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12/28/88 the People of the State of v. David Friend

December 28, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

DAVID FRIEND, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

533 N.E.2d 409, 177 Ill. App. 3d 1002, 127 Ill. Dec. 537 1988.IL.1883

Appeal from the Circuit Court of Du Page County; the Hon. John Bowman, Judge, presiding.

APPELLATE Judges:

JUSTICE UNVERZAGT delivered the opinion of the court. DUNN and INGLIS, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE UNVERZAGT

The defendant, David Friend, was charged by information in the circuit court of Du Page County with one count of unlawful possession of controlled substance (cocaine) with intent to deliver (Ill. Rev. Stat. 1985, ch. 56 1/2, par. 1401(a)(2)), one count of unlawful possession of cannabis with intent to deliver (Ill. Rev. Stat. 1985, ch. 56 1/2, par. 705(d)) and one count of unlawful use of a weapon by a felon (Ill. Rev. Stat. 1985, ch. 38, par. 24-1.1). This latter charge was nol-prossed on the State's motion and the case dismissed. Defendant's motions to quash arrest and search warrant were denied, and, after a bench trial, he was found guilty of the remaining two charges. His post-trial motion was denied, and he was sentenced to seven and three years' imprisonment, respectively, on the cocaine and cannabis offenses, sentences to be served concurrently. Street value fines in the amount of $8,300 and $1,600 were imposed pursuant to section 5-9-1.1 of the Unified Code of Corrections (Ill. Rev. Stat. 1985, ch. 38, par. 1005-9-1.1). Upon the State's amended petition to revoke probation based on the instant offenses, the court revoked the defendant's sentence of 18 months' probation which was imposed upon him in 1984 pursuant to section 410(a) of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1983, ch. 56 1/2, par. 1410(a)). No additional sentence was imposed following revocation.

Defendant appeals from both his convictions and from the revocation of his probation. The appeals were consolidated. Inasmuch as no sentence was entered by the court upon revocation of the defendant's probation, that judgment lacks finality, and the appeal cannot be entertained. (People v. Caballero (1984), 102 Ill. 2d 23.) Further, the defendant presents no argument or citation of authority whatsoever in support of his prayer for reversal of the revocation judgment. Accordingly, defendant's appeal from the court's judgment revoking his probation is dismissed.

Defendant raises these issues on appeal from his convictions: (1) whether he was deprived of a fair Franks hearing because the court denied his request for disclosure of the identity of the confidential informant; (2) whether the court erred in directing a finding for the State at the Conclusion of the Franks hearing; (3) whether there was probable cause for the search warrant and, if not, whether the evidence nonetheless was admissible; (4) whether the search warrant was overbroad and, thus, invalid; (5) whether he was deprived of due process due to the court's ex parte communications with police officers and its predetermination of his case; (6) whether he was deprived of a fair Franks hearing where a defense witness repeatedly asserted her fifth amendment rights in response to questioning by the State; and (7) whether the State's evidence proved beyond a reasonable doubt his intent to deliver.

Chicago detective Andrew Kuchoukos, accompanied by six other Chicago officers and two Hanover Park police officers, went to the premises with a search warrant which the Chicago officers obtained earlier that day. En route to execute the warrant, Kuchoukos encountered the defendant in a vehicle a block away from the premises. The defendant was driving and his girlfriend, Sharon Freeman, and two or three other people were with him. Kuchoukos informed the defendant the officers had a search warrant, and they all went to the premises.

The officers entered to conduct the search after the defendant handed Kuchoukos a key and Kuchoukos advised the defendant of his Miranda rights. The defendant agreed to waive his rights and speak to Kuchoukos. When asked about weapons and contraband, the defendant admitted to having both on the premises and directed Kuchoukos to the second floor and the basement of the premises.

The officers split up and searched different areas of the premises. Various items were recovered during the search, most from a desk or dresser in one of the two bedrooms on the second floor. These items included four bags and two folded pieces of paper, all of which contained a white powdery substance. Laura Mitacek, a forensic chemist, testified she weighed and tested the substances. Three of the bags weighed just over three grams each and contained cocaine. The fourth bag weighed 55.65 grams and also contained cocaine. The powder in the two folded papers consisted of 1.80 and 1.81 grams, respectively, of a substance containing cocaine. A bag containing 3.1 grams of green leafy plant material, determined to be cannabis, was found under the bed in that bedroom. Three other bags of green leafy plant material were found under the steps in the basement and determined to each contain approximately 100 grams of cannabis. A gram scale was found on the dresser, and $2,480 was found in a drawer of the dresser. Two guns were also found in between the mattress and springs of the bed in the bedroom. Two documents addressed to the defendant at 6255 Nugget, Hanover Park, Illinois, were found in a drawer of the dresser. A piece of paper with names and numbers was found in the bedroom either in the dresser area or under the bed. The defendant admitted to police the contraband was his.

