{ "id": 910276, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LARRY CARTER, Defendant-Appellant", "name_abbreviation": "People v. Carter", "decision_date": "1998-06-30", "docket_number": "No. 1\u201497\u20141564", "first_page": "1028", "last_page": "1038", "citations": [ { "type": "official", "cite": "297 Ill. App. 3d 1028" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "660 N.E.2d 184", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "277 Ill. App. 3d 214", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1172385 ], "year": 1995, "pin_cites": [ { "page": "218" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/277/0214-01" ] }, { "cite": "648 N.E.2d 130", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "271 Ill. App. 3d 17", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 249177 ], "year": 1995, "pin_cites": [ { "page": "24" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/271/0017-01" ] }, { "cite": "675 N.E.2d 194", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "285 Ill. App. 3d 1039", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1295569 ], "year": 1996, "pin_cites": [ { "page": "1044" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/285/1039-01" ] }, { "cite": "693 N.E.2d 373", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "181 Ill. 2d 541", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 821402 ], "year": 1998, "pin_cites": [ { "page": "545" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/181/0541-01" ] }, { "cite": "643 N.E.2d 712", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "162 Ill. 2d 450", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 477551 ], "year": 1994, "pin_cites": [ { "page": "457-58" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/162/0450-01" ] }, { "cite": "522 N.E.2d 1124", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "122 Ill. 2d 176", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5550081 ], "year": 1988, "pin_cites": [ { "page": "186" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/122/0176-01" ] }, { "cite": "499 N.E.2d 413", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "113 Ill. 2d 497", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3172942 ], "year": 1986, "pin_cites": [ { "page": "514" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/113/0497-01" ] }, { "cite": "432 N.E.2d 262", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "89 Ill. 2d 189", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5494030 ], "year": 1982, "pin_cites": [ { "page": "196" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/89/0189-01" ] }, { "cite": "521 N.E.2d 538", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "165 Ill. App. 3d 968", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3615588 ], "year": 1988, "pin_cites": [ { "page": "978" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/165/0968-01" ] }, { "cite": "519 U.S. 172", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11595223 ], "weight": 3, "year": 1997, "opinion_index": 0, "case_paths": [ "/us/519/0172-01" ] }, { "cite": "618 N.E.2d 388", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "248 Ill. App. 3d 28", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2941104 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/ill-app-3d/248/0028-01" ] }, { "cite": "447 N.E.2d 564", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "113 Ill. App. 3d 659", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3625850 ], "weight": 3, "year": 1983, "pin_cites": [ { "page": "662" }, { "page": "662" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/113/0659-01" ] }, { "cite": "581 N.E.2d 145", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "220 Ill. App. 3d 201", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5274476 ], "year": 1991, "pin_cites": [ { "page": "210" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/220/0201-01" ] }, { "cite": "543 N.E.2d 300", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1989, "pin_cites": [ { "parenthetical": "error for prosecutor to say, without evidentiary support: \"I guess we are all supposed to hope and believe that drug dealers who sell drugs to grade school and high school kids are just pretending\"" } ], "opinion_index": 0 }, { "cite": "187 Ill. App. 3d 126", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2668692 ], "year": 1989, "pin_cites": [ { "page": "138", "parenthetical": "error for prosecutor to say, without evidentiary support: \"I guess we are all supposed to hope and believe that drug dealers who sell drugs to grade school and high school kids are just pretending\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/187/0126-01" ] }, { "cite": "520 N.E.2d 86", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1988, "pin_cites": [ { "parenthetical": "error to repeatedly say the jurors' decision would indicate whether they supported the police who were out protecting them" } ], "opinion_index": 0 }, { "cite": "166 Ill. App. 3d 643", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5069519 ], "weight": 2, "year": 1988, "pin_cites": [ { "parenthetical": "error to repeatedly say the jurors' decision would indicate whether they supported the police who were out protecting them" }, { "page": "650" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/166/0643-01" ] }, { "cite": "358 N.E.2d 50", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1976, "pin_cites": [ { "parenthetical": "improper appeal to juror fears for prosecutor to argue that jurors, if they acquit, should avoid the area of 81st and Western and should not let Ruth beat them back to their parked cars" } ], "opinion_index": 0 }, { "cite": "44 Ill. App. 3d 137", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2814005 ], "year": 1976, "pin_cites": [ { "page": "140", "parenthetical": "improper appeal to juror fears for prosecutor to argue that jurors, if they acquit, should avoid the area of 81st and Western and should not let Ruth beat them back to their parked cars" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/44/0137-01" ] }, { "cite": "395 N.E.2d 1234", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1979, "pin_cites": [ { "parenthetical": "error to make argument based on racial overtones and racial problems" } ], "opinion_index": 0 }, { "cite": "77 Ill. App. 3d 108", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3291037 ], "weight": 2, "year": 1979, "pin_cites": [ { "page": "114", "parenthetical": "error to make argument based on racial overtones and racial problems" }, { "page": "114" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/77/0108-01" ] }, { "cite": "447 N.E.2d 174", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1982, "pin_cites": [ { "parenthetical": "error for State's Attorney to characterize three murders as a holocaust, similar to the Nazi Holocaust depicted in a television show broadcast the night before" } ], "opinion_index": 0 }, { "cite": "94 Ill. 2d 303", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3106373 ], "year": 1982, "pin_cites": [ { "page": "321", "parenthetical": "error for State's Attorney to characterize three murders as a holocaust, similar to the Nazi Holocaust depicted in a television show broadcast the night before" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/94/0303-01" ] }, { "cite": "263 N.E.2d 840", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "46 Ill. 2d 348", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2899528 ], "year": 1970, "pin_cites": [ { "page": "375" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/46/0348-01" ] }, { "cite": "681 N.E.2d 537", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "288 Ill. App. 3d 293", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1597009 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/ill-app-3d/288/0293-01" ] } ], "analysis": { "cardinality": 1036, "char_count": 21037, "ocr_confidence": 0.786, "pagerank": { "raw": 6.271682086291208e-08, "percentile": 0.38685826857087036 }, "sha256": "8766ca97bdf0d7c02ca9b9aa7d42646711152f4afcd67dcf725b6ab252a3d83f", "simhash": "1:62fb3fd7addfe6c9", "word_count": 3490 }, "last_updated": "2023-07-14T14:41:46.412422+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. LARRY CARTER, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE WOLFSON\ndelivered the opinion of the court:\nA jury found Larry Carter (Carter) guilty of three varieties of cocaine possession. It turns out the charge of possession of a controlled substance with intent to deliver within 1,000 feet of a school is fatally defective. Both sides agree. That conviction must be reversed.\nThe issue we are left with when we review the remaining possession charges is what to do about the State\u2019s evidence and comments concerning the presence of schoolchildren and prior police familiarity with the defendant.\nWe conclude the conviction for possession of a controlled substance with intent to deliver should be reversed. However, we affirm the conviction for possession of a controlled substance and remand that cause for resentencing.\nFACTS\nOn August 7, 1996, a two-count information was filed against Larry Carter. In count I Carter was charged with possession of a controlled substance (cocaine) with intent to deliver \u201cwithin 1000 feet of the real property comprising a school.\u201d In count II, .Carter was charged with possession of a controlled substance (the same cocaine as in count I) with intent to deliver.\nThe case was tried before a jury.\nChicago police officer Steven Bocconcelli testified he was a tactical officer for the 23rd District. On May 9, 1996, he was assigned to monitor a corner at the intersection of Ainslie and Kenmore Avenues. At about 8:30 p.m. that evening, Bocconcelli began surveillance from an alleyway located about 150 feet away from the intersection. Using binoculars, the officer observed the activity occurring on the corner. Officers Timothy Glen and Nick Spencer were positioned nearby in an unmarked police car, providing back-up for Officer Bocconcelli.