Appeal from the Circuit Court of Kane County; the Hon. Joseph
M. McCarthy, Judge, presiding.
JUSTICE UNVERZAGT DELIVERED THE OPINION OF THE COURT:
The defendant, Michael Hanlon, was charged in Kane County by information with the unlawful possession of more than 30 grams of a substance containing methaqualone and intent to deliver that substance. (Ill. Rev. Stat. 1983, ch. 56 1/2, pars. 1402(a)(9), 1401(a)(9).) The jury found him not guilty of intent to deliver, but guilty of possession. The trial court sentenced him to four years in the Department of Corrections.
He appeals, contending (1) the unnamed informant's tip which led to his arrest was unreliable and the evidence seized as a result should have been suppressed; (2) three remarks made in contravention of the trial court's ruling in limine denied him a fair trial; (3) his "terror-like" anxiety upon the threat of incarceration rendered his statement involuntary and it should have been suppressed; and (4) remand for resentencing is warranted where the offense for which he was convicted became a probationable one a short time after sentence was imposed.
At the hearing on the defendant's motion to suppress evidence, Batavia police detective Robert Wochner testified that at 6:30 p.m. on January 21, 1983, a man with whom the officer was familiar came to the police station. He was a 21-year-old male with whom Wochner testified he personally had had dealings in his professional capacity. Wochner also was aware of some other dealings with other Batavia police department personnel. The informant told Wochner that a man called "Mike" was selling Quaaludes at C.J.'s, a bar in Batavia; he saw several such sales take place. He told Wochner that "Mike" had over 50 tablets in a baggie in the outside lower right-hand pocket of a jacket, which Mike wore over a "C.P.O.," which the informant described in detail to Wochner. The informant showed Wochner a tablet he purchased shortly before from Mike for $3, a "Lemmon 714." Wochner compared the tablet with the Physicians' Desk Reference and determined that a "Lemmon 714" was methaqualone. Based on the detailed description of "Mike" from the informant, Wochner showed him a photograph of Michael Hanlon, the defendant here, and the informant identified him as the man selling tablets in the bar. Wochner and his partner, Batavia detective Frank Knight, went to the bar in question about 7:30 that evening and found the defendant. When the detective asked the defendant to step outside to talk, the defendant picked up and tried to put on a blue down jacket which appeared to be too small for him, and someone said, "Hey, that's not your jacket." Wochner saw the jacket which had been described to him by the informant on a chair across the room, and he asked the defendant if it belonged to him. When the defendant said "No," Wochner held up the jacket and asked the other people in the pool room if the jacket belonged to any of them, but received no answer.
Wochner then reached into the upper right breast pocket of the jacket and found a "court paper" containing the defendant's name; it was a DUI arrest from Elgin. He observed a plastic baggie in the lower right jacket pocket; took it out, and found it contained "several tablets marked `Lemmon 714.'" The defendant was placed under arrest.
On cross-examination, Wochner acknowledged that the report he prepared on the incident contained no reference to an informant. He could not recall testifying at the preliminary hearing that an informant, whose voice he testified he did not recognize, contacted him by telephone regarding this incident, rather than in person. He also stated that he did not ask the defendant if he could search his coat, did not see him violating any laws or ordinances, and did not attempt to secure either an arrest or search warrant. He testified there was no agreement or arrangement for having the informant go to C.J.'s that evening, and the informant did not work for Wochner for money. Wochner stated the informant was not ever a defendant in a case he had anything to do with, although he may have been arrested sometime. Wochner further testified he was unaware of any surveillance being done on the informant prior to 6:30 p.m. when he came to the police department, but it was "possible." To Wochner's knowledge, the informant was not a drug user.
Detective Frank Knight, Wochner's partner, testified essentially to the same sequence of events following their entry into the tavern. Prior to going to C.J.'s, however, Detective Knight testified on cross-examination that Wochner was waiting for a phone call back from the informant to confirm the fact that the defendant was still at the bar. The trial court denied the defendant's motion to suppress.
The defendant also filed a motion to suppress his statement made to the police after his arrest, and a hearing was held on that motion at which Detective Wochner testified again, stating that he and Detective Knight interviewed the defendant after his arrest at 7:45 p.m. According to Wochner the defendant was given his Miranda rights again, stated he understood them, and signed a rights waiver form. He did not appear to be under any stress nor was there anything unusual about his behavior, although he was worried about the charges against him. Wochner testified the defendant asked them if there was "any way that he could work or do something for us to possibly help himself in the case." Wochner replied they could speak to the State's Attorney's office about that, but that he would be charged first and anything "of that nature" would be dealt with at a later time. Wochner observed no unusual physical, psychological or emotional characteristics about the defendant at the time of the interview, and no threats were made against him.
On cross-examination, Wochner testified the defendant indicated to him that he was drinking 7-Up, and that the defendant did not smell of alcohol. Later, Wochner testified he did not ask the defendant if he had been drinking alcohol or whether he had taken any drugs that day. After the defendant signed the waiver form, there was some conversation about the offense before the booking procedures began. At some point during that conversation, the defendant "volunteered his services." Wochner did not specifically recall the defendant asking for a favor in the way of a recognizance bond. He believed they did discuss bond, but told the defendant they could not make any promises about that. As to whether either Wochner or Knight would be in bond court, Wochner said it was normal procedure for someone to be there. He denied the defendant's request for assistance with bond preceded his admission to the offense. Wochner testified he did not include the fact defendant said he had been drinking 7-Up in the tavern in his report of the interview.
