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08/01/89 the People of the State of v. Basilio Gaytan

August 1, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

BASILIO GAYTAN, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

542 N.E.2d 1163, 186 Ill. App. 3d 919, 134 Ill. Dec. 656 1989.IL.1186

Appeal from the Circuit Court of Du Page County; the Hon. Edward W. Kowal, Judge, presiding.

APPELLATE Judges:

JUSTICE REINHARD delivered the opinion of the court. LINDBERG and WOODWARD, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE REINHARD

Defendant, Basilio Gaytan, was found guilty following a bench trial of one count of unlawful delivery of 15 grams or more of a substance containing cocaine (Ill. Rev. Stat. 1985, ch. 56 1/2, par. 1401(a)(2)) and one count of unlawful possession of a controlled substance with intent to deliver a controlled substance containing 15 grams or more of cocaine (Ill. Rev. Stat. 1985, ch. 56 1/2, par. 1401(a)(2)) and was sentenced, on the unlawful delivery conviction, to nine years' imprisonment, fined $21,600, and ordered to pay $3,200 restitution to the Du Page County Metropolitan Enforcement Group (Du Meg). The trial court vacated the conviction on the possession with intent to deliver count, and the State nol-prossed the five remaining counts which were for offenses on earlier dates for which the State had elected not to proceed.

On appeal, defendant raises three issues: (1) whether the trial court erred in denying his pretrial motion to require the State to disclose the address of its informant; (2) whether the trial court erred in denying defendant's motion to suppress his post-arrest statements; and (3) whether the trial court erred in ordering defendant to pay $3,200 restitution to Du Meg.

Prior to trial, defendant filed a motion to suppress his confession, alleging that he was not advised of or did not waive the Miranda warnings and that he did not understand English sufficiently to comprehend or waive the Miranda warnings. Defendant also filed an amended motion to suppress statements alleging that his statements were involuntary due to physical force used against him at the time of his arrest, namely, that on at least two occasions he was struck in the back of the head and punched in the testicles by one of the arresting officers. The amended motion also realleged that defendant was not advised of or did not waive his Miranda rights prior to being questioned.

At the suppression hearing, the State presented testimony of Officer Michael Sullivan, who participated in removing defendant from his vehicle and placing him under arrest, Officers Joe De Anda and Elizabeth Brantner, who transported defendant to the police station and interrogated him, and two county deputies who processed defendant at the Du Page County jail. According to Sullivan, he was present during the entire time defendant was arrested, and he observed no one punch, kick or strike defendant, nor did he do so himself. Neither De Anda nor Brantner observed any officer strike defendant, and defendant indicated, in response to Brantner's inquiry if he was okay, that he was "[f]ine." Both sheriff's deputies indicated that they observed no bruises, abrasions or cuts on defendant and that defendant made no complaints regarding pain or physical injury.

Defendant testified, inter alia, that one of the officers attempted to hit him with a gun at the time of his arrest. According to defendant, at the time of his arrest someone hit him in the back of the head, "not really hard," and another officer hit him in the testicles and asked him, "Where are your weapons?" Defendant stated on cross-examination that no one hit him hard, but that his head was swollen for three weeks, and that he was not struck very hard in the testicles. Defendant also admitted that the officers placed him in the squad car carefully. Defendant did not offer any testimony that he was struck or threatened during his interrogation at the police station when he gave a statement, nor did he testify that the physical incidents at his arrest caused him to give the statement. The trial court denied defendant's motion to suppress.

Prior to trial, defendant filed a motion to disclose the identity of a State informant and "all pertinent information pertaining to the informant," including his proper name and address. The State orally objected to defendant's motion on July 24, 1987, and again on November 10, 1987. The trial court stated that it would treat defendant's motion as a continuing motion to produce and would make a ruling later if the evidence at trial showed the informant to be a material witness. Defendant renewed his motion to disclose the location of the informant at the close of the State's case, and the trial court denied the motion.

The following facts were adduced at trial. Defendant owned and operated a grocery store called La Victoria II located in West Chicago. Defendant admitted using cocaine and had on occasion purchased cocaine for himself and an acquaintance, Audi Higgins. Sometime in late October or early November 1986, Higgins brought a scale to defendant's store and gave it to defendant. Defendant stated that Officer Charles Dvorak, the undercover officer in this case, had sold the scale to Higgins to obtain money to purchase drugs.

Officer Dvorak, an undercover officer for Du Meg, was first introduced to defendant in late October or early November 1986 by Audi Higgins, who was an informant for Du Meg. According to Dvorak, he made six purchases of cocaine in varying quantities from defendant between early November 1986 and February 25, 1987. The informant, Higgins, was not present at any of the transactions except the first, and Dvorak had no contact with Higgins after January 20, 1987.

Finally, Dvorak met with defendant in a business parking lot on February 25, 1987, and defendant delivered two clear plastic bags of a substance purported to be cocaine to Dvorak while they were seated in defendant's car. Dvorak gave defendant $3,600, exited the vehicle ...


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