\nOfficer Bocconcelli said he saw a man wearing a green shirt and dark-colored jeans standing on the corner. This man, later identified as defendant Larry Carter, was approached by a young black ihan. After a brief conversation, the man handed Carter what appeared to be a single bill of United States currency. Carter then reached into a plastic bag he was holding in his left hand and gave the man a small plastic packet.\nShortly after the first man walked away, a second young man approached Carter and the same type of exchange took place. Officer Bocconcelli testified, based on his experience as a police officer, he believed Carter was selling drugs.\nOfficer Bocconcelli radioed his two back-up officers to pick him up. The officers drove to the alleyway. Officer Bocconcelli got in the car. All three officers drove to the corner of Ainslie and Kenmore. They got out of the car.\nOfficer Bocconcelli and his partners approached the defendant. Bocconcelli testified:\n\u201cAs we approached Officer Glenn [sic] says, that is Larry Carter. *** As I approached, I said, Larry, I just saw you do two drug deals.\u201d\nOfficers Glen and Spencer also testified at trial. Officer Glen confirmed that he had been on duty the evening of May 9, 1996, and assigned to act as back-up for a surveillance being performed by Officer Bocconcelli. Officer Glen said he recognized the man \u201cas Larry Carter\u201d as soon as he drove up to the corner of Ainslie and Kenmore. He told Officer Bocconcelli that the man\u2019s name was Larry Carter: \u201cI let him know that was Larry Carter.\u201d\nOfficer Glen also testified that when Bocconcelli told Carter he was being watched, Carter dropped a plastic bag and took off running. Officer Glen said he ran after Carter, apprehended him, and placed him under arrest. A search incident to Carter\u2019s arrest revealed Carter was wearing a pager. Carter also had $34 in United States currency, consisting of one $20 bill, one $10 bill and four $1 bills.\nBoth Officers Glen and Spencer testified regarding the steps they took to inventory the items recovered from Carter, including the plastic bag retrieved by Officer Bocconcelli. They said the plastic bag contained 13 smaller plastic packets which held a white, rock-like substance believed to be crack cocaine.\nIt was stipulated that a forensic chemist examined the 13 packets and the substance contained in them. The substance in the packets had a total weight of .91 grams. Three of the thirteen packets were randomly selected for chemical testing. The substance in these packets tested positive for the presence of cocaine.\nTwo other witnesses testified in regard to the enhancement factor \u2014 the principal of St. Thomas of Canterbury School and an investigator for the Cook County State\u2019s Attorney\u2019s office.\nThe principal, Christine Boyd, testified that St. Thomas of Canterbury School is located at 4827 N. Kenmore and the John T. McCutcheon Branch School is located across the street from St. Thomas School.\nPrincipal Boyd said her school accepts students from age three for preschool through eighth grade. About 272 children attend the school. The school was in session on May 9, 1996. Using photographs showing the intersection of Ainslie and Kenmore and the area near the school, Principal Boyd was able to describe the proximity of the intersection to her school.\nOn cross-examination, she said she could not identify Larry Carter as someone who sold drugs near the school. On redirect examination, over objection, she told about the type of activity she would see on the street during morning hours:\n\u201cActivity is the selling of drugs, using children under the ages of 12 on bicycles up and down our street with older people as the main sellers that station themselves at the corner of Ainslie and Kenmore.\u201d\nNeither Principal Boyd nor any other witness testified children were present in the area when the defendant was arrested, at about 8:30 p.m.\nInvestigator Sullivan testified he measured the distance from 4859 N. Kenmore (a location near the intersection of Ainslie and Kenmore) to three area schools, including St. Thomas and McCutcheon. He found all three schools were within 1,000 feet of 4859 N. Kenmore. A diagram he had prepared, which showed the schools in relation to 4859 N. Kenmore, was admitted in evidence.\nSullivan testified he had taken the photographs which Principal Boyd used in her testimony. Sullivan identified the photos and said they were a true and accurate depiction of the area near the intersection of Ainslie and Kenmore.\nThe defendant offered no evidence.\nThe jury found Carter guilty of both counts in the information and of the lesser-included offense of possession of a controlled substance. The State had offered instructions and verdict forms on the lesser-included offense during the instructions conference. The convictions were merged and Carter was sentenced to a single term of five years\u2019 imprisonment.