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January 21, 1994


Appeal from the Circuit Court of Cook County. The Honorable John D. Brady, Judge Presiding.

Released for Publication March 18, 1994.

Egan, McNAMARA, Rakowski

The opinion of the court was delivered by: Egan

PRESIDING JUSTICE EGAN delivered the opinion of the court:

After a jury trial, the defendant, William Chambers, was convicted of delivery of a controlled substance. The trial Judge sentenced him to the Illinois Department of Corrections for 12 years. He maintains he was not proved guilty beyond a reasonable doubt; that his constitutional right to a speedy trial was violated; that several trial errors occurred that require a new trial; and that his sentence was excessive.

On April 3, 1990, Chicago Police Officer Israel Pacheco was working as an undercover officer purchasing narcotics. He would make as many as four purchases a day and sometimes return to the same area twice in one day. Between April 1990 and May 1991 he had made more than 100 drug purchases.

At approximately 7:45 p.m. on April 3, 1990, Pacheco and his two partners that evening, Therese Lykins and Daniel Bartoszewski, drove to the 1300 block of North Maplewood in Chicago. Pacheco was the "buy" officer and was driving a rental car. Lykins and Bartoszewskiwere "surveillance" officers and followed him in an unmarked police department car.

Pacheco parked his car on the east side of the street in front of 1303 North Maplewood. He testified that although it was dark at 7:45 p.m., the corner was "well-lit" by artificial lighting; there was a light pole on the corner where Pacheco parked. As he was stopping at the curb, he noticed a black man and two young Hispanic men standing at the corner. The black man, who was wearing a black Los Angeles Raider's T-shirt, a stonewashed black jean jacket and stonewashed black jeans, walked over to Pacheco's car. Pacheco made an in-court identification of the defendant as the black man. Pacheco had seen the defendant in the vicinity more than three times before.

As he walked toward Pacheco, the defendant asked, "What do you need?" Pacheco believed this question was an offer by the defendant to sell drugs. Pacheco told the defendant he "wanted two halves," which means a particular quantity of cocaine. The defendant told Pacheco he "had only sixteenths" of cocaine, which he would sell for $80. Pacheco said he would buy one sixteenth, and the defendant removed a "small package of white powder" in a plastic bag from his pocket. At that time, the defendant leaned into Pacheco's car so that Pacheco and the defendant were face to face and only "a matter of inches" apart. The defendant gave Pacheco the bag of powder, and Pacheco handed the defendant $80. Pacheco did not arrest the defendant at the scene because he wanted to keep his identity secret in order to protect his safety and the integrity of the undercover police operation.

Pacheco drove away from the curb and watched the defendant in his rear-view mirror. He saw the defendant walk toward the Hispanic men. As Pacheco was driving, he used his radio to tell Lykins and Bartoszewski that he would meet them at a previously designated location. Pacheco drove to the meeting place, a fire station approximately four blocks from 1303 North Maplewood. Pacheco described the defendant to Lykins and Bartoszewski, who agreed that this was the individual they saw approach Pacheco's car. Lykins and Bartoszewski returned to North Maplewood to question the defendant. Approximately five minutes after they left, they called Pacheco on his radio and told him they had located and identified the defendant.

Lykins and Bartoszewski both testified that they were parked approximately three-fourths of a block behind Pacheco on North Maplewood. They were on the west side of the street, and he was parked on the east side. They testified that the lighting was good and that nothing obstructed their view of the defendant. They both saw the defendant with two Hispanic men on the corner of the 1300 block of North Maplewood, and both saw the defendant walk away from the two Hispanic men and stand beside Pacheco's car. According to Bartoszewski, the defendant wore a black Raiders sweatshirt with black stonewashed jeans and a black stonewashed jacket. Lykins testified that the defendant wore a black sweatshirt, a black denim jacket, and black jeans.

Lykins testified that the defendant leaned into Pacheco's car and the "upper portion [of his body] above the waist" entered the car. Bartoszewski saw the defendant "reach" into Pacheco's car with "the top portion of his body, his hands." They estimated that approximately two or three minutes passed from the time they drove to the corner until Pacheco drove away. Lykins looked at the defendant as she and Bartoszewski drove past him on the way to the fire station.

After the brief Discussion with Pacheco at the fire station, Lykins and Bartoszewski returned to North Maplewood. They saw the defendant standing by himself approximately one block from the corner near 1356 North Maplewood. They left their car and questioned the defendant. Lykins testified that the interview lasted approximately five minutes. They did not arrest the defendant at this time because they wanted to protect Pacheco and maintain the undercover nature of the operation. The defendant showed Lykins and Bartoszewski a social security card, but did not present a photo ID. The officers later determined that the social security number on the card belonged to a William Chambers. The defendant also gave the officers his name, age, date of birth, height and weight. He told them his address was 3518 Evergreen.

