Appeal from the Circuit Court of Cook County. The Honorable Deborah M. Dooling, Judge Presiding.
The Honorable Justice Rakowski delivered the opinion of the court: Zwick, J., concurs. Justice Egan specially concurring:
The opinion of the court was delivered by: Rakowski
JUSTICE RAKOWSKI delivered the opinion of the court:
Following a jury trial, defendant, Marvell Singletary was found guilty of possession with intent to deliver more than 15 grams of a controlled substance (720 ILCS 570/401 (West 1992)) and sentenced to eight years in prison. This sentence was to run consecutively with an earlier one year sentence where defendant pled guilty to an unrelated charge of possession of cocaine. The issues on appeal are: (1) whether defendant was deprived of his Sixth Amendment right to confront witnesses against him where hearsay statements of a confidential informant were admitted as evidence against him; and (2) whether the jury properly found defendant guilty of possession of a controlled substance with the intent to deliver beyond a reasonable doubt.
The evidence presented by the State was through the testimony of Police Officer Wayne Bunch, Police Officer Wayne Gulliford and forensic chemist Arthur Kruski. On June 9, 1992, Officer Bunch was assigned to the narcotics section of the Organized Crime Division of the Police Department where he had worked for four years. While at the police station, Bunch received a telephone call from a confidential informant sometime between 9 a.m. and 10:30 a.m. The informant had provided Bunch with reliable information in the past which resulted in arrests and the seizure of contraband. During the June 9 telephone call the informant told Bunch that a person named Marvell who the informant briefly described, would be in a small blue Dodge or Plymouth hatchback car driving to Dearborn Homes, a housing project at 2971 South Dearborn, to pick up a package of cocaine.
After receiving the information, Bunch contacted his partner, Officer Gulliford as well as Officer Joseph Rokas and Sergeant William Owens. The four officers along with Gulliford's canine, Bosco, went to the vicinity of 2971 Dearborn. Gulliford trained with Bosco at the canine training center for eight weeks in order to become a narcotics dog handler, and he had been working with Bosco since April 4, 1992.
At approximately 10:35 a.m. the officers arrived at the Dearborn Homes and parked their unmarked police car one block from the building where they had an unobstructed view of the building parking lot. Gulliford, Bunch and Bosco, remained in the car while Rokas and Owens positioned themselves about three-quarters of a block east of the building.
Around 15 minutes after the officers arrived, Bunch and Gulliford saw a blue hatchback vehicle pull into the parking lot at 2911 South Dearborn. There were two men in the front seat of the vehicle and one (defendant) in the back seat. The officers saw defendant exit the vehicle, go into the building, and return approximately two minutes later. During the time that defendant was away from the vehicle, the officers did not see anyone go into the trunk, hatch area, or the back seat of the vehicle.
After defendant reentered the vehicle, it drove away from 2971 South Dearborn and headed toward the expressway. Before entering the expressway, the vehicle stopped at a traffic signal at 31st Street and LaSalle. At this time Bunch and Gulliford activated their emergency equipment. Gulliford stopped his vehicle two to three feet behind the blue vehicle. Bunch approached the right rear of the vehicle where he saw defendant turn and look over his right shoulder in Bunch's direction. According to Bunch, defendant then placed his hand inside his left jacket pocket, then removed his hand and reached over to the left side of him under the seat cushion. In the meantime, Gulliford approached the vehicle on the driver's side.
The three occupants were asked to exit the vehicle and were "patted down" for weapons. None were recovered. At this time, based on prior information from the confidential informant, Gulliford brought out Bosco and gave him a command to fetch dope.
Bosco came over to the driver's side of the vehicle and started scratching at the door. Bosco was then allowed to enter the vehicle where he went to the back cushion and began scratching at it. He stuck his muzzle underneath the cushion and retrieved a three inch by three inch clear plastic sandwich type bag containing two smaller clear plastic bags each containing one piece of off-white hard substance which was later found to be crack cocaine.