\nDECISION\n1. The \u201cWithin 1,000 Feet of a School\u201d Count\nBefore, during, and after trial the defense contended the school distance count (count I) was defective for failure to allege the possession of cocaine took place \u201con any public way.\u201d 725 ILCS 570/407(b)(2) (West 1996).\nThe State acknowledged it had to prove the \u201cpublic way\u201d element, but denied it had to allege it. The trial judge agreed with the State. Defendant\u2019s motion to dismiss the indictment was denied.\nAfter this trial, we decided People v. Jones, 288 Ill. App. 3d 293, 681 N.E.2d 537 (1997). There, we held the \u201con any public way\u201d element was essential to the offense and failure to allege it was fatal to the charge.\nNow, the State, because of Jones, agrees count I is void. We so hold.\n2. Comments and Evidence Concerning Schoolchildren\nThere can be no question that Larry Carter was within 1,000 feet of a school when his activities were observed by police officers. That fact never was contested by the defense.\nLarry Carter was seen by the officers at about 8:30 p.m. No one said a child was anywhere near Carter or a school at that time.\nYet, from opening statement to rebuttal closing argument, the prosecution made this a case about schools and schoolchildren.\nIn its opening statement, the prosecution said:\n\u201cThis is a very simple case, it is about a drug dealer and elementary school children. It is about an individual who makes his trade on a street line[d] with elementary school children ***.\u201d\nThe State\u2019s first witness was Christine Boyd, principal of the St. Thomas school. On direct examination, she said 272 children attend her school. The children ranged from preschoolers three years of age to eighth graders. Slightly to the north is the McCutcheon school, which, she said, serves children in kindergarten through second grade.\nDuring direct examination, Ms. Boyd identified several State photographs. People\u2019s exhibit 1 is an 8-by-10 color photo of the St. Thomas school. It shows about 15 children standing on the steps of the school. Other than showing the school exists, an undisputed fact, the photo has no apparent probative value.\nDefense counsel did not object to admission of the photo. He did object to Ms. Boyd\u2019s testimony on redirect examination. She told of seeing drug dealers using children under 12 on bicycles for the selling of drugs. She told of patrolling nearby streets in the early afternoon and prohibiting nighttime activities at the school to ensure the safety of the schoolchildren.\nIn rebuttal closing argument the prosecution, over objection, elaborated:\n\u201cChildren don\u2019t get to go to their school, they don\u2019t get to play at their school at night, they don\u2019t get to have PTA meetings, they don\u2019t get to live like civilized citizens because of the defendant because people like the defendant have invaded their neighborhood.\u201d\nAgain, over objection, using Ms. Boyd\u2019s testimony, the prosecution drew a picture of Carter that extended far beyond the charges against him:\n\u201cBecause individuals such as Larry Carter are out there selling drugs. He, as you heard from Christine Boyd, and his counterpart are out there all day running up and down in bicycles, standing out in traffic as bold and as big as life, they have no respect for the law, they have no respect for the kids who are trying to get an education at this school, they have no respect for this Court.\u201d\nA prosecutor may dwell on the evil of crime and exhort the jury to fearlessly administer the law. People v. Hairston, 46 Ill. 2d 348, 375, 263 N.E.2d 840 (1970). But where statements made in closing argument serve no purpose except to inflame the jury, the statements constitute error. People v. Tiller, 94 Ill. 2d 303, 321, 447 N.E.2d 174 (1982) (error for State\u2019s Attorney to characterize three murders as a holocaust, similar to the Nazi Holocaust depicted in a television show broadcast the night before).\nHere, it appears to us the prosecutor\u2019s purpose was to inflame the passion or arouse the prejudice of the jury against the defendant \u201cwithout shedding any light on the paramount question presented to the jury, to-wit, its decision.\u201d People v. Lurry, 77 Ill. App. 3d 108, 114, 395 N.E.2d 1234 (1979) (error to make argument based on racial overtones and racial problems); People v. Blackman, 44 Ill. App. 3d 137, 140, 358 N.E.2d 50 (1976) (improper appeal to juror fears for prosecutor to argue that jurors, if they acquit, should avoid the area of 81st and Western and should not let Ruth beat them back to their parked cars). Also see People v. Threadgill, 166 Ill. App. 3d 643, 520 N.E.2d 86 (1988) (error to repeatedly say the jurors\u2019 decision would indicate whether they supported the police who were out protecting them).