The defendant made a pretrial motion to quash the search warrant which alleged that the allegations in the complaint for the warrant were false. Several affidavits were filed in support of the motion. Supplemental affidavits were added, and the court granted the defendant a hearing pursuant to Franks v. Delaware (1978), 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674.

The search warrant was issued at 11:35 a.m. on March 6, 1986, in Cook County, based on a complaint signed and sworn to by Kuchoukos. According to the allegations of the complaint, Kuchoukos spoke with a "cooperating individual" whom he had known for over one year and who had given him information regarding narcotics trafficking on numerous occasions. On three of those occasions that were acted upon, narcotic contraband was discovered, analyzed and found to be cocaine. Arrests were made in all those occasions and the causes were pending in the courts of Cook County. The informant told Kuchoukos he went to purchase cocaine from the defendant at a multi-family structure at 6255 Nugget "in the early morning hours" of March 6. The defendant was described as a male white subject, approximately 30 years old, 6 feet 2 inches tall, 250 pounds, with blue eyes and blonde hair. The informant told Kuchoukos he was admitted to the dwelling by the defendant, told the defendant he wanted to buy one gram of cocaine, and the defendant said it would cost $100. The informant handed that amount to the defendant. The defendant then produced a large clear plastic bag containing white powder. He weighed a small portion of this substance on a scale, placed the substance in a white paper packet and gave it to the informant. The large plastic bag was then placed in the refrigerator. The defendant told the informant the powder in the clear plastic bag was over five ounces of very good quality cocaine which was his supply for the "on-coming" week. Shortly after leaving 6255 Nugget, the informant snorted the powder purchased from the defendant and received the same effects as when he snorted cocaine during the preceding three-year period. Based on this information, which Kuchoukos alleged he believed to be true and correct, Kuchoukos asked that a search warrant be issued for the defendant and the multi-family structure at 6255 Nugget. The affidavits and supplemental affidavits submitted in support of the defendant's motion to quash the search warrant and for a Franks hearing detailed the defendant's activities from the early evening of March 5, 1986, until he retired about 5 or 5:30 a.m. and awakened about 12 or 12:30 p.m. on March 6.

The record of the Franks hearing reveals the following information. Greg Philips, who signed one of the affidavits supporting the defendant's motion to quash, testified he and his friend, Pat Oakes, were with the defendant between 7 or 7:30 p.m. on March 5 until approximately 1:30 a.m. on March 6. Oakes did not know the defendant previously. At the time of the hearing, Philips did not know Oakes' address; Oakes was in the process of a divorce and was staying with various friends. Philips and Oakes picked up the defendant at his residence and went to the Maywood Park race track in one car. They left the track about midnight and went to a bar in Hanover Park called Fizz. They left Fizz between 1 and 1:15 a.m. on March 6 and returned to the defendant's. Philips and Oakes stayed long enough to use the washroom and left. The defendant did not leave Philips' presence that evening except possibly to use the washroom. Philips' did not see anything which appeared to be cocaine in the defendant's residence. Philips testified he was not the informant, and he did not purchase controlled substances from the defendant or anyone else in the premises.

Jeanine Clauss also signed an affidavit in support of the defendant's motion to quash. She testified at the hearing she was at the defendant's residence with the defendant's girlfriend, Sharon Freeman, who also lived in the residence, from about 8 p.m. on March 5 until 4 or 4:30 a.m. on March 6. Clauss, her husband Brian, and her two-year-old son lived across the sidewalk from the defendant's residence. She had been inside defendant's residence "thousands" of times. She stated that she was not sure whether the defendant was with anyone when he returned about 12 midnight or 1 a.m. on March 6. Clauss did not leave the residence from the time the defendant returned until she left for the night. After the defendant returned, Clauss did not see anyone else come in. Clauss testified she was not the informant. She did not see anyone with anything that appeared to be cocaine and did not see such substances in the refrigerator. While at the residence, Clauss was playing cards at a table near the kitchen. Clauss did not see the defendant in the kitchen from the time he got home, when he went upstairs, until after he received a couple of phone calls and he and Freeman left with the dog at approximately 4 a.m.

Debra Kurtz also signed an affidavit in support of defendant's motion to quash. She testified at the hearing she was receiving obscene telephone calls and was scared. She called the defendant several times the evening of March 5 and the early morning of March 6. Ultimately he came to her house between 4 and 4:30 a.m. on March 6. Kurtz testified she phoned the defendant three or four times after he left her apartment, but she did not reach him until about 2 p.m. on March 6. Terri Dolan, who was staying overnight with Kurtz that night, corroborated Kurtz' testimony that the defendant came to Kurtz' residence that night.

Sharon Freeman also signed an affidavit in support of defendant's motion to quash. She testified at the hearing she lived with the defendant for about three years at 6255 Nugget Circle. There was only one kitchen in the premises and there was no refrigerator in the basement. The premises had a first floor, second floor, and a basement. From where she and Clauss were sitting playing cards, they could not see the refrigerator in the kitchen. Freeman testified that in addition to Clauss, Philips and Oakes came to the residence. Freeman did not see the defendant, Philips or Oakes with cocaine. When Philips and Oakes came in with the defendant after returning from the track, Philips and Oakes went to the bathroom in the back of the kitchen and left. Freeman testified she was familiar with what cocaine looked like. Freeman and Clauss continued playing cards and doing laundry after the defendant came home. Freeman testified the defendant went to bed about 2 a.m., and no one else came to the house thereafter. Debra Kurtz called once while the defendant was at the track and called again about 2 a.m. after he was asleep. Freeman testified Kurtz called again about 3 a.m. and asked Freeman to wake up the defendant because she was scared about some phone calls she was getting and she was home alone with the kids. Freeman refused to wake the defendant at that time, but did wake him when Kurtz called again about 3:30 or 3:45.

Freeman testified she and the defendant went to the home of Debra Kurtz at approximately 4 a.m. and Jeanine Clauss went home at that time. Freeman testified she and the defendant stayed about one-half hour at the Kurtz residence and then returned home and went to bed about 5 a.m. No one else came to the house that morning. Freeman testified there is a portable phone in the bedroom and she woke about noon, when the phone rang and it was Jeanine Clauss. To her knowledge, the defendant did not leave the bedroom prior to the time she awoke. She testified the defendant was in bed with her when she awoke.

Kuchoukos and his supervisor, Michael Maher, also testified. Maher knew of an informant who gave information to the Chicago police which led to the issuance of this warrant. Maher was not involved in the matter prior to the time Kuchoukos submitted the complaint for the warrant to him for his approval. Maher could not recall asking Kuchoukos anything about the informant. Although Maher claimed that he might have, he could not recall if he asked Kuchoukos any questions concerning the allegations of the complaint for the warrant. The Cook County State's Attorney's office and the Du Page County State's Attorney's office were consulted about securing the warrant.

Kuchoukos stated that he signed the complaint for search warrant on March 6 at 11:30 a.m. Kuchoukos testified he had a telephone conversation with the informant at 9 o'clock that morning. Kuchoukos stated the informant told him that he obtained drugs from the defendant, and the informant gave Kuchoukos an address and a physical description of the defendant. The defendant actually was one inch shorter than the description given, but the description of his weight at 250 pounds was considerably more accurate than the most recent LEEDS description on file of the defendant which listed his weight as 60 to 70 pounds lighter than he actually was. The informant indicated the purchase from the defendant occurred "some hours earlier in the morning, the early morning hours of March 6." Kuchoukos could not recall the exact time the informant indicated, if he did indicate a time, and Kuchoukos stated he made no written report concerning the informant's call. Kuchoukos did not meet with the informant prior to securing the warrant, nor did he go to Hanover Park prior to typing up and obtaining the warrant. He had no independent knowledge to corroborate the telephone conversation in any way, although he contacted the Hanover Park police department to verify occupancy. Sharon Freeman testified later that she had a lease for the first year she lived at 6255 Nugget, but she did not have one for the past three years. The phone number was unpublished and was listed either in her name alone or her name and her brother's, who lived with her for the first year in that residence. Kuchoukos testified no surveillance was done of the defendant's premises prior to securing the warrant. Kuchoukos also testified the informant did not state whether anyone else was present or where in the residence the alleged transaction occurred. The informant described the residence as a four- or ...


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