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07/21/89 the People of the State of v. Edwin D. Phillips

July 21, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

EDWIN D. PHILLIPS, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SIXTH DIVISION

542 N.E.2d 814, 186 Ill. App. 3d 668, 134 Ill. Dec. 468 1989.IL.1138

Appeal from the Circuit Court of Cook County; the Hon. Thomas P. Durkin, Judge, presiding.

APPELLATE Judges:

JUSTICE QUINLAN delivered the opinion of the court. EGAN, P.J., and McNAMARA, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE QUINLAN

The defendant, Edwin Phillips, was tried by a jury in the circuit court of Cook County on charges of possession and delivery of less than 30 grams of a controlled substance. He was found guilty on both counts, but judgment was entered on the delivery of a controlled substance count only. Defendant was sentenced to seven years' imprisonment and two years' mandatory supervised release. Defendant now appeals his conviction. We affirm.

Defendant's trial began with the voir dire examination of prospective jurors. During that proceeding, the State peremptorily excused three prospective jurors. Of the three prospective jurors excused by the State, one was a white man, one was a white woman, and the third was a black woman, Gladys Hayes. The defense objected to the State's challenge of Ms. Hayes and moved for a mistrial alleging that this challenge evidenced the State's systematic exclusion of blacks during the jury selection process. The trial court gave the State the opportunity to explain why it had excused Ms. Hayes, but the State refused to explain its challenge because, the State argued, it was unnecessary, inasmuch as the defendant had not and could not show that the State had systematically excluded blacks from the panel. The court thereafter denied defendant's motion. The final panel of selected jurors was composed of 14 individuals, and two or three of the 14 were black persons. *fn1

At the beginning of the trial, the Judge informed everyone, including the jurors and counsel, that the trial would begin each day promptly at 10:30 a.m. and would continue until 5 p.m. The State then began its case and presented the testimony of Chicago police officer McLaughlin. *fn2 He testified that he had been close friends with the defendant, a former Chicago police officer, since 1979 when they served together as partners. They remained close friends until sometime in 1980, when they had a disagreement after McLaughlin criticized the defendant for selling drugs. McLaughlin testified that, during this conversation, he had told defendant that selling drugs was wrong, and that defendant responded that if he got caught, he would then merely spend 10 years in jail, lift weights, come out and sell more drugs. McLaughlin said that the defendant also told him that he (defendant) believed he was providing a service to people by selling drugs. Later, in September 1981, McLaughlin testified that he told Sergeant Thomas Chandler of the Internal Affairs Division of the Chicago police department, a close friend of his for many years, of an incident where a policeman had sold drugs. McLaughlin said that as a result of this conversation, he began to take part in IAD investigations as a special undercover agent.

On the morning of March 23, 1982, McLaughlin received a telephone call from the defendant, who told McLaughlin that if he wanted to buy some cocaine, he should come to defendant's home later that morning. McLaughlin called Chandler and told him of the defendant's call, and McLaughlin and Chandler agreed to meet. Thereafter, McLaughlin met with Chandler and Investigator Howard, and all three men went to the criminal courts building at 26th and California in Chicago, where McLaughlin was fitted with electronic surveillance and transmitting equipment. McLaughlin was also given $100 in premarked money.

McLaughlin said that he then drove to defendant's home at 6815 South Crandon *fn3 in Chicago, while Chandler, Howard, and other officers followed him in a van full of electronic equipment designed to record any conversations transmitted from the device McLaughlin was wearing. When McLaughlin arrived at defendant's home, McLaughlin testified that defendant, in exchange for $100, gave him two paper envelopes in a plastic bag. The substance in the envelopes was later analyzed and found to be .87 of a gram of cocaine. McLaughlin denied that he had used drugs and stated that he had only purchased the drugs as part of the prearranged plan. In addition, during the course of McLaughlin's testimony, the State submitted the tape recording of the conversation concerning the transaction between the defendant and McLaughlin on March 23, 1982, which was admitted by the court, and which, essentially, substantiated McLaughlin's testimony.

The State then called Sergeant Chandler, who testified that he and McLaughlin had been close friends for years and related primarily the same chain of events leading to the sale of the cocaine by the defendant. Later, during cross-examination, defense counsel asked Chandler whether another officer, Pamela Grant, had made allegations or filed a report to the effect that he, Chandler, had previously sold drugs himself. Chandler responded by denying that any allegations or any such report had been made. The State objected, and the trial court sustained the objection, ruling that the alleged report which defense counsel claimed was the reason for this inquiry did not establish a legitimate basis for cross-examination of Chandler, because it relied solely upon rumor and speculation. Defense counsel then, in a sidebar conference, produced the report and stated to the court that this report, which he said was signed by someone named "Arthur," stated that a Sergeant Nathan Gibson of the IAD had told this "Arthur" of rumors that Chandler had been arrested by Federal authorities for dealing in cocaine. Defense counsel also stated that the report demonstrated that "Arthur" had talked to another officer, Officer Kirkling, who had told "Arthur" that Pamela Grant told him (Kirkling) that she was working on a narcotics investigation involving Chandler and the sale of cocaine. Defense counsel concluded his remarks by noting that the report was also signed by Chandler. The court then reiterated that the State's objection was sustained, and the report was not included as part of the trial record.

The State did not present any additional evidence, and, at this point, the State rested its case. Since the time of the day was only approximately 3 p.m., the trial Judge then told defense counsel he should begin to present his witnesses because, the Judge said, he had previously advised everyone that the proceedings would continue each day until 5 p.m. However, defense counsel informed the court that his witnesses were not ready at that time, and that he was not, therefore, prepared to go forward with his witnesses. The trial Judge then asked defense counsel if the defendant was going to testify. Defense counsel answered that defendant was not going to testify. The court called the defendant to the bench and the following exchange took place:

"THE COURT: Ordinarily, Mr. Phillips, I would not, in any way, interfere with the order of witnesses called, because you are represented by a fine attorney. Sometimes the order of witnesses can be a matter of strategy. However, I [have] advised the parties I would go to five [o'clock]. In [this] case, some two hours will be lost. The one way in which they can be saved, you understand, [is] if you choose to testify today. You are not going to be allowed to change your mind tomorrow.

THE DEFENDANT: Yes, your honor, I am aware of that.

THE COURT: If you decide not to testify, that is the decision ...


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