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January 25, 1994


Appeal from the Circuit Court of Kane County. No. 91-CF-124. Honorable Melvin D. Dunn, Judge, Presiding.

Released for Publication March 3, 1994.

Geiger, McLAREN, Doyle

The opinion of the court was delivered by: Geiger

JUSTICE GEIGER delivered the opinion of the court:

After a jury trial, the defendant, Archie Preatty, was convicted of the unlawful possession of a controlled substance, cocaine, with the intent to deliver (Ill. Rev. Stat. 1991, ch. 56 1/2, par. 1401(a)(1)(A) (now 720 ILCS 570/401(A)(1)(a)(West 1992))) and the unlawful possession of a controlled substance, cocaine, without a controlled substance tax stamp (Ill. Rev. Stat. 1991, ch. 120, par. 2160 (now 35 ILCS 520/10 (West 1992))). The defendant received concurrent prison terms of six years on the former conviction and one year on the latter.

On appeal, the defendant argues that: (1) the evidence did not prove him guilty beyond a reasonable doubt; (2) he was deprived of a fair trial by the State's failure to disclose before trial that its principal witness had a felony charge pending against him; and (3) the State improperly denied him the potential jurors' arrest records. We reverse and remand.

The State's first witness was Charles Walton, who was a limousine driver at the time of trial but, as of January 25, 1991, was in his eighth year as a uniformed security officer employed by Hawthorne Security. On the evening of January 25, 1991, Walton was assigned to guard Hansen's Motel (Hansen's) on Benton Avenue in Aurora. He had been working there on and off for between a half year and a year, and he was familiar with the layout of Hansen's. Hansen's has a horseshoe-shaped annex with two floors. On the evening of January 25, Hansen's was well illuminated by lights above each of two doorways and by streetlights. Walton was sitting in a car in a driveway directly across the street from the annex and about 100 or 110 yards away.

At about 7:50 p.m., Walton looked through a pair of binoculars and observed the defendant, who was walking alone down the sidewalk toward Hansen's. Although it was "very, very, very cold out," defendant was wearing no gloves. Defendant had nothing in his hands. The defendant went into a room at Hansen's and emerged about six minutes later. When he came out of the room, he was carrying (not wearing) a yellow work glove and was looking over his shoulder. The defendant started walking west on Benton Street. Walton kept observing; he had an unobstructed view of the defendant.

Walton saw the defendant walk across the street and directly to a car that was parked in a parking lot about a half block away from Walton. The defendant approached the driver's side of the car, grabbed the door handle, turned, and went to the passenger's side. The defendant returned to the driver's side, put the glove into his belt, reached down and picked something off the ground, and started "fiddling" with the lock.

At this point, Walton drove his car up to the defendant's car so that the driver's side of Walton's car was next to that of the car by which the defendant was standing. Walton rolled down the window and called out something to the defendant. The defendant turned, saw Walton in uniform, and dropped the glove onto the ground. Walton was about 4 1/2 feet from the defendant when the defendant dropped the glove. Walton exited his car and asked the defendant to step away from the other car. He saw that the defendant had a stick in his hand and, apparently, that the defendant had been trying to unlock the car.

Walton picked up the glove. Because the glove felt "sort of packed with something," he looked inside. He observed that in the glove was a brown paper bag that was open from the top. Inside the bag were numerous small packets containing a white powdery substance. Walton placed the glove on top of the car that the defendant had been trying to enter. He told the defendant that the latter was being held and detained for the Aurora police. He patted down the defendant before placing the defendant into Walton's car. During this pat-down search, Walton found no weapons, no drug paraphernalia, no money, and no key to any hotel room.

Walton did not let the bag out of his sight. Walton called the police department on his car phone. Eventually, Officer James Fanscali arrived. After talking with Walton, Fanscali took the defendant, the glove, and the bag into custody.

According to Walton, the defendant had entered room 32 on the first floor of Hansen's annex. Walton acknowledged that, had the door been locked, the defendant would have needed a key to enter, unless the lock was broken. He had no idea whether the door was locked on the evening of January 25, 1991. He did not investigate whether the lock was broken, although the police later did so. Walton was present when the police searched room 32, but he did not enter the room, and he had no further involvement in the case other than giving his testimony at trial.

On cross-examination, Walton testified that, while he worked for Hawthorne Security, he made about 575 detentions for arrest. He had worked "hand in glove" with the police. Walton had never applied to be a police officer. He was with the Kane County sheriff's police "for awhile" as an auxiliary, but he decided that it "wasn't [his] thing." He had also undergone some police training, principally 40 hours of training with the State police. This training included regular police courses on detaining individuals, gun safety, and courtroom procedure.

Aurora patrol officer James Fanscali testified that, at about 8:30 p.m. on January 25, 1991, he was dispatched to Hansen's. The parking lot was well lighted, and, upon arriving, Fanscali could see that Walton was standing next to the defendant. Walton was holding a yellow cloth work glove. Walton explained that he had gone to the defendant and the car to investigate. Fanscali took the glove from Walton. Inside the glove was a paper bag, and inside the bag was a plastic baggie. Inside the baggie were numerous small packets, each of which was wrapped with a twist tie. Each small packet contained a white powdery substance. Fanscali field tested one of the small packets and concluded that it contained cocaine. He observed that neither the paper bag nor the baggie or any of the small containers had a Department of Revenue controlled substance tax stamp or theequivalent. At trial, Fanscali identified one State exhibit as the yellow glove that Walton had handed him. He identified other exhibits as the paper bag and the plastic containers that had been inside the glove.

After he examined the glove at the parking lot, Fanscali arrested the defendant. He searched the defendant at the scene and found no weapons; he could not recall at trial whether the defendant was carrying any keys. Fanscali did not perform the more thorough booking search at the police station. After the defendant was in custody, Fanscali and another officer asked for the defendant's consent to a search of room 32. The defendant signed a consent form. When Fanscali returned to Hansen's to search the room, he contacted Walton, who used a key to unlock the door to room 32. The police searched the room for about two hours. Nobody ...

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