APPEAL from the Circuit Court of Cook County; the Hon. JAMES
M. SCHREIER, Judge, presiding.
MR. JUSTICE ROMITI DELIVERED THE OPINION OF THE COURT:
Defendant Donald Coleman was charged in four informations with possession of cocaine, PCP, heroin, and 1910 grams of marijuana. Following a jury trial in which he represented himself, *fn1 he was convicted of possession of marijuana but acquitted on the other three charges. Defendant was sentenced to a term of two to six years to run consecutively with a sentence he was serving for a prior unrelated offense.
On appeal defendant makes the following contentions: (1) the trial court erred in denying without a full evidentiary hearing defendant's motion to quash his arrest and suppress evidence; (2) the State failed to provide a proper evidentiary foundation for admission of the marijuana defendant allegedly possessed; (3) the State failed to prove that defendant possessed the marijuana; (4) the trial court erred in permitting the State to amend its answer to discovery on the day of trial to include a food stamp card belonging to defendant which was seized at the time of his arrest; (5) defendant's sentence should not have been made consecutive to his prior sentence.
We summarize the relevant evidence presented at trial. Officer Lovejoy Foster testified that at about 3 a.m. on June 19, 1975, he and four other police officers executed a search warrant for apartment 405 of a hotel at 6434 South Cottage Grove in Chicago. Two officers, Clarence Travis and Richard Peck, waited outside below the apartment's windows while the other three knocked on the door. A woman later identified as Barbara Williams opened the door but then attempted to close it after the officers announced their office and purpose. They forced open the door and then pried open the bars that were blocking the entrance. Foster recalled that there were lights on in the apartment and he could see the defendant lying in bed. Foster was the first to enter and as he did so he saw the defendant move toward a window and then throw a "package" out the window. Foster looked out the window and saw Officers Peck and Travis standing at a second level on a garage roof below the window. One of them told Foster "We have it." Foster placed defendant under arrest and observed Officer Leon Allen, who had accompanied him into the apartment, pulling Barbara Williams from the bathroom. In a search of the apartment a number of plastic and tin foil packages were found on a dresser along with an Illinois Department of Public Aid food stamp card bearing defendant's name and the address 6434 South Cottage Grove. Subsequent testimony by police chemist William Tyrrell established that these items included quantities of cocaine, heroin, and PCP.
Officer Allen testified that when he entered the apartment behind Officer Foster he observed Barbara Williams running to the bathroom with a bag. He entered the bathroom and found she had thrown a quantity of green crushed plant into the commode. He used a strainer to collect this material. Allen brought Williams out of the bathroom and saw Foster bringing defendant from the window. Officers Travis and Peck came upstairs to the apartment and said they had the contraband defendant had thrown out the window. They were carrying a large brown paper bag which was found to contain two packages. Peck tore the end off one package and they observed a green crushed plant substance inside.
At trial Officer Foster identified the bag and the packages that had been inside. He testified that these items had been taken to the area police station, inventoried, and then were taken to the police crime laboratory. Foster also testified that he subsequently picked up these items from the laboratory and brought them to court. A police chemist, Gerald Pazin, testified that he supervised an aide who tested the substance found in the bag and determined it to be 1910 grams of marijuana. When the bag was brought to the laboratory it was sealed, and it was again sealed after the tests were completed. In court Pazin identified the laboratory markings placed on the bags.
Officers Peck and Travis, who Officer Foster testified were on annual furlough at the time of trial, did not testify.
Thomas White, the manager of the Mansfield Hotel at 6434 South Cottage Grove, testified that in June 1975 defendant received mail at the hotel and was living in apartment 405. However he also testified that the apartment was rented to another man named Campbell, not to the defendant. Officer Foster had testified on this issue that although a police report gave another address for the defendant, the defendant had told him his address was 6434 South Cottage Grove. Foster also testified that hotel personnel told the police the room was rented to the defendant.
Barbara Williams was the sole witness presented by the defendant. She testified that she was arrested at the Mansfield Hotel on June 19, 1975, and subsequently pleaded guilty to possession of marijuana. She had lived there "sometimes" and had been living there "previously" with James Campbell. On direct examination she stated defendant did not live in the apartment, but on cross-examination she variously testified that defendant lived there, stayed there, and came over "practically every evening." She denied seeing drugs in the apartment other than the marijuana she placed in the toilet. She stated she did not know anything about defendant throwing marijuana out the window. Williams stated she had been using heroin for a year prior to trial.
• 1 Defendant first contends that under the holding of Franks v. Delaware (1978), 438 U.S. 154, 57 L.Ed.2d 667, 98 S.Ct. 2674, he was entitled to a full evidentiary hearing on his motion to quash his arrest and suppress evidence.
In Franks the United States Supreme Court held that under certain circumstances a defendant must be permitted an evidentiary hearing in which he could seek to challenge the truthfulness of factual statements made in an affidavit supporting a search warrant. The court succinctly stated the applicable standards:
"There is, of course, a presumption of validity with respect to the affidavit supporting the search warrant. To mandate an evidentiary hearing, the challenger's attack must be more than conclusory and must be supported by more than a mere desire to cross-examine. There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. They should point out specifically the portion of the warrant affidavit that is claimed to be false; and they should be accompanied by a statement of supporting reasons. Affidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained. Allegations of negligence or innocent mistake are insufficient. The deliberate falsity or reckless disregard whose impeachment is permitted today is only that of the affiant, not of any non-governmental informant. Finally, if these requirements are met, and if, when material that is the subject of the alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant ...