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09/30/87 the People of the State of v. William Johnson

September 30, 1987





515 N.E.2d 825, 162 Ill. App. 3d 12, 113 Ill. Dec. 840 1987.IL.1464

Appeal from the Circuit Court of Cook County; the Hon. L. Michael Getty, Judge, presiding.


JUSTICE LORENZ delivered the opinion of the court. SULLIVAN, P.J., and MURRAY, J., concur.


Following a jury trial defendant William Johnson was convicted of three counts of delivery of a controlled substance and was sentenced to a 30-month period of probation. On appeal defendant contends: (1) the prosecution improperly used its peremptory challenges to exclude all blacks from the jury; and (2) the trial court erred when it failed to require the United States Attorney to reveal information about an ongoing investigation of the Harvey police department which employed a key prosecution witness.

We affirm defendant's convictions but remand the cause for further proceedings.

It is undisputed that in the jury selection process the prosecution exercised 7 of its 10 peremptory challenges to exclude black potential jurors, with the result that the jury trying this black defendant was all white. Defense counsel asked the court to ascertain the bases for these challenges. The prosecutor responded that he was not obligated to explain them. The trial court reluctantly agreed that no such explanation was required under the State of Illinois law at that time. Given this record it is clear that defendant is entitled to a hearing pursuant to Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712, and Griffith v. Kentucky (1987), 479 U.S. 314, 93 L. Ed. 2d 649, 107 S. Ct. 708. Accordingly, we must remand the cause for a Batson hearing.

We next consider defendant's contention that the court erred in failing to require the United States Attorney's office to reveal evidence of its investigation of the Harvey police department. Consideration of this issue necessitates a review of the pertinent trial evidence.

The State's key witness was Andre Davis, a Harvey police officer on special assignment to the Northeastern Metropolitan Enforcement Group . According to Davis, on September 24, 1983, he was informed by another Harvey police officer, Robert Robins, that a narcotics seller was operating in downtown Harvey. At 2:45 p.m. Robins and Davis met at a downtown Harvey street corner where Robins stated that defendant would meet them at 3 p.m. Davis was in plain clothes, driving an unmarked car, but Robins was in uniform. Defendant walked up to them and told Davis he heard he was looking for drugs. According to Davis defendant then sold him, for $10, six tablets subsequently found to contain .7 grams of phenobarbital. This sale was conducted in Robins' presence. At trial Davis denied ever seeing defendant before that date but he was impeached with his preliminary hearing testimony that he had seen him before. Davis also admitted that two different lists of prerecorded bills used in this transaction conflicted as to the denominations of bills used. On one list Davis had indicated he used a $10 bill. On the other list he indicated use of a $5 bill and five singles.

Davis further testified that on September 30, 1983, at 4:30 p.m. he met with defendant in the Harvey library parking lot. This meeting was observed by MEG Officers Ron Michalski and George Murray, stationed in separate surveillance cars. The defendant entered Davis' car and after some bargaining they agreed to a sale of 30 tablets for $40. On defendant's instructions they drove to a nearby location. Defendant went into a building and emerged with a manila envelope which he gave to Davis in return for $40. Subsequent analysis of tablets in the envelope established that they contained 3.6 grams of phenobarbital.

On October 3, Davis spoke by telephone with defendant, who offered to sell him 100 tablets for $200. They arranged to meet at the Harvey public library at 1 p.m. the next day. The following day MEG agents Michalski, Murray and Wesley Thompson set up surveillance in the library parking area. Davis waited at the scene in his undercover vehicle. Defendant walked past the car, looked around, and then got in. Defendant gave Davis a manila envelope and a paper packet, describing the latter as a free sample. Davis gave him $200 and asked him to count it. Davis then gave an arrest signal, the other officers approached, and defendant was arrested after a scuffle. The manila envelope was subsequently found to contain 11.9 grams of phenobarbital.

The State did not present the testimony of Robins, the uniformed police officer who allegedly participated in the first drug purchase. The State did, however, present the testimony of two of the three surveillance officers, Michalski and Thompson. Michalski testified that on September 30 he saw defendant enter Davis' car and then saw the two men drive to the nearby YMCA. Defendant went into that building for 10 minutes and then walked up to Davis' car and leaned in Davis' open window. Contrary to Davis' testimony concerning the delivery of a manila envelope, Michalski stated that he saw nothing in defendant's hand. Davis subsequently showed him the manila envelope containing pills.

Michalski testified that he also observed the October 4 incident. He saw the defendant walk past Davis' car, look in all directions, and then enter the car. Two minutes later Davis gave the arrest signal. When Michalski reached the car he saw Davis with cash in one hand and an envelope in the ...

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