APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SIXTH DIVISION
543 N.E.2d 918, 187 Ill. App. 3d 903, 135 Ill. Dec. 350 1989.IL.1313
Appeal from the Circuit Court of Cook County; the Hon. Michael P. Toomin, Judge, presiding.
JUSTICE LaPORTA delivered the opinion of the court. EGAN, P.J., and QUINLAN, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LAPORTA
Defendants, Donald Bradford, Green Smith, Luther Woods and Michael Smith were charged by indictment with possession of a controlled substance with intent to deliver. (Ill. Rev. Stat. 1985, ch. 56 1/2, par. 1401.) Prior to trial, Bradford brought a motion to suppress physical evidence against him. The motion was heard concurrently with the trial and was ultimately denied. Following a joint bench trial, Bradford was convicted of possession with intent to deliver 9.98 grams of heroin and was sentenced to a term of 14 years. Green Smith was convicted of possession with intent to deliver 126.19 grams of heroin and was sentenced to a term of 40 years. Woods was convicted of possession with intent to deliver 16.54 grams of heroin and was sentenced to a term of 40 years. Michael Smith was convicted of possession with intent to deliver 17.27 grams of heroin and was sentenced to a term of 20 years. The sentences of Green Smith, Luther Woods and Donald Bradford were enhanced based upon previous offenses by these defendants. Ill. Rev. Stat. 1985, ch. 56 1/2, par. 1408.
The issues raised on appeal are whether (1) the State presented sufficient evidence to prove the defendants guilty beyond a reasonable doubt; (2) the trial court erred in denying Bradford's motion to suppress physical evidence; (3) the trial court erred in sentencing Green Smith, Luther Woods and Donald Bradford to enhanced prison terms; (4) the defendants' sentences were excessive; and (5) the trial court erred in considering information that was not presented as evidence at trial.
The evidence adduced at trial established that on April 14, 1986, Chicago police officers Michael Daukus, James Keating and Arthur Jackson were assigned along with Sergeant Thomas Eichler to provide security at two summer job program sites located at 26th Street and Kolin Avenue and at Cermak Road and Marshall Avenue. The officers were in an unmarked police car driven by Officer Daukus. Officer Jackson was in the front passenger seat, Eichler sat behind Daukus, and Keating was in the rear passenger seat. About 9:30 a.m., while en route to the job program at Cermak Road and Marshall Avenue, Daukus drove east on Cermak beyond Avers Street. There the officers observed a group of people standing on both sides of Avers Street. Some of these people were known by the officers on patrol. All of these individuals ran in different directions when they saw the police car.
The officers also saw another group of people standing on the east side of Avers Street near the middle of the block. This group, consisting of the four defendants, was standing in front of a three-story building which was directly south of a vacant lot with a seven-foot cyclone fence in the front. There were no numbers on the building indicating its address, but it was at or near 2241 South Avers Street. Green Smith was standing in front of the doorway of the building. Woods, Bradford and Michael Smith were about 10 feet away and near the gate into the vacant lot. A fifth individual, later identified as Calvin Wilder, was standing about 40 or 50 feet away from the defendants at the north end of the vacant lot. Eichler directed Daukus to drive down Avers Street in order to "check [this group] out." At Eichler's suggestion, Daukus backed the car up and drove south on Avers. As the police car approached the group, Calvin Wilder ran through an opening in the fence and northeast through the vacant lot. The defendants ran through a gate in the fence and into the vacant lot as Eichler and Keating jumped out of the car while it was still moving. At Eichler's direction, Daukus sped around the block to cut off the defendants' flight.
Bradford, Woods and Michael Smith were about 20 feet in front of Green Smith and were running on a northeast diagonal through the lot. Green Smith was running down the concrete gangway situated along the side of the building. While running down this concrete walk, Green Smith threw a large brown bag to the ground. He then ran into the vacant lot, following the other three defendants. Eichler, who was in front of Keating, started to pick up the brown bag, but Keating called out that he would retrieve it. In the middle of the lot, Michael Smith broke away from the group and ran south toward the rear of the building. Eichler pursued Bradford, Woods and Green Smith, and Keating chased Michael Smith. As Bradford, Woods and Green Smith reached the back of the vacant lot near the alley behind Avers Street, the police car driven by Daukus came racing toward them. The three defendants stopped, and Woods dropped a paper bag to the ground. As Officers Daukus and Jackson were getting out of the car, Keating called out that he had "the dope." Eichler retrieved the bag dropped by Woods, looked inside and saw that it contained several foil packets. He then told Daukus and Jackson to hold the defendants because "[they had] the dope" and indicated that he was going to assist Officer Keating.
Officer Daukus searched Bradford and recovered a plastic bag containing 50 foil packets from his jacket pocket. During this search, Calvin Wilder appeared on the scene and severely berated the officers for troubling his friends. Wilder was thereafter arrested for disorderly conduct. As Eichler was walking back toward the building, Keating came out of the door to the enclosed back porch with Michael Smith in handcuffs. All of the defendants were subsequently taken to the police station.
On direct examination, Sergeant Eichler testified that Green Smith was holding the large brown bag when Eichler first saw him standing in the doorway of the building. Eichler stated further that the gangway was about 125 feet long and ran the length of the building. Eichler estimated that it took about 30 or 40 seconds to run from the front of the gangway to the back, and it took the police officers in the car about one minute to get around to the alley at the back of the vacant lot. Eichler indicated, however, that he did not time these events with a stopwatch at the time of the incident.
