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People v. Gonzalez

OPINION FILED AUGUST 11, 1980.

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

v.

DAVID GONZALEZ, A/K/A DOMINGO GONZALEZ, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. BRIAN L. CROWE, Judge, presiding.

MR. PRESIDING JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:

After a jury trial, David Gonzalez, otherwise known as Domingo Gonzalez (defendant), was found guilty of delivery of less than 15 grams of heroin (Ill. Rev. Stat. 1975, ch. 56 1/2, par. 1401(b)) and sentenced to 3 years. He appeals.

Officer Michael Ward of the Chicago police department testified he met with Officers John Miller and Cynthia Kane at police headquarters on the evening of January 25, 1978. Officer Miller gave Officer Kane $45 for a controlled drug purchase. Officer Ward then drove to the area of LeMoyne and Campbell, accompanied by Officer Kane and an informant whose name was not disclosed. Ward parked his car about 50 feet from the front entrance of a corner tavern. The corner was well lighted. Officer Ward observed Officer Kane and the informant cross the street and traverse the sidewalk. They approached another man standing right at the tavern door. Officer Kane spoke to the person in the doorway and the two of them entered the tavern. Officer Ward identified this person as the defendant. Meanwhile, the informant walked about 10 feet to the north of the entrance and spoke with three persons standing there.

About five minutes later, the defendant came out of the tavern and walked south on Campbell Avenue where he entered a building. About one minute later the defendant left this building and returned to the tavern. Some three minutes later Officer Kane left the tavern and returned to the car. She gave Officer Ward two small packets of tan powder. Defendant and the People later stipulated the powder was heroin. Officers Ward and Kane returned to police headquarters.

Defendant brought out on cross-examination of Officer Ward that Officers Ward, Kane, and Miller met with the unnamed informer shortly prior to the purchase of the narcotics. The officer did not recall the informant's last name. No written report of this meeting was made. The informant had received consideration on pending cases as a result of his activities on the date of the arrest. This informant was in fact the person who had driven to the site with Officers Ward and Kane.

Officer Miller testified he drove an unmarked car on the evening in question and parked 100 to 150 feet away from the corner. He saw Officer Kane and the informant walk across the street together. The informant stopped and spoke to several persons who were at the curb some 8 or 10 feet from the tavern entrance. Officer Kane continued to the entrance and spoke to a person standing there. Officer Miller identified the defendant as that person. Officer Kane and defendant entered the bar. The informant never entered, but remained on the corner speaking with the other people. Miller saw the defendant leave the bar and shortly return. From two to four minutes later Officer Kane left the bar and entered the car of Officer Ward. The informant remained near the curb. Miller returned to police headquarters where he received the heroin from Officer Ward.

Officer Cynthia Kane testified she left the car with the informant. Officer Ward remained in the car. As Officer Kane and the informant approached the tavern entrance, she saw a man standing there. She identified this man as the defendant. She also saw two or three people standing at the curb. The defendant said to the informant, "How are you doing?" The informant nodded his head. The informant then continued walking some 8 to 10 feet to where the other people were standing by the curb. Officer Kane stopped at the tavern entrance face-to-face with defendant.

Defendant said to her, softly, "Do you want a cop?" The witness nodded her head in the affirmative and held up two fingers in front of the center of her chest. Officer Kane testified the phrase he used was a question as to whether she wanted to purchase heroin. Defendant told Officer Kane it would cost $50 "because he had the best dope on the West Side that night." She responded she would give him $45, "and if it was good I'd come back and buy more." Defendant told her to enter the tavern and she followed him in. The bar was well lighted. Defendant went behind the bar for about 6 or 8 feet and then stopped. The witness remained on the customers' side of the bar. Defendant reached under the bar and then stood up. The witness testified that defendant said his stash was all sold out, and he'd have to go home for some more. Defendant told the witness to stay there and he left. In about three minutes he returned. Defendant then gave her two plastic bags filled with tan powder. She gave him $45, thanked him, and left.

The parties stipulated a certain court reporter would testify Officer Kane testified at a pretrial hearing before a different judge that the informant did not give her a description of the defendant. The defendant introduced the arrest warrant, and both sides rested.

I.

Defendant's first contention revolves about refusal of the court to require the People to disclose the identity of the informer. Prior to trial, counsel for defendant made a motion for disclosure of the identity of the informer. Evidence was heard, and the motion was denied. The case was called for trial before a different judge. Counsel for the defendant again raised the same point. The trial judge pointed out defendant had a right to renew the motion at any time counsel so desired. Counsel for the defendant brought up the issue of identity of the informer on a number of occasions on cross-examination together with the failure of the police officers to make an official report of their conversation with the informer prior to the narcotics purchase. The trial judge denied another motion then made by defendant regarding disclosure of the informer. The motion was denied by the trial judge before and after the testimony of Officer Kane. Defendant urges the informer was a material witness and denial of the motion by the trial court was reversible error.

The background of this issue has been well stated by this court. In People v. Molsby (1978), 66 Ill. App.3d 647, 653, 383 N.E.2d 1336, this court used the following language:

"In determining whether to order production of an informer, a court must balance the public interest in protecting a free flow of information against the individual's interest in presenting a defense. [Citations.] In making this balance, the court must consider all relevant factors, including the crime charged, the possible defenses, and the possible significance of the informer's testimony. [Citations.]"

In this regard the pertinent cases are Roviaro v. United States (1957), 353 U.S. 53, 1 L.Ed.2d 639, 77 S.Ct. 623, People v. Chaney (1976), 63 Ill.2d 216, 347 N.E.2d 138, and People ...


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