Appeal from the Circuit Court of Cook County; the Hon. Maurice
D. Pompey, Judge, presiding.
PRESIDING JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:
Defendant, Peter Gordon, following a bench trial, was found guilty of possession of a controlled substance (cocaine) with intent to deliver and was sentenced to a prison term of 12 years. He appeals, contending that: (1) he was not proved guilty beyond a reasonable doubt; (2) the trial court improperly restricted his cross-examination of the only prosecution witness; (3) the trial court erred in denying his motion for a new trial based on the alleged failure of the State to inform him of a Federal investigation concerning the State's witness; (4) the search warrant authorizing the search of his home was overbroad; and (5) his sentence was excessive. We reverse and remand for a new trial.
Acting pursuant to a search warrant, Chicago police officers entered the first-floor apartment at 3229 North Seminary Street in Chicago, where defendant resided. The warrant directed the police to search the "entire 1st floor apartment at 3229 No. Seminary Ave., Chicago, Illinois." Detective Thomas Andricopoulos and three other police officers executed the search warrant. Andricopoulos was the only witness called by the prosecution. He testified that the police gained entry to defendant's apartment by means of a ruse involving two uniformed police officers. These men handcuffed another officer and activated the flashing blue lights on their squad car. The witness rang defendant's door bell. After defendant answered the door, the witness testified that he told defendant that the police had caught the man in the handcuffs tampering with an automobile in front of the house. Defendant opened the door and the witness identified himself as a police officer and served the warrant on defendant. The witness and three other officers entered the apartment.
At the hearing on defendant's motion to suppress, Andricopoulos described the building as a two-story brownstone building. At trial, he stated that a flight of stairs leads from the street level to a vestibule outside the front door to the first-floor apartment. A corridor extends from the front door to the rear of the apartment. On the left side of the corridor is a bedroom and on the right side is a washroom. Further down the corridor is a kitchen. Just inside the front door is an open staircase which winds down to a lower level. This lower level consisted of a large room which had been remodeled and furnished with a waterbed, a chest of drawers, a night stand, a television set, and a small bar about six feet long. A washroom was situated to the rear of this room. The other apartment on the top level of the building did not connect to this lower level.
When the officers entered the apartment they searched defendant's person but found no contraband. Defendant remained on the upper level in the custody of one of the officers while Andricopoulos and another officer searched the lower level. When the police reached the lower level, Andricopoulos observed a young man whom he identified as James Cruz sitting on the bed watching the television. The officers searched Cruz but found nothing illegal on his person. Cruz was brought to the upper level of the apartment and the police proceeded to search the lower level more thoroughly. On an open shelf behind the bar, Andricopoulos found three clear plastic bags. Two of the bags contained a white crystalline substance and the third contained green plant material. The parties stipulated that if called to testify, Mary Fitzgerald, a chemist of the Criminalistics Division of the Chicago police department, would testify that one of the bags contained 740 grams of a substance containing cocaine, that a second bag contained 312 grams of a substance containing cocaine, and that the third bag contained 21.5 grams of marijuana.
Andricopoulos testified that Cruz was 15 years old, was about "five feet six inches" tall, and that there was indication that Cruz lived in the building. Andricopoulos testified that he recovered the following items from the chest of drawers in the lower level: a traffic bureau violation listed in the name of "Peter Dordin, 3700 North Paulina, Chicago, Illinois," with a change of address sticker marked "Peter Gordin, 3229 North Seminary, first floor"; a check in the name of Peter A. Gordin, 3229 North Seminary, Chicago, Illinois; and a notice of statement for services marked Peter Gordin, 3229 North Seminary, Chicago, Illinois, for $53 for services rendered. Andricopoulos also testified that he found clothes in some closets on the lower level and that the clothes were too large for Cruz.
On cross-examination, defense counsel attempted to question Andricopoulos concerning his reasons for failing to charge Cruz with any crime. Specifically, defense counsel sought to ask the witness whether he had learned that Cruz' mother was a police officer and whether the witness had allowed Cruz to be released after the witness had talked with his mother. The trial court sustained the prosecution's objections to these questions on the ground of relevance. On cross-examination, Andricopoulos admitted that his police report did not mention the presence of any person in the apartment other than defendant.
Defendant testified in his own behalf. He stated that he lived at 3229 North Seminary and was employed by an advertising agency at a salary of $650 per week. He testified that shortly before the police arrived at his house, Cruz, whom he had known for several years and whom he described as 19 years old and "six feet six inches" tall, arrived at defendant's apartment carrying a package wrapped in brown paper. The two men talked for about an hour and then they heard a loud knocking on the door and someone shouted, "[O]pen you, police." Cruz looked surprised and ran down to the basement with his package. Defendant stated that he then went to the front door and let the police inside. The police went downstairs, brought Cruz back up in handcuffs, made a telephone call and then released Cruz. Defendant denied ever having cocaine in his apartment, denied ever selling or using cocaine, and denied any knowledge of the cocaine found in the apartment.
On rebuttal, Andricopoulos testified that he did not find any brown paper near the contraband or anywhere else in the lower level of the apartment, that he did not hear any furtive movement in the lower level, and that Cruz, though frightened, was not perspiring.
The parties stipulated that defendant was placed on probation in Ohio on December 10, 1976, that probation was revoked on July 21, 1977, and that defendant served 22 months of a 1- to 10-year sentence. After hearing arguments of counsel, the trial court found defendant guilty of possession of a controlled substance with intent to deliver and possession of a controlled substance and entered judgment on the former finding.
Defendant filed a motion for a new trial which alleged, inter alia, that the State's Attorney had knowingly concealed the pendency of a Federal investigation of Andricopoulos. At the hearing on the motion, the prosecutor denied any knowledge of the investigation. Defense counsel stated that the investigation was a "secret investigation," which he had learned about from a television news program and whose existence had been corroborated by the United State's Attorney's office. The trial court denied the motion.
At the sentencing hearing, both sides presented arguments and a presentence investigation report was received. The trial court sentenced defendant to 12 years for the offense of possession of a controlled substance with intent to deliver. Defendant appeals.
We first consider defendant's argument that the search which resulted in the seizure of the contraband was beyond the scope of the warrant and that therefore the trial court erred in denying defendant's motion to suppress. The warrant directed the police to search the "entire 1st floor apartment at 3229 No. Seminary Ave., Chicago, Illinois." Defendant contends that because the warrant specified the "first ...