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06/30/94 PEOPLE STATE ILLINOIS v. JOHN PHILLIPS

June 30, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
JOHN PHILLIPS, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. Honorable Daniel J. Kelley, Judge Presiding.

Petition for Leave to Appeal Denied December 6, 1994.

Theis, Hoffman, Cahill

The opinion of the court was delivered by: Theis

JUSTICE THEIS delivered the opinion of the court:

On January 6, 1989, an anonymous informant, "John Doe," appeared before a Judge on a request that a search warrant be executed. In the complaint for a search warrant, John Doe stated that earlier that day he had purchased 1/2 ounce of cocaine from the defendant, John Phillips, at 4712 North Paulina. Based on the informant's statement to the Judge, the police obtained a search warrant for the apartment of the defendant, John Phillips. Upon executing the search warrant, the police discovered over 250 grams of cocaine and $18,550 located in a safe in the closet of the defendant's bedroom. The defendant was charged with possession of a controlled substance with intent to deliver. Before the trial, the defendant filed several motions to produce the informant and to suppress the evidence. All the motions were denied. After a jury trial, the defendant was found guilty of possession of a controlled substance with intent to deliver more than 100 grams but not more than 400 grams of cocaine, a controlled substance. The defendant was sentenced to 18 years in prison. He now appeals his conviction and sentence. We affirm.

FACTS

Pre-Trial Motions

Before the trial, the defendant filed three motions. The first motion that the defendant filed was a motion to produce the informant. In this motion, he alleged that failing to produce the informant would prevent him from obtaining due process of law and effective assistance of counsel. The motion to produce the informant made reference to the second motion which the defendant filed on that same date, the motion to suppress evidence. The motion to suppress evidence alleged that the search warrant complaint contained false material statements which were necessary to the finding of probable cause. In this motion, the defendant requested a Franks evidentiary hearing. Franks v. Delaware (1978), 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674.

In support of the motion to suppress evidence, the defendant filed affidavits prepared by the defendant and the defendant's mother. The defendant alleges that he also filed the affidavit of his friend, Daniel Crossland. Although Crossland's affidavit does not appear in the record, we will consider it because it is apparent that the trial court reviewed this document.

The defendant's affidavit stated that the defendant had been in the apartment all day but had slept from 6 a.m. until 9:30 or 10 p.m. According to the defendant, no one had come to the apartment that day. The defendant's mother stated in her affidavit that she had also been in the apartment all day. During the day, she had watched TV, read the paper, talked on the phone and prepared meals. She stated that her son had been home sleeping all day and no one had come to the apartment to buy drugs. Crossland's affidavit stated that he had been in the apartment at 4712 North Paulina all day. He stated that he had returned to the apartment at 6 a.m. and had gone to sleep. He slept all day, awakening at 9 or 10 p.m. He further stated that no one had come to the apartment that afternoon.

The defendant also filed a supplemental motion to suppress. In this motion, the defendant asserted that all evidence in the case should be suppressed because the complaint for a search warrant contained no statement of the reliability of the informant.

At a hearing held on June 5, 1990, the trial court denied all motions. After the arguments on the motion to produce the informant, the court found that a sufficient showing had not been made to reveal the informant or his identity. The trial Judge also denied the motions to suppress the evidence. The court found that the affidavits were from interested parties and "this factor * * * would tend to weaken or could tend to weaken the effect of the affidavits." The court also found that the Judge who issued the search warrant had the opportunity to observe the John Doe informant when he appeared before the court and could make an assessment as to whether that informant was credible and whether the search warrant should be issued. Based upon the totality of the circumstances before the Judge, then, he concluded that the defendant had not made a substantial preliminary showing that an evidentiary hearing was necessary.

The Trial

The defendant's trial began on February 27, 1991. Officer Bocconcelli, the first witness called, related the events leading up to the defendant's arrest. Officer Bocconcelli testified that on January 7, 1989, he had a search warrant authorizing him to search 4712 North Paulina, second floor. The officer stated that he first found the defendant in a bar and, after identifying himself as a police officer, told the defendant that he had a search warrant for his apartment. Officer Bocconcelli and the defendant then went to the apartment; Officer Bocconcelli found a safe in the closet of the defendant's bedroom and opened it. In the safe were several bags of white powder which the officer believed to be cocaine and $18,550 in U.S. currency. Officer Bocconcelli then stated that he placed the defendant under arrest. This testimony was substantially similar to the testimony offered by Officer Bertuca, who accompanied Officer Bocconcelli to the defendant's apartment on the night in question. The substance taken from the defendant's apartment was identified at trial as being over 250 grams of cocaine.

The defense rested its case without presenting any witnesses or evidence. After deliberating, the jury found the defendant guilty of the crime of possession of a controlled substance with intent to deliver more than 100 grams but not more than 400 grams of cocaine, a controlled substance. On April 10, 1991, the Judge denied all post-trial motions, including a motion for a new trial. The parties then proceeded to a sentencing hearing.

The Sentencing Hearing

At the sentencing hearing, the State described the defendant's history of convictions for narcotics offenses. The State also noted that the defendant was convicted of possessing a large amount of cocaine. Defense counsel, however, characterized the defendant's prior convictions as "minor" offenses. Defense counsel also noted that, although the defendant was arrested on similar charges after the arrest at issue in this case, he had not yet been tried or sentenced on those charges.

The Judge elected to sentence the defendant to 18 years in prison, noting that the defendant had a more substantial involvement with drug trafficking than most individuals.

The defendant now appeals the sentence and conviction. We address the issues raised in turn.

ANALYSIS

The defendant does not challenge any of the proceedings at trial. Nonetheless, the defendant raises numerous issues in his brief concerning the pretrial motions and sentencing. We will discuss separately the issues raised with respect to each of the pretrial motions and then, finally, we will address the question of the propriety of the sentence.

Motion to Produce the Informant

Initially, the defendant raises the issue of whether the trial court properly denied his motion ...


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