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09/28/89 the People of the State of v. Larry Dean Mays

September 28, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

LARRY DEAN MAYS, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

544 N.E.2d 1264, 188 Ill. App. 3d 974, 136 Ill. Dec. 489 1989.IL.1537

Appeal from the Circuit Court of Jefferson County; the Hon. Lehman Krause, Judge, presiding.

APPELLATE Judges:

JUSTICE GOLDENHERSH delivered the opinion of the court. LEWIS, J., concurs. JUSTICE HOWERTON, specially Concurring.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE GOLDENHERSH

After a jury trial, defendant, Larry Dean Mays, was found guilty of unlawful delivery of a controlled substance (Ill. Rev. Stat. 1987, ch. 56 1/2, par. 1401(c)) in Jefferson County and was sentenced to 12 years' imprisonment. Defendant appeals his conviction. In this cause, defendant raises the following issues: (1) whether the trial court erred in allowing into evidence the tapes of the alleged drug transaction between defendant and Larry Wade, (2) whether the trial court erred by refusing to allow defendant to present witnesses who would testify to Wade's mental health and by not requiring witness Wade to reveal his street address, (3) whether the trial Judge's conduct during the trial indicated hostility toward defendant's case to so prejudice defendant as to require defendant's conviction be reversed and remanded for a new trial, and (4) whether the trial court abused its discretion in sentencing defendant to an extended-term sentence of 12 years. We affirm in part, reverse in part, and remand for a new trial.

During the late afternoon of October 21, 1986, an eavesdrop was conducted of an alleged drug transaction in Mt. Vernon. Agents with the Illinois Department of Criminal Investigation and an agent from the Federal Drug Enforcement Administration met with Larry Wade, an informant for both agencies, to prepare Wade for a prearranged purchase of cocaine from defendant. Prior to the drug purchase, Wade was strip-searched by agents who recovered a $50 bill and 13 cents in change. Wade was then fitted with a recording device and given $350 to make the purchase. Wade and four agents went in a van to an area near defendant's mother's house where the transaction was to take place. Wade was dropped off a few blocks from the residence and walked the rest of the way to the house. He proceeded to the residence and returned to the agents with a clear plastic bag containing 3.58 grams of a white powdery substance later determined to be cocaine. The transaction was recorded on audio tape.

Grand jury proceedings concerning this drug transaction were conducted on May 20, 1987. DCI Agent Bill Stanhouse testified before the grand jury that Wade had informed him he had arranged for the purchase of cocaine from defendant. Agent Stanhouse testified that he then informed DEA about the purchase, as DEA was simultaneously conducting an investigation of the sale of "black tar" heroin in the Mt. Vernon area. Defendant was indicted by the grand jury on June 11, 1987, for unlawful delivery of a controlled substance. He filed a motion to suppress the recording of the drug transaction.

At the hearing on this motion, DEA Agent Herman Hogue testified that there had been an ongoing Federal investigation into the sale of "black tar" heroin in Mt. Vernon. Larry Wade had mentioned to Agent Hogue that defendant was an associate of John "Corky" Moore, who was the target of a Federal investigation. Based on this information and verbal consent by Wade, Agent Hogue obtained Federal authorization to eavesdrop on defendant during the cocaine transaction. The motion to suppress was denied.

At trial, Special Agent Stanhouse testified that he had used Larry Wade as a confidential informant from September 2, 1986, through March 1987. DCI had paid Wade $1,075 for the information Wade supplied to the Department. Wade was paid $60 for the information obtained on defendant. Wade had called Stanhouse and told him that he had set up a one-eighth ounce of cocaine buy in the Mt. Vernon area. At 3:15 p.m. on October 21, 1986, defendant met with Agents Stanhouse, Spain, Parker, and Sergeant Townsend of DCI, along with Agent Hogue, in an area outside Mt. Vernon. Sergeant Townsend did the actual hookup of Wade to the recording device. Agent Stanhouse drove the van. Special Agent Spain rode in back with Larry Wade, and Sergeant Townsend rode in front. Hogue and Parker traveled singularly in their respective vehicles. The van stopped at 17th and Perkins at approximately 3:45 p.m., and Wade then started walking toward defendant's residence. Wade arrived at defendant's home at 3:53 p.m. Agents were monitoring Wade on the equipment in the van. Wade left defendant's home at approximately 3:57 p.m. Stanhouse observed him walking at 3:58 p.m. At approximately 4 p.m., the agents met with defendant back at 17th Street and Perkins. Wade entered the back of the van and gave Agent Spain a clear plastic bag with a white powdery substance inside. Spain then gave the plastic bag to Stanhouse. Other agents related basically the same facts.

