Appeal from the Circuit Court of Cook County. Honorable Joseph Urso, Judge Presiding.
Released for Publication March 21, 1995.
The Honorable Justice Cerda delivered the opinion of the court: Rizzi, J., And Greiman, P.j., Concur.
The opinion of the court was delivered by: Cerda
JUSTICE CERDA delivered the opinion of the court:
After a jury trial, defendant, Edward Taylor, was convicted of possession of a controlled substance with the intent to deliver (Ill. Rev. Stat. 1989, ch. 56 1/2, par. 1401 (now codified as 720 ILCS 570/401) and sentenced to four years' imprisonment. On appeal, defendant asserts that (1) the trial court erred in denying his motion to disclose the informant's identity and hold a Franks hearing; (2) the trial court erred in denying his motion to suppress statements on the ground that they were physically coerced; (3) the trial court's evidentiary errors denied him a fair trial; (4) the State's misconduct denied him a fair trial; and (5) the State failed to prove him guilty beyond a reasonable doubt. Based on the following reasons, we affirm.
During the hearing on defendant's motion to suppress, Chicago police Sergeant Ernest Brown testified that he and three other police officers executed a narcotics search warrant on June 2, 1990, at 6530 S. Martin Luther King Drive, Apartment 3A, in Chicago. When the police officers forcibly entered the apartment, defendant was the only person present. He was standing in a bedroom in front of an open window whose screen had been removed. Defendant, who was about 20 to 25 feet from the front door, identified himself and stated that he lived in the apartment.
Brown further testified that Sergeant Walter Green came into the apartment and identified defendant as the person he had seen throw two clear plastic bags containing a white powder out the window. After defendant was arrested and advised of his Miranda rights, the apartment was searched pursuant to the warrant.
Near the end of the search, the telephone rang and Brown answered it. According to Brown, a black women identified herself as defendant's girl friend and said that she would come or send someone to watch the apartment. After the phone call, defendant made a statement without being asked, threatened or struck. Officers Green, Baker, and Bowers were also present.
Defendant was then taken to the police station and processed. Defendant did not complain of an ear injury, and Brown denied ever striking defendant.
Sergeant Green testified that he went to the back of 6530 S. Martin Luther King Drive while other police officers went to the front. He saw defendant lean out a third-floor window and drop two plastic bags containing a white power. After communicating with the other police officers over his radio, Green went into the apartment and identified defendant as the person he saw drop the bags. Defendant was then arrested and advised of his Miranda rights.
According to Green, two handguns, one rifle, a scale, narcotics paraphernalia, and a brass key ring defendant identified as his own were found during the search of the apartment. Defendant was allowed to get dressed into pants, a jacket, shoes, and a shirt from undershorts and a T-shirt.
When the telephone rang, Brown answered it. After the phone call, defendant said that all the guns and narcotics were his and not his girl friend's. According to Green, defendant was not being questioned at the time and was never struck in his presence.
Defendant then testified that he lived at 6036 S. Wood Street in Chicago. On June 2, 1990, he had been playing softball in Washington Park with his friend, Marcus Gardner. After the game, the two men went to 6530 S. Martin Luther King Drive where Gardner's cousin, Emily Easley, lived. Defendant had been in the apartment before. Defendant and Gardner were watching a Cubs game on T.V. when Gardner went out to buy a six-pack of beer. Five minutes later, the police arrived.
According to defendant, he was standing three to four feet from the door when the police broke it down. After the police entered, Brown slammed defendant's head against the wall, hit him in the left ear and eye, and handcuffed him. When Green came into the apartment, Brown was hitting him as he sat in a chair.
Defendant further testified that he told the police officers that his name is Eddie, not Tyce. He denied that the officers ever asked him for identification or his address. Regarding the telephone call, defendant stated that Brown answered the phone and asked, "Who is it? Who is it? She ain't here," and hung up. Defendant denied that he said anything after the phone call. On July 19, 1990, after his arrest, defendant went to the University of Illinois Hospital because of an ear injury.
The trial court denied defendant's motion to suppress his statement because it was not the product of coercion. The trial court ruled that the statement was given after defendant was advised of his Miranda rights and not prompted by any police questioning. In its ruling, the trial court stated that the witnesses' credibility had been weighed and all the testimony was considered.
Next, there were hearings on defendant's motions to quash the search warrant, for a hearing pursuant to Franks v. Delaware (1978), 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674, and for disclosure of a confidential informant used by the police. The trial court denied the motion to disclose the confidential informant because there was no evidence that the informant was involved in the transaction in any way. The trial court then denied defendant's motion for a Franks hearing, finding that defendant had not made a preliminary showing that the facts in the officer's search warrant affidavit were false or in conscious disregard of the truth. The trial court also denied defendant's motion in limine to bar admission of drug paraphernalia, guns, and other drug sellers' tools of the trade on the basis that the items were probative of whether defendant possessed the narcotics with the intent to deliver.
At trial, Sergeant Green testified to essentially the same facts as he had during the motion to suppress. In addition, he stated that the items seized from the apartment were two guns, a rifle, a portable telephone, a seal-a-meal, a scale, a grinder, a spoon, an ammunition clip, a police scanner, a bottle labeled "Mannitol", a front door key on a brass key ring, and $414 in cash. Green also stated that defendant was dressed in undershorts and socks when the officers arrived at the apartment.
After Green testified that a search warrant data form was in the police file, the defense counsel asked that his testimony be stricken as a result of a discovery violation regarding the report. Previously, the assistant State's Attorney had stated in court that the report did not exist. The trial court directed the assistant State's Attorney to get the form, but did not strike Green's testimony.
Next, Sergeant Brown testified essentially as he had during the suppression hearing and in accord with Green's testimony. In addition, Brown testified that 85% to 90% of his narcotics arrests involved cocaine. In his experience, cocaine is usually packaged in clear plastic bags, which are prepared using seal-a-meals. In the execution of search warrants, Brown had recovered weapons 75% to 80% of the time, mobile phones 40% to 50% of the time, police scanners 60% to 70% of the ...