\nThere was no evidence in this case that this defendant possessed or sold drugs anywhere in the vicinity of children. Nor was there any evidence that he was part of a band of drug dealers plying their trade in the neighborhood. The prosecutor\u2019s remarks served no purpose other than inflaming the jury. People v. Rogers, 187 Ill. App. 3d 126, 138, 543 N.E.2d 300 (1989) (error for prosecutor to say, without evidentiary support: \u201cI guess we are all supposed to hope and believe that drug dealers who sell drugs to grade school and high school kids are just pretending\u201d).\nIn People v. Watkins, 220 Ill. App. 3d 201, 210, 581 N.E.2d 145 (1991), where the defendant was charged with possession of a controlled substance, we said we do not condone a prosecutor arguing: \u201cLadies and Gentlemen, how can we ever face our children, how can we ever tell them' to say no to drugs, if we let somebody like Lonnie Watkins back out on the street?\u201d\nThe argument in this case resembles the one made in People v. Ford, 113 Ill. App. 3d 659, 447 N.E.2d 564 (1983), where the defendant was charged with unlawful delivery of cannabis. The prosecutor argued:\n\u201c[Bjecause if we\u2019re talking about sympathies and prejudice when we\u2019re talking about the elicit [sic] business of selling drugs, then I would suggest that the Defense look to the poor, innocent, susceptible children in our community who are tempted and forced by peer pressures ***.\u201d Ford, 113 Ill. App. 3d at 662.\nThe Court said:\n\u201cIt is clear that the prosecutor was making an inflammatory appeal to the fears of the jury, and such remarks cannot be condoned.\u201d Ford, 113 Ill. App. 3d at 662.\nWe do not consider the prosecution\u2019s final argument remarks in isolation. They were part of a theme heard and seen throughout the trial, not the single comment we permitted in People v. Peterson, 248 Ill. App. 3d 28, 618 N.E.2d 388 (1993).\nThe State proved distance from the school through its investigator and the diagram he prepared. Distance was an enhancing factor and had little or nothing to do with the defendant\u2019s behavior on May 9, 1996, at Ainslie and Kenmore. See Old Chief v. United States, 519 U.S. 172, 136 L. Ed. 2d 574, 117 S. Ct. 644 (1997). While the extensive comments and evidence concerning schools and children would represent prosecutorial excess in the trial of count I, they have no arguable relevance to count II or the lesser-included possession charge.\nThe trial judge made no effort to confine schools and schoolchildren evidence to count I. True, he was not asked to do so, but there are times when a trial judge\u2019s uninvited action can cure unfair prejudice. For example, in People v. Marshall, 165 Ill. App. 3d 968, 978, 521 N.E.2d 538 (1988), the trial judge sua sponte struck a prosecutor\u2019s comment that the defendant intended to deliver the cocaine to the neighborhood, addicts, children, and other members of the community. Potential error was avoided.\nWe do not deprecate the potential dangers of drug traffic in the vicinity of children. Principal Boyd\u2019s concern for her students is real and justified. Because the matter is emotionally charged, however, care must be taken to abide by principles of relevance, lest improper considerations direct the conduct of the jury.\n3. Police Familiarity With Larry Carter\nAnother theme sounded by the State was police familiarity with Larry Carter before the day he was arrested.\nIn opening, the prosecutor said:\n\u201cOfficer Glen is going to tell you that he knows the defendant, he knows him by name, that is, Larry Carter.\u201d\nThe promise was kept. On direct examination of Officer Glen:\n\u201cQ. *** did you recognize the defendant?\nA. Yes, I recognized him as Larry Carter.\nQ. Had you seen the defendant previous to that day?\nA. Yes.\n* * *\nQ. As you approached, did you say anything to any of the other officers in the vehicle?\nA. Yes. I let them know that was Larry Carter.\u201d\nGlen had testified that his duties included \u201cnarcotics surveillance, gang surveillance.\u201d\nThe point was made again when Officer Bocconcelli testified:\n\u201cA. My partners, they approached also. As we approached, Officer Glenn [sic] says that is Larry Carter.\nQ. What did you do if anything?\nA. As I approached, I said, Larry I just saw you do two deals.\u201d\nThe obvious inference is that Carter had been engaged in prior illicit drug or gang activity, an implication that has been criticized by our supreme court. People v. Stover, 89 Ill. 2d 189, 196, 432 N.E.2d 262 (1982). Even where a prosecutor does not argue prior familiarity with a defendant is evidence of criminal conduct, the implication may be conveyed by testimony and \u201cis better avoided, unless somehow relevant.\u201d People v. Bryant, 113 Ill. 2d 497, 514, 499 N.E.2d 413 (1986).\nWe have examined the record to determine whether there was any relevant purpose for repeated references to a narcotics and gang surveillance officer knowing Larry Carter by name. We find none.