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March 30, 1994


Appeal from the Circuit Court of Cook County. Honorable David A. Erickson, Judge Presiding.

Petition for Leave to Appeal Denied October 6, 1994.

Greiman, Tully, Cerda

The opinion of the court was delivered by: Greiman

JUSTICE GREIMAN delivered the opinion of the court:

After a jury trial, defendant Brandel Sutton was convicted of two counts of possession of a controlled substance with intent to deliver and sentenced to concurrent terms of 25 and 10 years' imprisonment.

Defendant argues on appeal that: (1) the trial court erred by denying his motion to suppress the search warrant and produce the confidential informant whose information was allegedly used to obtain the warrant; (2) the trial court further erred by admitting in evidence at trial the preliminary hearing testimony of a state witness who died before trial; and (3) the prosecutor's misconduct in charging defense counsel with lying and in unfairly minimizing the impeachment value of the police reports denied defendant a fair trial.

We affirm the trial court.

On January 2, 1991, police officer David Strain presented a complaint for a search warrant based on a conversation with a confidential informant. According to Officer Strain's complaint affidavit, Strain knew the informant for the past five years and, during the last six months, received information which resulted in numerous arrests involving narcotic activities. Earlier that day, the informant related to Officer Strain that in the morning he had accompanied defendant to anapartment at 12001 South Prairie in Chicago where he had seen approximately two ounces of a white rocky substance which defendant identified as raw white heroin. The informant stated that, after ingesting some of the powder, he recognized the substance as heroin based on personal experience with the drug. Defendant then gave the informant a package containing at least 200 tinfoil packets, which the informant knew was a manner of packaging heroin for street sales, to conceal in his pants. The informant confirmed that the packets contained heroin after tasting the contents of a few packets.

The informant recounted how he and defendant left the apartment for the Cabrini Green public housing complex where black males purchased the packets for large sums of money. Defendant then offered the informant a job selling heroin for $200 a day, and told the informant how all of his "product" was packaged at 12001 South Prairie and that he had as much heroin on hand at that location as the informant had seen to avoid "going dry."

A search warrant issued based on this information, authorizing the police to search a black male known as Brandel Sutton and the apartment at 12001 South Prairie, and to seize heroin and any items used in the packaging of heroin.

On January 4, 1992, defendant was arrested and charged with two counts of possession of a controlled substance with intent to deliver. Defendant then filed a motion to produce the informant, alleging Officer Strain had fabricated grounds for the search warrant to issue and that no such informant existed, and requested a hearing pursuant to Franks v. Delaware (1978), 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674.

In Franks, the Supreme Court recognized that although an affidavit supporting a search warrant is presumed valid, a defendant has a right to challenge its veracity. ( Franks, 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674; accord People v. Lucente (1987), 116 Ill. 2d 133, 506 N.E.2d 1269.) The trial court will grant a motion to quash the search warrant if, after a hearing, the defendant proves by a preponderance of the evidence the affiant made false statements in the affidavit, either intentionally or with reckless disregard for the truth, and the false statements were necessary to establish probable cause. Franks, 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674; see People v. Elworthy (1991), 214 Ill. App. 3d 914, 920, 574 N.E.2d 727.

Aside from defendant's affidavit, defendant supported the motion with affidavits from his girl friend (Bronzella Boyd), his girl friend's father (Sammy Smith), his girl friend's sister (Wanda Boyd) and her boyfriend (Shelton Miller), and Nikita Pummer who placed defendant in an apartment located across town on the evening of January 1, 1991 and elsewhere than 12001 South Prairie or Cabrini Green the following morning. Defendant also submitted the affidavits of Eldridge Robinson (defendant's lifelong friend) and Kimberly Neeley (defendant's friend for eight years, former girl friend and the mother of his child) who asserted that Officer Strain told them that the alleged informant did not exist and that he learned about the Prairie address from a receipt found on Neeley during a previous arrest.

At a hearing on August 28, 1991, the trial court found the affidavits of Robinson and Neeley sufficient to order the State to produce the confidential informant's file for in camera inspection.

After reviewing the file, the court on September 25, 1991 determined that the informant did exist but denied defendant's motion to produce the informant.

At the October 25 hearing, by reason of Strain's death, the court agreed to have the informant brought into chambers for an in camera hearing for which defendant could submit questions, "and then and only then if I do not get satisfactory answers to those questions, I will then call counsel into chambers for counsel to do it." The court never called defense counsel into chambers for this purpose.

Defendant filed an amended motion to quash the search warrant and a motion to produce the informant (Amended Motion), whom he identified as L. T. Neeley, which alleged that Officer Strain never received any of the information contained in the complaint from Neeley. Although the court rejected defendant's identification of Neeley, it granted him a Franks hearing to determine whether Officer Strain falsified the information in the complaint.

At the Franks hearing, defendant produced two witnesses. Eldridge Robinson provided testimony which expanded on his previous statements submitted in his affidavit. The court undertook some of the questions surrounding the execution of his affidavit.

Defendant then presented Kimberly Neeley who testified that Officer Strain arrested her on December 6, 1990 and took from her narcotics, personal papers and $85,000. Four months later, Neeley recalled that after four police officers including Strain searched her apartment, Strain informed her that "[defendant's] lawyer is not going to find the informant because there wasn't any * * * he got the rent receipt off me with the address on it." Also at this time, Neeley realized that not all of the personal papers were returned to her nor did she receive a receipt for the money, from which only $77,000 was inventoried. When questioned by the trial court on this matter, Neeley stated that she never filed a complaint with the authorities since the money did not belong to her.

After finding the two defense witnesses incredible, the court denied defendant's motion to produce the informant.

On February 21, 1992, the defendant filed a motion urging the trial court to reconsider its refusal to produce the confidential informant, which was denied.

On May 4, 1992, defendant filed a motion to reopen his motion to produce the informant and request for documents based on newly discovered evidence. Attached to the motion was the transcribed statement of Edward White, a prison inmate, which alleged that White was the informant whom Officer Strain paid for information that defendant lived at 12001 South Prairie. Based on White's ...

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