75 F.3d 545, 548 (9th Cir. 1996). There are two separate tests which courts have employed in determining whether the venire adequately represents the distinctive group.\nThe first test, the \"absolute disparity\u201d test, takes the percentage of the group at issue in the total population and subtracts from that percentage the percentage of that group which is represented on the master jury wheel. See Esquivel, 75 F.3d at 548. The second test, the \"comparative disparity\u201d test, takes the percentage of representation in the jury pool and subtracts that from the percentage of the group at issue in the total population, divides that difference by the percentage of representation in the community, and multiplies that by 100 to obtain a percentage result. United States v. Rogers, 73 F.3d 774, 776 n.l (8th Cir. 1996). While there appears to exist a discrepancy among several federal circuits, the majority of circuits have utilized the \"absolute disparity\u201d test in analyzing a defendant\u2019s challenge to a jury venire. See, e.g., Esquivel, 75 F.3d at 548 (9th Cir.); Rogers, 73 F.3d at 776-77 (9th Cir.); United States v. Ashley, 54 F.3d 311, 313-14 (7th Cir. 1995); United States v. Biaggi, 909 F.2d 662, 678 (2d Cir. 1990); United States v. Hafen, 726 F.2d 21, 23 (1st Cir. 1984). While we acknowledge that the decisions of the federal courts are merely persuasive authority (People v. Qualls, 233 El. App. 3d 394, 397 (1992), we find the better rule to be the \"absolute disparity\u201d test.\nThere may be some circumstances in which the \"comparative disparity\u201d test might be a useful supplement to the \"absolute disparity\u201d test. However, where the group allegedly underrepresented forms a small proportion of the total population, then the \"absolute disparity\u201d test is more appropriate. See Hafen, 726 F.2d at 24. The smaller the underrepresented group is in the community, the more the \"comparative disparity\u201d test distorts the proportional representation. Hafen, 726 F.2d at 24. For example, in an area with 100,000 non-African-American people and only 10 African-Americans eligible to serve as jurors, a random selection that failed to place a single African-American on the jury would result in a 100% comparative disparity even though the all non-African-American jury would clearly form a fair cross-section of the community. Hafen, 726 F.2d at 24.\nThus, we will utilize the \"absolute disparity\u201d test in analyzing defendant\u2019s challenge to the jury-selection process in Lake County. Utilizing defendant\u2019s representations, the percentage of African-Americans in Lake County is approximately 12%. Further, defendant represented that the jury venire was 3.4% African-American. Thus, the absolute disparity is approximately 8.6%. An absolute disparity of less than 10%, by itself, is insufficient to demonstrate unfair or unreasonable representation of African-Americans on the venire without defendant also tying that disparity to something other than coincidence. See Esquivel, 75 F.3d at 549; Ashley, 54 F.3d at 313-14.\nDefendant has not met the second prong of the Duren test. Du-ren, 439 U.S. at 364, 58 L. Ed. 2d at 587, 99 S. Ct. at 668. The absolute disparity was less than 10%. Thus, defendant was required to attribute the disparity to something other than coincidence. We note that the only support which defendant presented in favor of his argument was defense counsel\u2019s own representations concerning the percentage of African-Americans in Lake County and the percentage of African-Americans in the venire. Further, defendant has only provided information concerning one venire. That defendant asks us to throw out the entire jury-selection process in Lake County based on the makeup of one venire is unreasonable.\nDefendant has also not met the third prong of the Duren test, which requires that defendant show that the underrepresentation is due to the systematic exclusion of the group in the jury-selection process. Duren, 439 U.S. at 364, 58 L. Ed. 2d at 587, 99 S. Ct. at 668. Defendant has provided no evidence in support of his argument that the alleged exclusion of African-Americans on the jury venire is inherent in the particular jury process utilized. See Ashley, 54 F.3d at 314.\nDefendant\u2019s only argument in support of this third prong is based on his assumption that, because the jury venire is selected from a list of persons with drivers\u2019 licenses, poor people, including blacks, are excluded from the jury. Defendant argues that poor people cannot serve on juries because they cannot afford the insurance needed to drive. First, poor people are not a distinct group for purposes of the Duren test. We are concerned with the representation of African-Americans on the venire. Second, defendant has presented no statistical evidence that African-Americans do not obtain drivers\u2019 licenses because they cannot afford car insurance. Third, there is no legal requirement which precludes an individual without insurance from obtaining a driver\u2019s license. Moreover, we presume that many persons obtain drivers\u2019 licenses for identification purposes, and not just to drive automobiles.\nThus, defendant\u2019s argument that the jury-selection process in Lake County violated his sixth and fourteenth amendment rights to have a jury selected from a fair cross-section of the community is meritless.\nDefendant also argues that the jury-selection process denied him equal protection of the laws. In order to show an equal protection violation in the context of jury selection, the defendant must show that (1) the group allegedly singled out is a distinct class; (2) the underrepresentation must be proven by examining the percentage of the group called and the percentage of the group in the community over a period of time; and (3) the selection process is susceptible to abuse or is not racially neutral. Castaneda v. Partida, 430 U.S. 482, 494, 51 L. Ed. 2d 498, 510-11, 97 S. Ct. 1272, 1280 (1977).\nAgain, we acknowledge that African-Americans are a distinct group. However, defendant has wholly failed to meet the second and third prongs of the Castaneda test. As to the second prong, the only evidence which defendant has presented is the racial makeup of one venire. In examining all the cases which have discussed the racial makeup of juries, we have found no cases which have determined that a defendant\u2019s equal protection rights are violated based on the racial makeup of one venire. As to the third prong, defendant has presented no evidence to indicate that the jury-selection process was susceptible to abuse or was not racially neutral. Again, the only attempt at such an argument is the unsupported allegation that poor people cannot get drivers\u2019 licenses.\nThus, for the foregoing reasons, the verdict of the circuit court of Lake County which found defendant guilty of two counts of unlawful possession of a controlled substance is affirmed.\nAffirmed.\nGEIGER and DOYLE, JJ., concur.", "type": "majority", "author": "JUSTICE INGLIS" } ], "attorneys": [ "G. Joseph Weller, Bonnie J. Bondavalli, and Steven E. Wiltgen, all of State Appellate Defender\u2019s Office, of Elgin, and Charles M. Schiedel and John J. Hanlon, both of State Appellate Defender\u2019s Office, of Springfield, for appellant.", "Michael J. Waller, State\u2019s Attorney, of Waukegan (William L. Browers and David A. Bernhard, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FAZAL OMAR, Defendant-Appellant.\nSecond District\nNo. 2\u201494\u20141087\nOpinion filed June 7, 1996.\nG. Joseph Weller, Bonnie J. Bondavalli, and Steven E. Wiltgen, all of State Appellate Defender\u2019s Office, of Elgin, and Charles M. Schiedel and John J. Hanlon, both of State Appellate Defender\u2019s Office, of Springfield, for appellant.\nMichael J. Waller, State\u2019s Attorney, of Waukegan (William L. Browers and David A. Bernhard, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0407-01", "first_page_order": 425, "last_page_order": 435 }