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10/05/89 the People of the State of v. Benjamin F. Cameron

October 5, 1989





546 N.E.2d 259, 189 Ill. App. 3d 998, 137 Ill. Dec. 505 1989.IL.1601

Appeal from the Circuit Court of Brown County; the Hon. David K. Slocum, Judge, presiding.


JUSTICE GREEN delivered the opinion of the court. McCULLOUGH, P.J., and STEIGMANN, J., concur.


On September 14, 1988, following a jury trial in the circuit court of Brown County, defendant Benjamin F. Cameron was convicted of (1) unlawful possession with the intent to deliver more than 15 grams of cocaine; (2) unlawful delivery of one gram of cocaine; (3) unlawful possession of one gram of cocaine; (4) aggravated battery of a peace officer; (5) unlawful possession of 10 to 30 grams of cannabis; and (6) fleeing or attempting to elude a police officer. He was subsequently sentenced to various concurrent terms of imprisonment with a maximum of eight years for unlawful possession with intent to deliver and was fined a total of $3,168.35.

On appeal, defendant maintains (1) the circuit court denied him his right to confront witnesses against him by limiting cross-examination; (2) prejudicial hearsay was improperly admitted; (3) the jury was improperly instructed regarding the inference of intent to deliver from the possession of contraband in amounts in excess of that for personal use; (4) the sentence for unlawful possession of cocaine with intent to deliver was based upon improper factors in aggravation; (5) the evidence did not support his convictions of either aggravated battery or fleeing and eluding a peace officer; and (6) he is entitled to credit against the fines imposed. We order sentence credit as later described. Otherwise, we affirm.

The State's evidence at trial showed that between August and September of 1987, Gerald Kempf of the Illinois Department of Criminal Investigations, Marty Winston, a Schuyler County deputy sheriff, and various law enforcement officers of Brown County conducted a surveillance. On August 30, 1987, pursuant to a plan, Mark Volk, an informant with drug charges pending against him, made a telephone call to defendant stating he, Volk, had a prospective cocaine purchaser. Volk and Winston then drove to defendant's house in Mt. Sterling. Kempf and Mt. Sterling Police Chief David Lantz followed in another vehicle. Volk went to the door and knocked. Defendant opened the door and gave Volk an envelope containing a substance later determined to be cocaine. Volk returned to the car. He and Winston then returned to defendant's door and negotiated a price of $75 for the envelope and two other envelopes also containing substances later determined to be cocaine. This was the principal evidence to support the conviction for unlawful possession and unlawful delivery of one gram of cocaine.

The other convictions arose from occurrences on September 2, 1987. The State's evidence described the following chain of events. State Trooper Craig Walker twice stopped a truck driven by defendant. The second time, after Walker indicated he was going to search the vehicle, defendant obtained permission to enter the truck to turn off the motor, but, instead, defendant sped away. Walker was standing next to the truck, and the truck doorjamb struck Walker's wrist, knocking him back a few steps, and causing Walker to require medical treatment. The charge of aggravated battery was based on the injury to Walker. The fleeing and eluding charge was based on defendant's conduct in driving away from Walker.

The State's evidence also showed Winston and Kempf were nearby when defendant drove away from Walker. The three, in separate vehicles, then chased defendant and stopped after a chase of a short distance. A dog was taken along the route defendant had used to attempt to flee. The dog came upon a small bag which contained a substance, later shown to be 28 grams of cocaine. At the time the ground was wet with dew, but the bag was dry. Evidence was presented defendant had admitted to throwing a bag of cocaine from his truck during the chase but maintained the bag was much smaller and contained less., Defendant did not present any evidence.

Prior to trial, the State filed a motion in limine to prevent defendant from presenting evidence or from commenting on a civil case filed by Terry Maltby against Schuyler County, the Illinois State Police, and Winston. The complaint in the case sought damages arising from an alleged misidentification by Winston of Maltby as a person who had delivered a controlled substance to a confidential agent. Defendant contended charges against Maltby had been dismissed after Maltby spent several months in jail. Defendant contended the pendency of the suit showed bias on Winston's part to gain favor from the State by testifying favorably to the State. The circuit court granted the motion in limine. Defendant contends this limitation against his cross-examination of an important State witness violated his right to confront that witness.

