APPEAL from the Circuit Court of Cook County; the Hon. ALBERT
GREEN, Judge, presiding.
MR. JUSTICE WILSON DELIVERED THE OPINION OF THE COURT:
Following a jury trial, defendant was convicted of delivering a controlled substance (Ill. Rev. Stat. 1979, ch. 56 1/2, par. 1401(b)) and sentenced to three years in the penitentiary. On appeal he raises these issues: (1) he was not proved guilty beyond a reasonable doubt; (2) certain items seized from him should not have been entered into evidence because they were the fruits of an illegal search; (3) the trial court erred in sustaining the prosecution's objection to defendant's testimony concerning a conversation he heard between two police officers; (4) defendant's privately retained counsel conducted the defense incompetently; and (5) defendant's sentence was excessive. We affirm.
On August 27, 1978, Investigator Richard Kolovitz of the Narcotics Division of the Chicago Police Department told fellow investigators Eugene Shepherd and James Brady that he had received information from a reliable informant concerning the sale of $10 packets of narcotics from a basement apartment at 3942 West Polk Street. Investigator Kolovitz requested the two officers to go to the apartment, undercover, to make a "buy." In preparing for the assignment, Investigators Shepherd and Brady photocopied a $10 bill to use in the narcotics purchase. They time-stamped the copy and left it at the police station.
At approximately 11 o'clock that night the two investigators, in plain clothes, approached the apartment building at 3942 West Polk Street. Investigator Brady hid in a gangway across the street from the building, where he could observe, while Investigator Shepherd continued walking to the apartment building. The door to the basement apartment was located under the front porch of the building, approximately 10 steps below ground level. The door was secured on the outside by "burglar bars" that were attached by a large lock. There was a light in the center of the doorway. Reaching through the bars, Shepherd knocked on the door. When no one responded, he went back up the steps and talked to a man who was sitting on the front porch of the building. The man pointed to the nearby corner of Pulaski and Polk. Shepherd began walking toward the corner, where he noticed 7 to 12 persons standing around. Before he reached the corner, a man approached him and asked, "Who are you looking for?" Shepherd replied that he was looking for Jones in order to buy some heroin. The man, later identified as defendant, then identified himself as Jones and told the investigator to follow him. The two men walked back to 3942 West Polk, where defendant left Shepherd to wait on the sidewalk while he went downstairs to the basement apartment. Defendant unlocked the burglar gate, opened the door, and entered the apartment. He then relocked the gate and called Shepherd to come down the stairs. In exchange for the prerecorded $10 bill, defendant gave Shepherd a small tinfoil packet. Shepherd then left and went to his car, where Brady, who had been watching the transaction from his hiding place, met him. The two officers tested the substance in the foil packet and determined it was heroin. They returned to Area One Headquarters to inventory the packet and have it analyzed in the crime lab.
The following day, August 28, the investigators obtained a search warrant for the basement apartment at 3942 West Polk Street. The warrant also authorized the search of a male Negro, five feet seven inches, 169 pounds, approximately 35 years old, with a medium complexion and a thin mustache.
Investigators Brady, Shepherd, Kolovitz, and other officers of the unit left in separate cars to execute the warrant. Kolovitz and Brady, who were assigned to one of the undercover cars, received a radio call from Shepherd, which informed them he had seen the suspect sitting on a stool in front of 820 Pulaski Street. Shepherd waited for an acknowledgment of his message, then left to meet his supervisors in front of the Polk Street apartment. When he arrived, he accompanied several other officers to the basement apartment. The burglar gate was locked. The officers knocked on the door but received no response. They then pried open the burglar gate with a crowbar and sledge hammer to enter the apartment. No one was there. They searched the apartment but found no narcotics.
In the meantime, Officers Brady and Kolovitz had driven to 820 South Pulaski, where defendant was in front of a record shop along with six or eight others. The officers arrested defendant, searched him, and discovered a set of keys in his pocket. The officers advised him of his rights and told him he was being arrested for selling narcotics. The officers, in response to a radio message, then drove with defendant to the Polk Street apartment. They entered the basement apartment and put defendant, handcuffed, into a chair. He denied having anything to do with the apartment. Officer Brady then took two sets of keys from defendant's pocket and discovered that one of the keys opened the lock on the burglar gate. The officers took defendant to Area One Headquarters and searched him again. They found $253 in cash in his pocket. One of the bills matched the photocopy of the $10 bill that Officer Shepherd had used in purchasing the packet of heroin.
At trial, defendant presented several alibi witnesses. A longtime friend of defendant's, Mack Williams, testified that on August 27, 1978, at 3:30 p.m., he went to defendant's birthday party at the apartment of defendant's sister, Rosetta Miller. According to Williams, defendant and his wife arrived between 4 and 4:30 p.m. and left at about 11:45 p.m. He further testified that defendant stayed in the apartment during the entire time.
Defendant's sister, wife, and brother, Robert Watkins, also testified that they were present at the party with defendant. Their testimony was substantially the same as that of Mack Williams.
John Watkins, another of defendant's brothers, testified that he was renting the apartment at 3942 West Polk Street at the time of the occurrence. He further testified that defendant, who lived at 638 North Long Street, had keys to the apartment. John Watkins also stated that he had seen defendant in the Polk Street neighborhood numerous times during August of 1978.
Defendant also took the witness stand. He testified that he and his wife had arrived at his sister's apartment for the party between 4 and 4:30 p.m. They left at approximately 11:45 p.m. and went directly home to bed. Defendant denied selling narcotics to Officer Shepherd that night. He testified that he was arrested the next evening, August 28, 1978, when he stood in front of a pool hall at 806 South Pulaski with several other men. The officers frisked him and told him to get in the back seat of their car. Defendant testified that they drove to an alley where the officers took his money and his keys. They handcuffed him and put him back in the car. After waiting for 30 to 40 minutes, defendant testified, they drove to 3942 West Polk Street, where other officers were waiting. Leaving him in the car, the officers broke down the door of the apartment, entered, and searched it. Defendant further testified that they took him into the apartment, sat him in a chair, and asked him where the "dope" was located. Defendant answered that he did not know. Then the officers took him to the police station. Defendant stated that the officers told him that they would release him if he gave them "a better bust." When he refused, Officer Brady told him that he put his $10 bill in with defendant's money.
At the conclusion of the trial, the jury returned a guilty verdict against defendant. The trial court ordered a presentence investigation and set a date for the hearing.
At the sentencing hearing, the prosecution argued in aggravation that delivery of heroin, a Class 2 felony, was a "horrendous" crime. The assistant State's Attorney argued that heroin has destroyed many lives and that many criminal defendants are heroin users; that the court should send a message to defendant and others who sell or have sold heroin that the courts> will not tolerate such destruction. He concluded by acknowledging that defendant had no previous convictions, but that he had an arrest record. He asked the court to sentence defendant to a period of incarceration in excess of the minimum sentence.
In mitigation, defense counsel presented to the court numerous affidavits in support of probation from defendant's friends and family. Whelma Burgiss testified in support of her affidavit. She said she was pastor of Range Memorial Baptist Church and had known defendant for over 10 years. She stated that if he were placed on probation her church ...