Eichler also testified that he was familiar with the general area where this incident occurred, had observed illegal activities in the area and had made hundreds of arrests there in the past. He indicated that he had previously arrested Gabriel Smith, Michael Smith's brother and Green Smith's son, in the building outside which the defendants had been standing. Eichler obtained the address of the building from the earlier arrest report and listed it as 2245 South Avers. When Eichler saw Keating come out of the building with Michael Smith in custody, Keating was holding the bag that had been dropped on the gangway by Green Smith as well as a bag dropped by Michael Smith. Eichler and Keating returned to the alley with Michael Smith, and all of the defendants were taken to the police station.
On cross-examination, Eichler acknowledged that he had engaged in several conversations with Officers Keating and Daukus about the case. He also stated that when he spoke with the prosecutor about the case prior to trial, the other officers were present. Eichler did not have a private interview with the prosecutor prior to testifying. He indicated further that he had twice returned to the scene with Officer Keating and with two prosecuting attorneys.
Eichler had reviewed the arrest and case reports of this incident and made no changes or amendments. He confirmed that these reports did not include many of the specific details of the incident which he provided in his testimony. Specifically, the reports did not reflect that the officers had seen a group of people standing on both sides of Avers as they drove down Cermak. There was no indication that Eichler saw Green Smith holding the large brown bag while Smith was standing in the doorway. There was no list of the order in which the defendants ran into and through the vacant lot. The reports did not reflect that Green Smith dropped a bag in the gangway or that Keating stated that he would retrieve it. The reports did not indicate whether any of the officers saw the defendants with narcotics or which officer recovered narcotics from which defendant. There was no indication that a fifth individual, Calvin Wilder, ran through a hole in the cyclone fence. The reports did not reflect that the police car approached the defendants or cut them off in the alley. There was no indication that the address of the building had been obtained from an earlier arrest report.
Although Eichler testified that Green Smith dropped the bag near the alley, the arrest report reflected that the bag was dropped about eight feet into the gangway. The arrest report for Calvin Wilder reflected that Wilder was stopped at the same time as the other defendants and did not indicate that he approached the group later and was subsequently arrested. Eichler explained that these reports were merely summaries of the facts of the incident and arrests.
Officer Keating's testimony substantially corroborated Sergeant Eichler's account of the incident. He further indicated that he chased Michael Smith as he ran from the vacant lot back toward the building. As Smith approached the building, he dropped a brown paper bag to the ground. Keating retrieved the bag and followed Smith into the enclosed rear porch of the building. The officer stopped Smith as he was running up the porch stairs. Keating then opened the large brown bag that had been dropped on the gangway by Green Smith and saw that it contained hundreds of foil packets and a large amount of money (over $4,000). After he called to the other officers that he had "the dope," Keating looked into the bag dropped by Michael Smith and saw that it contained two clear plastic bags, each holding several foil packets. Keating placed Smith under arrest, handcuffed him and conducted a pat-down search. As Keating and Smith were walking back down the stairs, Eichler approached them. Keating then gave Eichler the large bag that had been dropped by Green Smith, and they proceeded to the alley where the other defendants were being held by Officers Daukus and Jackson.
On cross-examination, Keating admitted that he had previously read the arrest and case reports pertaining to this incident and did not make any changes or amendments. He acknowledged that these reports did not reflect that the officers were assigned to provide security for job program sites or that they had observed a group of people standing on the corners of Avers and Cermak before they saw the defendants standing further down the block. The reports also did not indicate that the address of the building had been obtained from an earlier arrest report. The reports did not state that Green Smith was holding a bag as he stood in the doorway, that Keating later retrieved it or that he turned this bag over to Eichler after Michael Smith was arrested. The reports did not indicate that Keating called out that he had "the dope" or that Michael Smith was arrested in the building's enclosed back porch. Rather, the arrest report indicated that Smith was arrested in the yard behind the building. Although the report reflected that Green Smith dropped the large bag near the alley, Keating testified that Smith dropped the bag about 10 feet into the gangway. Keating acknowledged that he had discussed his testimony with Sergeant Eichler and with the prosecutors prior to trial, but he said he had not returned to the scene after the arrests.
Officer Daukus testified to substantially the same facts as did Sergeant Eichler and Officer Keating. He stated further that after Eichler and Keating jumped out of the car, he sped down Avers, across a vacant lot and back north in the alley to cut off the flight of the defendants. When he reached the back of the vacant lot through which the defendants had run, he saw Bradford, Woods and Green Smith. Daukus and Jackson got out of the car and heard Keating call out that he had "the dope." Eichler told Daukus and Jackson to hold the three defendants. Believing that the defendants had been placed under arrest, Daukus searched them. He recovered a plastic bag containing 50 foil packets from a pocket in Bradford's jacket. After these defendants had been searched, Daukus saw Keating and Michael Smith come from the area behind the building. He also saw Eichler carrying the large brown bag that Green Smith had been holding as he stood in the doorway. Calvin Wilder appeared on the scene and was subsequently arrested.
On cross-examination, Daukus admitted that he had read and signed the arrest and case reports pertaining to this incident but did not make any changes or amendments. He acknowledged that the police reports did not reflect that Green Smith had a bag in his hand as he stood in the doorway or that Daukus had recovered narcotics from any of the defendants. Daukus ...