Defendant cites People v. Phillips (1981), 95 Ill. App. 3d 1013, 1019, 420 N.E.2d 837, 841-42, in support of his contention the in limine ruling was error. There, the circuit court refused to allow an accused to cross-examine a police officer in regard to the fact the officer had previously been suspended by his superiors for improperly drawing his weapon and then filing a false police report. The police officer was a crucial State witness, and defense evidence indicated he may have improperly drawn his weapon at the time of the occurrence giving rise to the charge of attempted murder against the accused in that case. In reversing the subsequent conviction in that case, the appellate court held that the cross-examination should have been permitted. The court reasoned that evidence of the 15 suspensions for improperly drawing a gun showed the officer had a bias to give testimony which would absolve him of a further sanction arising from the case on appeal. The appellate court explained that the evidence was admissible to impeach the witness' credibility but not to show his propensity to commit the conduct for which he had previously been suspended.

The refusal to permit a defendant to impeach a State's witness by evidence of pending but unproved criminal charges to show a bias of the witness has been held to be reversible error. (People v. Wilkerson (1981), 87 Ill. 2d 151, 429 N.E.2d 526; see also People v. Mason (1963), 28 Ill. 2d 396, 192 N.E.2d 835.) However, no case has been called to our attention where mere evidence of a civil suit against a law enforcement officer charging dereliction of duty unrelated to the case in issue has been held to be proper impeachment. In Phillips, the evidence refused concerned the existence of prior suspensions rather than pending charges. Testimony of bias which is remote or uncertain is not admissible. (People v. Hiller (1980), 92 Ill. App. 3d 322, 415 N.E.2d 1202.) Here, any alleged incentive on Winston's part to give favorable testimony because of Maltby's suit was remote and uncertain. The relationship between the instant case and the other public officials involved in the civil case was remote. For these reasons alone, the circuit court properly denied use of the requested evidence.

Moreover, the defense also sought to go into the question of whether, in fact, Winston had lied in the case against Maltby. To the extent this would be used to show his propensity to perjure himself here, the evidence was also inadmissible. When testimony of crime is offered to impeach the credibility of a witness, only conviction may be shown. Evidence of the actual commission of the offense is inadmissible. (Mason, 28 Ill. 2d at 400, 192 N.E.2d at 837.) To have permitted the introduction of Winston's prior conduct into evidence would have initiated a lengthy side issue, which would have consumed a great amount of time and distracted the jury from the main issue of the case. People v. Kirwan (1981), 96 Ill. App. 3d 121, 126-27, 421 N.E.2d 317, 321.

In addition, we note defendant objected to the issuance of the in limine order but did not preserve any error by the making of a post-trial motion. Had any error resulted, it would have been waived. People v. Armstrong (1983), 111 Ill. App. 3d 471, 478-79, 444 N.E.2d 276, 281.

Defendant next argues he was deprived of a fair trial by the admission of hearsay evidence concerning (1) telephone calls from an informant that defendant had recently purchased illegal drugs and was intending to dispose of them because he thought he was being watched by the police; and (2) one side of a telephone conversation, overheard by a police officer, in which the informant allegedly arranged the August 31 drug purchase.

The court allowed Kempf to testify over objections concerning his initial contact with an informant, a later call from the informant that defendant had purchased some cocaine, and that defendant was allegedly concerned the police were watching him, so he would have to dispose of the drugs. The court permitted the testimony with the limitation that the jury consider the evidence only for the purpose of showing how the officer received notice that a transaction was taking place. Defendant maintains that the prejudicial impact of this testimony, however, outweighed the probative value despite the limiting instructions.

Various appellate court decisions have held the testimony of witnesses, which would be hearsay if used to prove that the accused did the things attributed to him by the declarant, to be admissible, as long as the testimony is offered merely for the purpose of explaining police conduct. (People v. Sanchez (1987), 163 Ill. App. 3d 186, 516 N.E.2d 556; People v. Green (1985), 136 Ill. App. 3d 361, 483 N.E.2d 606; People v. Munoz (1982), 103 Ill. App. 3d 1080, 432 N.E.2d 370.) However, the trial court must carefully assess such testimony to ensure that it does not include more than is necessary to explain police conduct. A highly respected evidence ...

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