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People v. Velez

JUNE 13, 1966.




Appeal from the Circuit Court of Cook County, Criminal Division; the Hon. ROBERT L. HUNTER, Judge, presiding. Reversed and remanded.


The defendant, Alfonso Velez, was found guilty by a jury of the unlawful sale of narcotic drugs, and was sentenced to a term in the penitentiary of not less than ten nor more than eleven years. He filed a writ of error in the Supreme Court, and the cause was transferred here.

On appeal, the defendant contends that he is entitled to a reversal of his conviction because of the following errors: (1) counsel was wrongfully prevented from cross-examining a prosecution witness as to criminal charges then pending against him; (2) a scientific experiment was performed in court and a similar test performed on the night of the arrest by a police officer who was not qualified as an expert, and without adequate controls; (3) the testimony of an informer was not corroborated; (4) defendant was denied access during the trial to grand jury minutes containing the testimony of the informer; (5) the court failed to require a police officer, who remained in the courtroom to assist the prosecution, to testify first; (6) hearsay evidence was improperly received in the preliminary hearing; (7) the court refused to order the court reporter to read back a witness's prior testimony; (8) prejudicial remarks were made by the prosecutor during closing argument; and (9) the delay in supplying a copy of the trial transcript to the defendant constituted a denial of due process and of equal protection of the laws.

Defendant's arrest and conviction arose from the enforcement technique which has become known as the "controlled purchase" of narcotics. On March 22, 1963, Gene Anderson, a police informer and former narcotics addict, contacted Chicago police officers and told them he could make a purchase of narcotics. A thorough search of Anderson's person and clothing disclosed that he did not possess any narcotics or money. The police then issued to Anderson $15 in currency, having first recorded the serial numbers of the bills and having dusted them with a fluorescent powder which is invisible to the naked eye but which can be viewed under a special light. Anderson and police officers Rigoni, Laurence, and Policewoman Scannell then proceeded in an unmarked police car to the vicinity of 3108 W. Madison Street in Chicago. Anderson entered the El Quillo tavern at that address, while the officers watched from their car, parked across the street. About ten minutes later, the defendant emerged from the tavern with another man, and Officers Rigoni and Laurence followed them on foot while Policewoman Scannell remained in the car. The men walked about a block to a rooming house, from which they emerged about five minutes later, according to Officer Rigoni, and walked back to the tavern. About three minutes after their return, Anderson emerged from the tavern and turned over to the officers a tinfoil package which the officers determined contained narcotics. The officers entered the tavern, and arrested the defendant and his companion. A search of the defendant and of the currency in the cash register did not produce the marked bills. The officers then produced a "black light," and tested the hands of persons within the tavern. The defendant's hands showed the presence of traces of the powder which the officers had dusted onto the currency given Anderson. Officer Rigoni testified that he then informed the defendant of this fact. The officers later searched the rooms of the defendant and his companion at the rooming house, but failed to find any of the marked money.

Anderson testified that when he entered the tavern he approached the defendant and told him that he wanted to purchase some narcotics. The defendant told Anderson that he would sell a half a gram of "stuff" for $25, and that Anderson would have to give him the money and then wait for ten minutes. When Anderson told the defendant he only had $15, the defendant conferred with his companion and then told Anderson, "I'd have to take a little out of the bag." Anderson put the money on the bar, and the defendant picked it up, counted it, and put it in his pocket. The defendant and his companion then left the tavern, and returned ten or fifteen minutes later and gave Anderson a tinfoil package. Anderson then left the tavern and turned the package over to the police.

The defendant testified that on the night he was arrested he did not see Anderson in the tavern, did not talk to him, and did not sell him narcotics. He said that he had seen Anderson once before, in a poolroom about a month earlier, but had not talked to him. He testified that on the evening of his arrest he and his companion left the tavern and walked to the rooming house where they both lived, and that twenty minutes later, after the defendant had changed his shoes, both men returned to the tavern. When the police entered the tavern, the defendant was drinking beer and talking to the bartender. After the police had searched the defendant, and had taken away his money, they tested his hands under the "black light," and according to the defendant told him nothing about the results of that test. His money was then returned to him. The police then searched both the defendant's room and that of his companion, and took both men to the police station.

