Appeal from the Circuit Court of Cook County. Honorable Barbara J. Disko, Judge Presiding.
Released for Publication December 16, 1994.
The opinion of the court was delivered by: Tully
PRESIDING JUSTICE TULLY delivered the opinion of the court:
Defendant, Melvin Patterson, was charged by indictment with armed violence, possession of a controlled substance with intent to deliver more than 15 grams but less than 100 grams of cocaine and delivery of less than 1 gram of a controlled substance. Prior to trial, the State motioned for leave to amend the indictment to read more than 400 grams but less than 900 grams of cocaine, which was the original charge presented to the grand jury. Before the grand jury and at trial the State presented evidence that defendant had possession of 517 grams of cocaine at the time of his arrest. Over defendant's objection the trial court allowed the State's motion to amend. A simultaneous double trial was held for defendant and co-defendant Tracie Thomas (hereinafter Tracie). Defendant was tried by a jury whereas Tracie waived her right to trial by jury and opted for a bench trial. The jury returned verdicts of guilty on the delivery and possession counts and not guilty on the count of armed violence. The trial court entered judgment on the verdicts and sentenced defendant to 3 years' imprisonment for the delivery and 13 years' imprisonment for the possession, both sentences to run concurrently. It is from the judgment of conviction that defendant now appeals to this court pursuant to Supreme Court Rule 603 (134 Ill. 2d R. 603). Tracie is not a party to this appeal.
For the reasons which follow, we affirm in part and reverse in part and vacate in part and remand with directions.
The Chicago police department, via its superintendent's narcotics hot line, had received information that the apartment building located at 6151 South Champlain Avenue was being used for drug trafficking. Thus, on December 28, 1988, at 2 p.m., Chicago police officers David Lemieux, Gerald Hamilton, Rendella Taylor and Quadir Dawan were conducting a plain clothes surveillance of the building. Officer Lemieux testified that after 20 minutes of observation the officers saw four or five men go up the building's stairs to the rear door of a small enclosed porch of a second floor apartment, knock on the door and exchange money for something with the person who answered the door. Consequently, the officers decided that Officer Taylor should go to the same door and "try to make a controlled narcotics buy." Officer Taylor recounted that she then took $40 in cash, with pre-recorded serial numbers, and proceeded to the rear door. At this time, Officer Hamilton stood under the stairwell to back-up Officer Taylor, Officer Dawan was covering the front of the building and Officer Lemieux was watching the north side of building.
Officer Taylor testified that she knocked on the rear door and defendant opened it and asked what she wanted. Officer Taylor responded that she wanted a "bag of girl," a slang term for cocaine. Defendant then reached for a large plastic bag which contained several small plastic bags and withdrew a single small bag and told Officer Taylor that its price was $25. Officer Taylor paid defendant and he gave her the bag and closed the door. Based on her experience of a police officer, Officer Taylor believed the bag contained cocaine. Officer Taylor then went halfway down the staircase and signalled to the other officers that she had made the buy.
Officers Hamilton and Dawan joined Officer Taylor on the porch and together the three proceeded to the rear door of the second floor apartment. Officer Hamilton knocked on the door, called out "police, police," forced the door open and then entered the apartment followed by the other two officers. Whereupon, Officer Taylor recovered a bag of suspect cocaine located near the door.
Officer Taylor recalled that defendant was initially in the kitchen and Tracie was in the kitchen doorway. Defendant then proceeded towards the front of the apartment but stopped when told to "freeze" by Officer Hamilton. Tracie also attempted to leave but was stopped by Officer Dawan. Both defendants were brought into the kitchen.
Officer Lemieux recollected that he then entered the apartment after retrieving a white Sears bag that Tracie had thrown out of one of the apartment's windows. The bag held a couple of scales, a sifter and a clear plastic bag which contained what he believed to be cocaine.
Throughout this time there were two small children, both under 5 years of age, present in a bedroom located near the kitchen. The police eventually moved them to the living room in the front of the apartment. Officer Taylor stated that a few minutes later defendant's mother, Toni Patterson (hereinafter Toni), and defendant's brother, Mark Patterson (hereinafter Mark), entered the dwelling.
Officer Lemieux recalled that Officer Hamilton read defendant his Miranda warning and heard defendant state with respect to Tracie that "she's just trying to protect me, it wasn't her's." Defendant also indicated to the police that none of his family members who lived in the building knew anything about his involvement with drugs. Officers Lemieux, Officer Hamilton and defendant then went to the bedroom where Tracie had thrown the bag out of the window. Defendant then proceeded towards the room's closet and said "it's over here." Officer Hamilton told defendant that he could not enter the closet and Officer Lemieux then pulled defendant aside. In a canvas bag in the closet were two fully-loaded revolvers and 11 clear plastic bags of suspect cocaine. Tracie was then taken to the living room.
From a closet in the hallway, Officer Hamilton recovered a precision triple-beam laboratory scale and miscellaneous documents proving defendant's residency. A custodial search of defendant's person yielded a electronic "beeper" and $250 in cash, including the currency with the prerecorded serial numbers that Officer Taylor had earlier exchanged with defendant for cocaine. All items seized by the police were inventoried by Officer Hamilton.
Funmi Moka, a criminalist for the Chicago police department and a qualified expert in chemistry, testified that she weighed and tested the substances found at defendant's residence. The substances were grouped in three exhibits and each of these weighed .24 grams, 28.07 grams and 488.7 grams, respectively. Various ...