Lykins completed a field contact card while they were interviewing the defendant and placed all this information on the card. Bartoszewski testified that the purpose of the field contact card is to help the officers when they complete later reports. The contact card was introduced into evidence. The blanks for date, signature, officer star number, beat number, and assignment were all blank on the contact card. When they returned to the police station, Bartoszewski placed all of the information from the contact card into his report. Bartoszewski additionally "ordered pictures of the subject"; the pictures arrived two or three days later. Both Lykins and Bartoszewski recognized the man in the pictures as the same man they saw beside Pacheco's car and later interviewed. They both identified the defendant as that man in court. The pictures of the defendant were introduced into evidence.

Funmi Mocha, a criminologist who worked as a supervisor in the Chicago Police Department's crime detection laboratory, testified that she tested the powder submitted by Officer Pacheco and determined that it was 1.64 grams of cocaine.

Janet Lockett, a "house mother" at 3518 Evergreen testified for the defendant that the defendant had lived at 3518 Evergreen since December 1990, but did not live there in April 1990.

The defendant was 39 years old, divorced, and had two adult children. He attended Taft High School and received a license as a cook. He testified that in April 1990 he was living at 2746 West LeMoyne, where he received mail. He never owned a Raider's shirt. He was not in the vicinity of North Maplewood on April 3, 1990, and did not "even go into that area." He had no recollection regarding what he was doing on April 3, 1990, but he knew that he did not sell drugs that day. He denied talking to Lykins and Bartoszewski and denied seeing any of the officers involved on April 3, 1990.

On cross-examination the defendant admitted that his date of birth, weight, height, eye and hair color and social security number are the same as the corresponding information written on the contact card.

In rebuttal the State introduced a certified copy of the defendant's conviction on May 22, 1978, for attempted murder and his sentence to a term of imprisonment.

We will first consider the defendant's claim that the Judge erred in denying his pretrial motion to dismiss the indictment in which he claimed that his constitutional right to a speedy trial was violated because 283 days elapsed between the occurrence on April 3, 1990, and the date of his arrest on January 11, 1991.

Officer Pacheco testified before the Cook County grand jury on May 31, 1990. The grand jury voted a true bill. A warrant was issued for the defendant's arrest pursuant to the indictment on July 12, 1990. On January 12, 1991, the defendant was stopped by police officers who asked for his identification. After he showed them his identification, they ran a check and informed him that there was a warrant for his arrest.

The speedy trial provision of the Sixth Amendment does not apply to pre-indictment delay. ( United States v. Marion (1971), 404 U.S. 307, 30 L. Ed. 2d 468, 92 S. Ct. 455; People v. Lawson (1977), 67 Ill. 2d 449, 367 N.E.2d 1244.) Thus, while pre-indictment delay may be a violation of due process, it is not cognizable under the speedy trial clause. ( Marion, 404 U.S. at 320, 322-23.) The defendant repeatedly emphasizes that his only claim is based on a speedy trial violation, and is not based on pre-indictment delay. In fact, he notes, "in this case, the issue involved centers on a lengthy post indictment delay." (Emphasis in original.) Therefore, we should not consider the 283 day period between the drug sale and the date of the defendant's arrest; only the time between the indictment and the arrest is relevant. Exactly six months passed between the date the defendant was indicted and the date he was arrested.

The Illinois case the defendant places primary reliance on is People v. Jennings (1973), 11 Ill. App. 3d 940, 298 N.E.2d 409. In Jennings, the defendant was a known member of the Students for a Democratic Society (SDS). He was arrested 258 days after a complaint and arrest warrant were filed against him; he was arrested for solicitation to commit mob action at the 1968 Democratic Convention. The Jennings defendant had no notice of the charges until his arrest. He was a full-time student at the University of Illinois during this 258 day period, and the arrest warrant indicated his student status. His driver's license and University records indicated that his permanent address was his sister's house in Cicero. He received mail and telephone calls at that address, and contacted his sister frequently. Also, during the 258 days, he saw police officers while he was attending SDS activities, and one officer told the defendant he knew who he was and where he worked. The trial Judge denied his motion to dismiss the complaint.

The appellate court reversed, holding that the delay under these circumstances was a violation of the defendant's right to a speedy trial. ( Jennings, 11 Ill. App. 3d at 945.) The defendant claimed that his memory loss over the 258 days made it impossible to formulate a defense. The Jennings court stated that "eight months could do much to erase the memory of a few minutes during an extremely tumultuous week." (11 Ill. App. 3d at 944.) This Conclusion was supported by the fact that "there were substantial conflicts and discrepancies" in the State witnesses' testimony about the mob action. ( Jennings, 11 Ill. App. 3d at 944.) Finally, the court noted the ease with which the defendant could have been arrested if the police had attempted to do so, and found that "the pre-arrest delay was caused by the State." Jennings, 11 Ill. App. 3d at 944.