Larry Wade testified about the alleged drug buy. He also stated that he had been convicted of shoplifting, a Federal weapons offense that had resulted in an 18-month penitentiary sentence, and theft. Wade admitted that he had used drugs, but denied that he was an addict. He further testified that on April 18, 1986, he had checked himself into a detoxification center. On cross-examination, defendant asked, "Where are you living now, Mr. Wade?" The prosecution's objection was sustained on grounds of relevancy. Wade was also asked by defense attorney if he had attempted suicide while in the Jefferson County jail in May 1986. Wade explained that he did hang himself by the neck with a towel tied around the bars, but that his cellmate, Leroy Hooker, had been standing there holding his feet. Wade explained that he had "faked" this suicide attempt in order to get to see a Judge. He also explained that Leroy Hooker had been enlisted by Wade to help him stage this attempt.

Defendant called as his first witness Leroy Hooker, Jr. Before Hooker began his testimony, and before any objection by the State, the trial Judge stopped the trial, summoned counsel into chambers and asked defense attorney why Hooker had been called to testify. Defense counsel explained that Hooker would testify that Wade's suicide attempt was in fact real, which would be used to impeach Larry Wade on the issue of credibility and which would go to Wade's mental capacity. Defense counsel was allowed to begin questioning Hooker. The prosecution objected and the jury was then recessed.

The State argued that questioning Hooker about the suicide attempt was impermissible impeachment on a collateral issue. The State further argued that no single act was admissible to prove Wade was incompetent because of a mental defect. The trial Judge agreed that the suicide attempt was a collateral issue. While Hooker could testify as to Wade's mental condition, Hooker's opinion could not be based on one act.

Defense counsel was allowed to make an offer of proof on the suicide attempt. Hooker testified that on May 9, 1986, he found Larry Wade hanging from the cell bars with his neck tied in a towel or sheet. Wade's feet were not touching the ground. Hooker then lifted Wade to take the weight off Wade's neck, lowered Wade to the ground, and performed mouth-to-mouth resuscitation. He also noted that Wade was "foaming at the mouth" when he found him. Hooker denied helping Wade "stage" the suicide attempt. On cross-examination, Hooker noted that he had known Wade since 1984 and he had always known Wade "wasn't wrapped tight, that he had some problems." During the five days he spent with Wade in jail in May 1986, he found Wade to be "in a state of depression, paranoia, fearful."

The stipulated testimony of the jailer, George Buretz, was short and to the effect that Wade's suicide attempt was genuine. This testimony was also excluded on the basis that the suicide attempt was a collateral issue, and while it could be used to prove mental defect, the suicide attempt alone was not enough to do so.

During closing arguments, defense counsel was explaining why he was angry during cross-examination of Larry Wade. In so explaining, he stated, "I believe that --." The prosecution objected as to what counsel believed, and the objection was sustained.

The jury found defendant guilty of unlawful delivery of a controlled substance. Defendant filed a post-trial motion on October 1, 1987. On November 6, 1987, a hearing was held on defendant's post-trial motion. At the hearing, defense counsel testified that the trial Judge threw down his pencil, made facial gestures, and heaved a sigh in response to a question posed by defense counsel to Larry Wade during cross-examination. Defense counsel stated that he observed at least six jurors make an obvious response to what the Judge did. He stated that he did not object at the time for fear of aggravating the situation. He could not remember the specific question which elicited such a response by the trial Judge. The prosecutor testified that during cross-examination of Larry Wade, his attention was focused on Mr. Wade. He testified that he could not say for sure that the court did or did not do the things that the ...


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