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People v. Molsby

OPINION FILED NOVEMBER 17, 1978.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

ADOLPHUS MOLSBY, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. PHILIP FLEISCHMAN, Judge, presiding.

MR. JUSTICE WILSON DELIVERED THE OPINION OF THE COURT:

After a jury trial, defendant, a Chicago police officer, was convicted of possession of a controlled substance and of cannabis and was sentenced to serve concurrent terms of 1 to 3 years and 6 months in the penitentiary. His appeal originally raised 12 separate issues. Three have been stricken on the State's motion for failure to file transcripts of certain pretrial proceedings and a fourth apparently has been incorporated into another of the issues. The remaining issues are whether a verdict of guilty may be sustained: (1) when the trial court has denied the motion of the defense to produce an informer; (2) when the trial judge has refused to allow a search warrant into evidence; (3) when the State has withheld evidence from the defense; (4) when the trial court has refused to allow the defendant to put on evidence regarding his character; (5) where the prosecution has demeaned the character of a defense witness; (6) when the trial court has limited the defense in putting on evidence; (7) where based on allegedly false and perjured testimony; and (8) when the trial court has refused to offer certain instructions of the defense. We affirm.

State's Case

The evidence for the State indicates that on the night of February 2, 1972, several members of the "D" squad, a special group of law enforcement officers formed to seek out Chicago police officers engaged in illegal narcotics trafficking, went to 7150 South Cyril to execute a search warrant on the person of John Finley, a known narcotics user and dealer, and on his apartment. The search warrant had been issued on the basis of information provided by an informer. The informer had told Special Agent Charles McKissack of the Illinois Bureau of Investigation (IBI) that he had purchased heroin from Finley in his apartment. Several officers testified that they had information that a police officer by the name of Adolph also was present at the time of the sale. However, his name was not mentioned in the search warrant. Officer Floyd Turner testified that this information was not mentioned in the search warrant because the "D" squad was a confidential unit and they did not want to reveal anything until the officer was apprehended.

At approximately 8:40 p.m. on the evening in question, the informer apparently told several of the officers that Finley and Adolph were selling drugs in Finley's apartment. At 8:45 p.m., Agents McKissack and Coleman of the IBI, Sergeants Turner, Mosely, and Williams of the Chicago Police Department's Internal Affairs Division, Assistant State's Attorney Louis Bianchi, and others entered the building at 7150 South Cyril. They proceeded to Finley's apartment to conduct the search. Upon entering, the officers saw three children "huddled up" next to two women in the living room. Neither Finley nor Adolph was present.

During the search, Turner had left the apartment to check a vehicle parked outside the building. On his return, he saw defendant and Finley entering the building. The three of them took the elevator to the 5th floor. When Finley got off, one of the officers said, "There is Finley." Defendant then left the elevator and went in the opposite direction through a door and down a staircase. Turner followed defendant and, after announcing that he was a police officer, ordered him back up the stairs. When defendant returned, Coleman came over to give assistance to Turner. Defendant told Turner that he was a police officer and that his name was Adolphus Molsby. Turner then said, "Aw, Adolph", or "Adolphus." He said that he was familiar with the name "Adolph" because of information previously provided by the informer. On cross-examination, he stated that he had told the grand jury that the officer was known as Adolphus Molsby.

After giving his name, defendant asked if he could get "a break." Turner then took two bags containing food from him and removed his service revolver. Defendant again asked for "a break." Turner then searched defendant's pockets and found a small tinfoil packet and a coin-type manila envelope containing marijuana. After this was discovered, defendant once again asked for "a break." He was placed under arrest.

Turner and Coleman then took defendant into the washroom of Finley's apartment to conduct a more thorough search. Mosely also was present during this search. While removing his coat, defendant reached into the inside pocket. Turner ordered him to remove his hand and when he did, Turner reached in and discovered a small tinfoil packet of heroin in the pocket. Upon his further search, Turner discovered a pipe containing a residue of marijuana and a vial containing traces of cocaine in defendant's coat and a matchbook containing a marijuana cigarette in defendant's pants. Defendant continued to ask for "a break" throughout the search. At one point, Mosely told him to talk to Bianchi, but defendant did not respond to this suggestion.