Officer Gulliford recovered the bag from Bosco and gave it to Bunch who later inventoried it and sent it to the Chicago crime lab for analysis. Defendant was then placed under arrest and advised of his Miranda rights. Bunch and Gulliford both stated that defendant acknowledged that the bags were his and that the other two men in the car knew nothing about them. The other men in the vehicle were then released. Gulliford testified that the street value of the cocaine recovered was $5,684.
On cross-examination, Bunch testified that in exchange for the information provided by the informant he was paid a sum of money but not given any assistance with court proceedings against him. Bunch and Gulliford testified that no fingerprints were recovered from the plastic bags. Gulliford also acknowledged on cross-examination that Bosco did not react when he walked past defendant and the other occupants of the vehicle, but on re-direct, he explained that Bosco did not always react when someone was seated on packaged cocaine, and that in this instance, Bosco was not close enough to the occupants of the vehicle.
Arthur Kruski was qualified by the court as an expert in forensic chemistry. Kruski testified that on July 12, 1992, he was working in the Chicago Police Department crime laboratory. On that date he was assigned to analyze one clear plastic bag containing two clear plastic bags each containing a white rocky substance, for the presence of a controlled substance. The total weight of the two bags was 38.65 grams. Based on the tests he conducted, Mr. Kruski concluded that both bags contained crack cocaine.
Defendant testified that at approximately 9 a.m. on June 9, 1992, he was in the back parking lot of 5326 South State Street, where he lives with his girlfriend and son. He asked the brother-in-law of defendant's friend, June, and a friend of the brother-in-law to give him a ride to his friend's home at the Dearborn Homes. The names of the two men who gave defendant a ride are Charles Lawshea and Tumery (Tyrone) Moore. On the way to Dearborn Homes, Moore stopped at a pay telephone to make a call. They then drove to 2971 South Dearborn where defendant went into the building, determined that his friend was not at home and returned to the car.
Defendant further testified that the police stopped their vehicle, had all three men get out of the car where they searched them and found nothing. Defendant then stated that a police dog searched the vehicle and found "what was supposed to be in the car" according to defendant. The officers questioned the driver apart from defendant and then returned and told defendant he was under arrest for possession of cocaine. The other two men were then released. Defendant testified that he was not advised of his rights and did not make any statements to the police. Defendant did acknowledge being arrested for possession of cocaine in 1991 and receiving probation which he completed satisfactorily.
On cross-examination, defendant stated that he had been friends with June for three or four months but did not know her last name. Defendant stated that he never hung around with the two men who drove him to Dearborn Homes. According to his testimony, defendant got in the car with Lawshea and Moore at around 9:30 a.m., the telephone call they stopped to make took about five or ten minutes, and they arrived at the Dearborn Homes about ten to fifteen minutes later. When defendant was asked what he did between 9:30 and 10:15 a.m., he stated that he was in the parking lot with June trying to get a ride and did not know exactly what time he got into the car. Defendant acknowledged that nothing was handed to him or placed in the back seat while he was in the vehicle.
In rebuttal, the State offered the certified convictions of defendant for possession of cocaine in 1990 and 1991. He received probation for both convictions.
Defendant contends that he should be granted a new trial because his conviction was based on the use of inadmissible hearsay statements from an undisclosed confidential informant. Defendant further contends that the prejudicial effect of the hearsay statements was compounded by the prosecutor's use of the statements in her opening statement and closing argument, and by her emphasis on the reliability of the confidential informant.
Hearsay evidence is "testimony in court or written evidence of a statement made out of court, such statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter. [Citation.] The fundamental purpose of the hearsay rule was and is to test the real value of testimony by exposing the source of the assertion to cross-examination by the party against whom it is offered." People v. Carpenter (1963), 28 Ill. 2d 116, 121, 190 N.E.2d 738.
The complained of statements regarding the substance of Bunch's conversation with the informant were presented during the prosecutor's direct examination of Bunch:
Q. On the morning of June 9, 1992, did you receive a phone call at the station where you were working?
Q. And what if any information did you get in ...