The defendant testified on his own behalf, relaying his past problems with narcotics. He also testified to the psychological problems he experienced when locked up, once when he was in the Marine Corps for narcotics' use, and again in Kane County jail. Following his previous periods of being locked up, he had ended up in the hospital.
The defendant stated that he had consumed approximately seven beers, eight to 10 mixed drinks, four Quaaludes and some PCP before his arrest on January 21. He began drinking at noon when he had three or four beers with his lunch, and continued to drink two or three beers every now and then, stopping at different bars. He took two of the Quaaludes when he got up, and a couple more about 4:30 p.m. He took the PCP, also known as "dummy dust," sometime before 4:30. He testified Detective Knight advised him of his rights at C.J.'s, and he was given a printed copy of his rights at the police station, told to read it and to sign it if he understood. He told Wochner he did understand, and he signed the waiver. After the booking procedure, Wochner asked the defendant if he wanted to make a statement. The defendant asked him:
"[I]f I was to admit that the coat and pills were mine, if I would have a chance at bond call the next morning if one of them or both of them could be there to put in a good word for me to the Judge to at least get me on the street on a recognizance so that I could try and do something, find a job or something."
Wochner told the defendant that he could not promise anything but that either he or Detective Knight would be at the bond hearing the following day.
Defendant testified it was important for him to get out of jail because he was scared. Based on his two previous experiences being locked up while he was in the Marines and in the Kane County jail, he was afraid something might happen to him because he had ended up in the hospital in both of those instances of incarceration. He testified he decided to talk to the police:
"Because they told me that well, Mr. Wochner, he told me that one or the other one would be there to at least put in a good word for the Judge, and I thought that would at least give me a chance to get out on the street, so I told them I'd cooperate."
Detective Wochner appeared at the bond hearing, and the defendant testified he received a $10,000 recognizance bond.
Jack Crook, a psychiatric social worker who had been seeing the defendant for the previous three months, testified that the defendant suffered from an anxiety or panic disorder and the threat of confinement could produce a terror-like anxiety. In the witness' opinion, suicidal behavior could be a possible reaction by the defendant to the threat of incarceration.
On cross-examination, Crook testified a panic disorder is not a psychosis or neurosis, but a category of an anxiety stage. He testified the defendant's fear of incarceration could result in him not being cognizant enough to make rational decisions.
The court then ordered that Frank Knight must testify because he was a material witness to the defendant's statement. Detective Knight testified that the defendant was told his rights at the time of his arrest, and also at the police station. According to Knight, the defendant admitted that the coat in question belonged to him before asking if there was anything he could do to get out of the trouble he was in. Knight said the defendant did not receive promises or threats during the interview. He also testified that the defendant had said that he had only been drinking 7-Up in the tavern.
On cross-examination, he acknowledged that neither he nor Wochner had included this information in their reports. Based on defendant's demeanor and conduct while in his presence, Knight testified the defendant "appeared to be very straight." Knight stated that the defendant was very concerned about his prospects for release on bond. He did not recall the defendant stating that he was willing to talk, but he knew that the defendant knew he had a right to remain silent, so Knight assumed that he was willing to talk. The defendant was asked about the coat and he denied ownership. He was then shown the Elgin police department document found in the pocket of the jacket, and he said, "Yeah, well, it's my coat."
The court then denied the defendant's motion to suppress regarding any statements made after his rights were read to him.
On January 3, 1984, during a status call on the present case, the court was told that the defendant was admitted to Elgin Mental Health Center due to a suicide attempt.
On the day of trial, February 6, 1984, the defendant moved to exclude several items of evidence. His motion in limine to exclude his 10-year-old theft conviction was denied. The court granted his motion to exclude testimony characterizing the nature of the paper found in the defendant's jacket pocket.
In its opening statement at trial, the State referred to the paper found in the defendant's jacket pocket as a "court document." The defendant's objection was sustained.
Batavia police detective Robert Wochner testified for the State. Wochner stated that an informant came to the station to tell him that he had seen the defendant with illegal drugs at a nearby tavern. On cross-examination, Wochner acknowledged that there was no reference in his police report to the meeting with the informant, the informant's sex or reliability. He acknowledged that, at the preliminary hearing, he had testified that he received the informant's tip in a telephone conversation which was not recorded, and that he did not recognize the caller's voice.
Wochner said he and his partner then went to the tavern and asked the defendant if they could talk with him. After the defendant picked up a blue jacket, which another patron in the tavern said belonged to him, he denied owning the jacket which had been described to the officers by the informant. In the jacket pocket, the officers found a paper containing the defendant's name and in another pocket a baggie containing approximately 60 tablets.
According to Wochner, the defendant was informed of and stated he understood his rights, and signed a rights waiver form. Wochner and his partner, Frank Knight, interviewed the defendant who first denied ownership of the jacket containing the tablets. He admitted ownership, however, when he was shown the paper found in the pocket contained his name. The witness' reference to the paper as a "court document" was ...