The State relies primarily on People v. Lawson, which requires a defendant to show "actual and substantial" prejudice to prevail on claims that pre-trial delay requires reversal. ( Lawson, 67 Ill. 2d at 459.) As the defendant correctly notes, however, Lawson involved pre-indictment delay, and discussed only due process and not the Sixth Amendment right to a speedy trial. ( Lawson, 67 Ill. 2d at 457, 458-59.) Moreover, while the defendant does not recognize this point, several courts have held that "the Lawson standard is inapplicable" to cases involving "undue delay occurring after the filing of an indictment." ( People v. Belcher (1989), 186 Ill. App. 3d 202, 205, 542 N.E.2d 419; see also People v. Schroeder (1981), 102 Ill. App. 3d 133, 429 N.E.2d 573; People v. Dunn, (1977), 49 Ill. App. 3d 1002, 365 N.E.2d 164; see generally People v. Nichols (1978), 60 Ill. App. 3d 919, 377 N.E.2d 815.) Instead, the test for violation of speedy trial rights established in Barker v. Wingo (1972), 407 U.S. 514, 33 L. Ed. 2d 101, 92 S. Ct. 2182, and adopted by the Illinois Supreme Court in People v. Bazzell (1977), 68 Ill. 2d 177, 369 N.E.2d 48, applies to cases involving delay after indictment. Belcher, 186 Ill. App. 3d at 205.

In Belcher, the court explained application of the Barker test in Illinois. The test involves the analysis of four factors, which should be balanced and weighed by a trial Judge: (1) the length of the delay; (2) the reason for the delay; (3) the defendant's assertion of his right; and (4) the prejudice to the defendant. ( Belcher, 186 Ill. App. 3d at 205.) The factors must be considered "in light of the circumstances of each case" and none of the factors is either a necessary or sufficient condition to the finding of a deprivation to the right of a speedy trial. ( Belcher, 186 Ill. App. 3d at 207.) In cases where the defendant did not know about the charges against him, the third factor, assertion of the right, "is irrelevant." ( People v. Yaeger (1980), 84 Ill. App. 3d 415, 419, 406 N.E.2d 555; Belcher, 186 Ill. App. 3d at 207.) Therefore, we need address only the three other factors.

The Belcher court explained that "the threshold question on a Barker analysis is whether the delay is presumptively prejudicial." (186 Ill. App. 3d at 205-06.) If there was an extremely long delay, a court may presume prejudice and shift to the State the burden of showing that the trial was timely. ( Jennings, 11 Ill. App. 3d at 944.) In this case, a six month delay is not presumptively prejudicial. This delay was shorter than other delays which did not raise any presumption, and was a great deal shorter than delays which were held presumptively prejudicial. Belcher, 186 Ill. App. 3d at 207 (presumption with 29 month delay); Yaeger, 84 Ill. App. 3d at 416-17 (presumption with 31 month delay); compare Jennings, 11 Ill. App. 3d at 944 (no presumption with 238 day delay).

Analyzing the three remaining factors, we Judge that the trial court did not err in concluding that the six month delay did not violate the defendant's Sixth Amendment right to a speedy trial. First, the delay was six months. Under the cases, this is a neutral factor. Second, the reason for the delay was explained by the State in this case, unlike many of the cases cited by the defendant, including Jennings. All three officers testified why the defendant was not arrested immediately--the need for secrecy and protection of identity in this undercover program. Moreover, while the defendant argues extensively that the State could have located him, the address on the arrest warrant was for 3518 Evergreen, where the defendant claims he did not live until one month before his arrest, but was the address he gave the police. If he gave the police false information, the effect of that false information is attributable to the defendant, not the State. (See Belcher, 186 Ill. App. 3d at 206 (defendant need show that the delay was not attributable to his conduct).) Again, the facts presented by the defendant on this issue are not as strong as those present in Jennings.

The defendant points to the fact that he received unemployment compensation and a voter registration card at the LeMoyne address. In our judgment it would be unfair to impute to the three officers involved in this case the knowledge that some individual named William Chambers received a voter registration card at a particular address in the City of Chicago. Not only does the defendant ask us to impute that knowledge to those officers, but also to charge them with the responsibility of recognizing that the William Chambers at the LeMoyne address was, in fact, the same William Chambers who gave them the address of 3518 Evergreen.

The defendant argues that he was prejudiced by his loss of memory. However, the prejudice resulting from memory loss in this case is not as strong as that in Jennings, where the officers similarly suffered memory losses. Few, if any cases, do not have witnesses whose memories are not impaired by the passing of time to some degree. Balancing all of these factors, we cannot say that the trial Judge abused his discretion in denying the defendant's motion to dismiss the indictment.

The defendant next maintains that the State violated the law of Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712, by using peremptory strikes against black venirepersons, Kevin James and Byron Gray. The defendant's entire claim of a Batson violation is based on the fact that the State dismissed the two black jurors, who, in the opinion of the defendant's attorney "would have been exemplary jurors." We agree with the State that the defendant has not provided an adequate record on which this court may make a finding that the State violated Batson. The record does not show the number of peremptory strikes exercised by either side, the racial composition of the jury, the racial composition of the venire, the race of the venirepersons struck by either side or excused by the Judge, or even ...

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