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09/28/89 the People of the State of v. Melvin Burns

September 28, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

MELVIN BURNS, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

544 N.E.2d 466, 188 Ill. App. 3d 716, 136 Ill. Dec. 13 1989.IL.1560

Appeal from the Circuit Court of McLean County; the Hon. Luther H. Dearborn, Judge, presiding.

APPELLATE Judges:

JUSTICE KNECHT delivered the opinion of the court. SPITZ and GREEN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE KNECHT

Following a jury trial in McLean County, the defendant, Melvin Burns, was convicted of unlawful delivery of 15 grams or more of a substance containing cocaine, a Class X felony (Ill. Rev. Stat. 1987, ch. 56 1/2, par. 1401(a)(2)), and sentenced to 17 years' imprisonment. On appeal, the defendant contends the trial court erred in denying his motion for substitution of Judge. The defendant further contends evidence of his statement to the police was improperly admitted as it was made in the process of an unsuccessful plea negotiation.

At trial, David Lampert testified as a confidential source for the police. Lampert had agreed to make a drug purchase from defendant in exchange for the police dropping an investigation against Lampert concerning theft of a motorcycle. Lampert's testimony was that he knew defendant from a local health club and made a previous drug purchase from him. Lampert had been "shorted" one-half gram of cocaine in the previous purchase which defendant had promised to make up for in his next delivery. Lampert testified defendant phoned him on May 23, 1988, stating he had the cocaine and "Kim" from the health club would meet Lampert at the Kroger grocery store in Bloomington at 4:30 p.m. She would have 1 1/2 ounces of cocaine plus the "shortage." Lampert was to pay Kim $1,000 at the time of the delivery. A little later, Kim Kloster called Lampert stating where she would be and what she would be wearing. Lampert previously knew Kim Kloster from the same health club. That afternoon Lampert and undercover officer Mike Bernardini drove to the Kroger store and picked up Kim Kloster. Lampert introduced Officer Bernardini as a friend and money source. Kloster handed the package of cocaine to Officer Bernardini, who gave it to Lampert to weigh. At this time, Officer Bernardini arrested both Kloster and Lampert.

Department of Criminal Investigation special agent Michael Bernardini corroborated Lampert's testimony. He added that Lampert had asked Kloster if she had seen defendant that day to which Kloster replied affirmatively. Officer Bernardini also testified Kloster told Lampert all of the drugs were there, what had been requested and "a little more." Officer Bernardini testified that he performed a field test which showed the presence of cocaine, and then testified as to the chain of custody.

Kim Kloster testified for the State. She was charged with the same Class X felony as defendant, but agreed to testify truthfully in exchange for a reduction to a Class 1 felony, six months' jail time and 48 months' probation. She testified she knew defendant from work and from living in the upstairs apartment of his home. Defendant asked her to deliver the cocaine to Lampert because if defendant got caught he would do a lot of time, but if she got caught she would get probation. Kloster further testified that on May 19, 1988, defendant had given her the package of cocaine. She kept the cocaine with her at all times until delivery to Lampert. Other than denying she knew anything about a prior shortage, Kloster's testimony corroborated that of Lampert and of Officer Bernardini.

DCI agent Gary King also testified for the State. He was one of the officers performing surveillance at the time of the drug transaction and assisted in the arrest of defendant. En route to jail, defendant told Officer King "he could help out," that he could "do in someone in Wisconsin" as long as he were not "thrown in jail."

The defense presented no evidence. The jury deliberated and quickly returned a verdict of guilty. The court entered judgment on the verdict. Defendant was later sentenced to 17 years' imprisonment.

This case was placed on the trial call of Judge Dearborn on July 11, 1988. On July 19, 1988, defendant filed a motion for substitution of Judge which in its entirety stated:

"Your petitioner, MELVIN BURNS, by his attorney Paul G. Lawrence, respectfully represents to this Honorable Court that he is the defendant in this case, now pending before The Honorable Luther Dearborn.

Your petitioner further represents that he is charged with the offense of Unlawful Delivery of a Controlled Substance, and that if convicted, he ...


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