The defendant first contends that he was deprived of a fair trial because he was not permitted to cross-examine Anderson, in the presence of the jury, as to burglary charges then pending against him. Relying upon People v. Mason, 28 Ill.2d 396, 192 N.E.2d 835, defendant contends that questioning as to charges pending against the informer was permissible to show that Anderson's testimony might be influenced by interest, bias, or motive to testify falsely.

On cross-examination, Anderson was asked, "Were you ever picked up for burglary?" The State's objection was overruled, and the witness answered in the affirmative. Counsel then inquired, "How many times were you picked up for burglary?", and when the State again objected the court and counsel discussed the matter in chambers. Upon returning to open court, the trial judge ordered stricken "any questions about any arrest of this witness for burglary or anything of that kind," and instructed the jury to disregard them.

The record shows that on the following day, the court permitted defense counsel to interrogate Anderson under oath, but outside the presence of the jury, as to an arrest for burglary and possible harassment by the police. At this hearing, Anderson testified that in the last eight years he had been arrested three or four times for disorderly conduct, as a "loitering addict." He also testified that in December of 1962 he has been arrested for attempted burglary, and that the charges resulting from that arrest were still pending. Counsel asked whether Anderson had ever been promised that the burglary charge would be dropped if he cooperated with the police in having arrested people suspected of selling drugs, and Anderson answered no. At the close of the hearing, all of which was outside the presence of the jury, the court held that counsel had no evidence of any such promises by the police, and that testimony before the jury as to the burglary charge was not proper in the case. Upon the request of the Assistant State's Attorney, the court admonished defense counsel not to go into any of Anderson's arrests in the presence of the jury.

In People v. Mason, 28 Ill.2d 396, 192 N.E.2d 835, the defendant was convicted of the unlawful sale of narcotics in a transaction which involved an informer and three narcotics officers. At the trial, the officers testified for the State but the informer did not. In cross-examining the officers, defense counsel sought to establish that some or all of the officers had been suspended from the police force and that criminal charges were then pending against them. Objections by the State to these questions were sustained by the court on the grounds that the questions were immaterial and exceeded the scope of direct examination. At a discussion in chambers, it was admitted that charges were pending against one of the officers.

On review, our Supreme Court reversed the conviction, holding that, ". . . the fact that a witness has been arrested or charged with a crime may be shown or inquired into where it would reasonably tend to show that his testimony might be influenced by interest, bias or a motive to testify falsely." 28 Ill.2d at 401. The court then discussed Alford v. United States, 282 U.S. 687, decided in the United States Supreme Court in 1931, and other cases stating the same rule. Applying that rule to the facts of the Mason case, the court stated:

In the present case we have not only the apparent arrest and indictment of one, if not two, of the State's witnesses, but also their suspension as narcotics investigators, in which very capacity they arrested the defendant and are now testifying against him. Since the informer did not testify, the inspectors were the sole witnesses to the alleged sale of narcotics. Under these circumstances the defendant had a right to cross-examine to show whatever bias or prejudice the witnesses might have. The effect of such evidence in determining whether or not the witnesses were in fact biased or prejudiced would be for the consideration of the jury.

The scope of cross-examination is generally within the trial court's discretion. However, the widest latitude should generally be allowed the defendant in cross-examination for the purpose of establishing bias. (People v. Naujokas, 25 Ill.2d 32.) In the present case the trial court cut off all inquiry on subjects with respect to which the defense was entitled to a reasonable cross-examination. This was an abuse of discretion and prejudicial error. (28 Ill 2d at 402, 403.)

In the case at bar, the sole witness to the alleged sale was the informer, Anderson. It was admitted during the hearing outside the presence of the jury that criminal charges were then pending against Anderson. It is true that defense counsel apparently was unable to present any evidence of actual promises made to Anderson by the police, or of any harassment. But under the rule as stated in Mason and as followed in People v. Soto, 64 Ill. App.2d 94, 212 N.E.2d 353, the determination of whether or not the witness was in fact biased or prejudiced was for the consideration of the jury. For this reason, the defense was entitled to ...

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