\nContrary to the State\u2019s contention, there never was an issue concerning whether Larry Carter was the man observed by Officer Bocconcelli. Defense counsel\u2019s cross-examination of the officers and his final argument were directed at the police account of what Carter was doing, not at his presence. In final argument defense counsel\u2019s only point was that there was not enough evidence Larry Carter passed or possessed cocaine.\nThe police familiarity evidence should not have been admitted.\n4. The Impact of the Improper Comments and Evidence\nThe State contends Carter failed to preserve for review the issues he now raises. It is true that defense objections were hit and miss during the trial, although, as we have pointed out, defense counsel did periodically object to Principal Boyd\u2019s testimony, testimony and comments about Officer Glen\u2019s familiarity with Carter, and final argument concerning schoolchildren. It also is true that defense counsel made no effort to preserve any of these errors in his posttrial motion, a blatant disregard of his client\u2019s interests.\nOrdinarily, failure to present an issue in a posttrial motion results in a procedural default. People v. Enoch, 122 Ill. 2d 176, 186, 522 N.E.2d 1124 (1988). We are persuaded, however, that a plain error analysis is appropriate in this case. We believe the errors we have discussed, as they apply to count II and the lesser-included possession offense, are worrisome enough to invoke the plain error exception to the waiver rule. 134 Ill. 2d R. 615(a); People v. Brandon, 162 Ill. 2d 450, 457-58, 643 N.E.2d 712 (1994). Substantial rights are affected. People v. Threadgill, 166 Ill. App. 3d at 650; People v. Lurry, 77 Ill. App. 3d at 114.\nIn addition, our supreme court has observed that \u201cthe waiver rule is a rule of administrative convenience rather than jurisdiction, and the goals of obtaining a just result and maintaining a sound body of precedent may sometimes override considerations of waiver.\u201d People v. Hicks, 181 Ill. 2d 541, 545, 693 N.E.2d 373 (1998).\nOur decision to address the merits of the defendant\u2019s contentions requires us to examine the admissible evidence heard and seen by the jury, then determine whether the errors we have identified could have made any difference.\nThere is no litmus test that allows us to scientifically measure the impact of impropriety on a jury. At times, when we engage in a weighing process, we conclude the errors did not prejudice the defendant. Reversal, then, is not required. See People v. Davis, 285 Ill. App. 3d 1039, 1044, 675 N.E.2d 194 (1996).\nIn other cases, confidence in the outcome is shaken. Strong evidence or not, \u201ca fair trial, in all its stages, is a fundamental requirement in a criminal prosecution.\u201d People v. Rega, 271 Ill. App. 3d 17, 24, 648 N.E.2d 130 (1995). Our responsibility to provide a just result has caused us to examine an issue not raised by the defendant on appeal. People v. Thomas, 277 Ill. App. 3d 214, 218, 660 N.E.2d 184 (1995).\nHere, all error aside, no rational jury could have found the defendant not guilty of the lesser-included possession charge. Evidence of possession was uncontradicted and unchallenged. The possession conviction is affirmed.\nWhether the defendant possessed the cocaine with intent to distribute it is a closer question. While one officer testified to seeing two exchanges, at night, from a distance of 100 to 130 feet, through binoculars, neither of the two purported buyers was stopped. Carter possessed less than a gram of cocaine.\nWe conclude the entirety of improper comments and evidence well might have tainted the jury\u2019s deliberations on the intent to distribute charge. That conviction cannot stand.\nCONCLUSION\nWe reverse the defendant\u2019s conviction under count I, which defectively, charged him with possession of a controlled substance within 1,000 feet of a school. We reverse the defendant\u2019s conviction for possession of a controlled substance with intent to distribute. We affirm the defendant\u2019s conviction for possession of a controlled substance and remand that cause to the trial court for resentencing.\nBecause the simple possession conviction that stands is a lesser-included offense, there is no reason to remand the greater offense of possession of a controlled substance with intent to distribute.\nReversed in part, affirmed and remanded in part.\nMcNAMARA and SOUTH, JJ., concur.", "type": "majority", "author": "JUSTICE WOLFSON" } ], "attorneys": [ "Howard M. Rubin, of DePaul Legal Clinic, of Chicago, for appellant.", "Richard A. Devine, State\u2019s Attorney, of Chicago (Renee Goldfarb, William Toffenetti, and Bryan Hofeld, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LARRY CARTER, Defendant-Appellant.\nFirst District (4th Division)\nNo. 1\u201497\u20141564\nOpinion filed June 30, 1998.\nHoward M. Rubin, of DePaul Legal Clinic, of Chicago, for appellant.\nRichard A. Devine, State\u2019s Attorney, of Chicago (Renee Goldfarb, William Toffenetti, and Bryan Hofeld, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "1028-01", "first_page_order": 1046, "last_page_order": 1056 }