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03/30/94 PEOPLE STATE ILLINOIS v. JOSE RIVERA

March 30, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
JOSE RIVERA, DEFENDANT-APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE RALPH REYNA, JUDGE PRESIDING.

Petition for Leave to Appeal Denied October 6, 1994.

Rizzi, Tully, Greiman

The opinion of the court was delivered by: Rizzi

JUSTICE RIZZI delivered the opinion of the court:

Following a jury trial, defendant, Jose Rivera, was found guilty of possession of a controlled substance with intent to deliver (Ill. Rev. Stat. 1989, ch. 56 1/2, par. 1401), and armed violence (Ill. Rev. Stat. 1989, ch. 38, par. 33A-2). Defendant was sentenced to a term of 30 years in the Illinois Department of Corrections for possession of a controlled substance with intent to deliver, but was not sentenced for armed violence. We reverse the conviction for possession of a controlled substance with intent to deliver, and remand for a new trial; and we reverse the conviction for armed violence.

The issues before this court for review are (1) whether the trial court erred when it denied defendant's motion to quash arrest and suppress evidence; (2) whether the trial court abused its discretion in denying defendant's motion to dismiss the indictment on the basis that a police officer who had testified for the State tampered with a defense witness in an attempt to persuade her not to testify during defendant's trial, after she testified favorably regarding defendant during the hearing on his motion to suppress; (3) whether the trial court erred when it granted the State's motion in limine precluding testimony concerning certain statements made by a third party; (4) whether defendant was proven guilty of possession of a controlled substance with intent to deliver beyond a reasonable doubt and (5) whether defendant was proven guilty of armed violence beyond a reasonable doubt.

Prior to trial, defendant made a motion to quash arrest and suppress evidence on the basis that the police made a warrantless search of his home without probable cause and that they improperly seized cocaine, money and a gun. At the hearing on this motion, defendant and the State presented two greatly conflicting versions of the arrest and search.

Several witnesses testified for the defense at the hearing including defendant, Alicia "Tina" Rivera (Tina), Carlos "Carlito" Carerro and Edward "Bobby" Sanchez. Tina testified that on May 11, 1989, she was engaged to and living with defendant at 4741 West Altgeld in Chicago, Illinois. Tina testified that between 7 and 7:30 p.m. that same night, she unlatched the door for Carerro to enter whereupon some police pushed the door in and entered her home. Accordingto Tina, the police ransacked the apartment. Tina further testified that defendant entered the apartment through the back door around 9:30 or 10 p.m. Tina stated that she could not see defendant in the kitchen but that she heard him talking to the police.

Carerro testified that on May 11, 1989, he was on his way to his brother's house when a plainclothes police officer grabbed him and struck him in the mouth. He further testified that another police officer said: "That's not him." Carerro testified that the police officers then instructed him to ring the doorbell of the first floor apartment at 4741 West Altgeld whereupon Tina opened the door and the police pushed themselves into the apartment.

Sanchez resided in the second floor apartment at 4741 West Altgeld. Sanchez testified that at 8:30 or 9 p.m. on the night in question, he heard the doorbell ring and he heard six or seven men saying: "Open the door. Open the door." Sanchez also testified that he heard noises behind the building. Sanchez identified defendant's exhibits 4, 5, 6, 7, and 11 as depicting damage to the apartment caused by the police.

Defendant also testified in his own behalf. Defendant testified that his nickname was "Tallboy." Defendant testified that he left home on May 11 at 2:30 p.m. and returned home around 10:30 p.m. Defendant stated that as he was coming in the back door of his home, he found two police officers in his kitchen. Defendant testified that the police then handcuffed him and confiscated two vehicles and a briefcase.

The State called police officer Al Lucas. Officer Lucas was a member of the Area 5 SNIP Unit (Street Narcotics Impact Program). The SNIP Unit had defendant's block under surveillance. Officer Lucas and his partner, police officer Eric Sanders, were observing the house at 4741 West Altgeld. Defendant came out of his residence when some cars pulled up to the curb. Officer Lucas then walked down Altgeld Street where he encountered defendant crouched down in a baseball catcher's position near a car. Officer Lucas then approached defendant and said: "Tallboy, how are you doing?" Officer Lucas testified that defendant then stood up. As defendant stood up, a package which appeared to contain cocaine, fell from his clothing. Defendant then fled. Officer Lucas testified that defendant ran into his front door, through the living room into the kitchen and then out the back door and upstairs. Officer Lucas followed in hot pursuit and entered the apartment. Defendant was then apprehended and arrested. The police recovered an automatic handgun, a paint gun and a briefcase full of money from the apartment.

In rebuttal, defendant called Miriam Fantuzzi. Mrs. Fantuzzitestified that her husband, Oscar Fantuzzi, came home on May 11, 1989, looking "all beat up." Mrs. Fantuzzi stated that her husband told her that he got into trouble with the police because they caught him with a kilogram of cocaine. Mrs. Fantuzzi maintained that her husband told her that the police told him to tell them that he obtained the cocaine from defendant. The State objected but the testimony was admitted over the State's objection. Ultimately, the trial Judge denied defendant's motion to quash and suppress.

The trial began on November 14, 1989. Linda Jenkins, a chemist, testified that the bag which was recovered by the police contained cocaine. The police who testified during the hearing on the motion to ...


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