At the completion of the search, defendant told Turner that the coat did not belong to him. He said that he had just "grabbed" it from a pile of clothes that were on the bed, and that he had put his own coat in the bedroom closet. Turner testified that both the coat and pants seemed to fit defendant. Nevertheless, the officers searched the bedroom closet, but they did not find any men's clothing. Defendant then said that his coat was in the closet by the bathroom. The officers searched that closet, but they did not find defendant's coat. Turner then told defendant to tell them the truth. Defendant stated that he worked as a security guard at a school and had taken the drugs from some students. He said that he had simply neglected to inventory the drugs.

Later that evening, Turner left the apartment with defendant. Before returning to the "D" squad's headquarters, he stopped to search defendant's car. He found nothing unusual in the car. On cross-examination, he stated that he found some clothing in the trunk of the car.

Defendant's Case

The evidence for the defense indicates that at either 7 or 8 p.m. on February 2, 1972, defendant arrived at Finley's apartment with his girl friend, Andrea Scott, and her child. When they arrived they noticed several moving boxes and many items of clothing piled on the bed. Finley, defendant's brother-in-law, asked defendant to help him move his belongings to his mother's house. Defendant agreed to help, but he said that he did not want to soil the clothes which he was wearing. Finley then offered to let defendant wear some of his clothes. Defendant put on a coat and a pair of pants, and began to take some of the boxes down to his car.

Several witnesses who had seen defendant earlier in the evening were shown a photograph which was taken of defendant after his arrest. They testified that the clothes which he was wearing in the photograph were not the same as the clothes he was wearing when they had seen him. Scott, who had been with defendant throughout the evening, and Finley also testified to the change in clothing.

Defendant testified that after he had changed into Finley's clothing, he took his own clothing and put it into the trunk of his car. He said that he removed his service revolver and star folder from the pants, but he left his wallet and his money in his pants. Finley testified that defendant did not take his clothes down to his car, but that he left them in the apartment. After defendant and Finley had filled defendant's car with boxes, they drove to Finley's mother's house.

After stopping for some food, defendant and Finley returned to the building and they took the elevator up to Finley's apartment. When Finley got off the elevator, defendant heard someone say, "there's Finley, there," and then saw four men jump out with carbines. He said that he immediately froze because he assumed that they were police officers. He then told Turner, who had been on the elevator with him, that he was a police officer. He handed him his star folder.

When Turner found the manila envelope in his pocket, defendant told him that the clothes were not his, that he was only helping his brother-in-law move, and that his clothes were in his car. He testified that he never had any cause to check the pockets of the coat or pants which he was wearing. He said that he did not feel anything bulky in the pockets. Defendant said that he knew Finley had been previously arrested, but he did not know that he was an addict. Finley testified that he had put some of his drugs in the pockets of some of his clothing in preparation for the move from his apartment. Defendant testified that during this initial search he never asked any of the officers for "a break." Scott testified that she had heard defendant twice ask if he could be of some assistance.

When the officers took defendant into the bathroom, he again said the clothes were not his. He asked to talk to the officer in charge. He then explained to him that his clothes were in his car. Defendant denied ever reaching into the inside coat pocket as Turner had testified. He denied ever telling the police officers that his coat was in the bedroom closet. He also denied saying that he had taken the drugs from students, although he did state that he once worked for the Board of Education in a security capacity.

When the police officers left the apartment, they went to defendant's car. They opened the trunk and found the clothing which defendant claims he was wearing earlier in the evening. Later that evening, Scott opened the trunk and took money from defendant's pants in order to pay his bond. She testified that those were the same pants he was wearing when they arrived at Finley's apartment.

OPINION

The first issue we must consider is whether the trial court erred in denying the defense motion to produce the informer. The informer provided the information which was the basis for the issuance of the search warrant. He also told several police officers that when they executed the search warrant on Finley's apartment they would find Finley and a police officer by the name of Adolph, or Adolphus, dealing in drugs. Defendant contends ...


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