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10/10/95 PEOPLE STATE ILLINOIS v. BARRY A. NELSON

October 10, 1995

PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
BARRY A. NELSON, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of the 14th Judicial Circuit, Mercer County, Illinois. No. 92-CF-93. Honorable Martin Conway, Judge Presiding.

Released for Publication November 21, 1995.

Present - Honorable Allan L. Stouder, Presiding Justice, Honorable Michael P. MC Cuskey, Justice, Honorable William E. Holdridge, Justice. Presiding Justice Stouder delivered the opinion of the court: McCUSKEY and Holdridge, JJ., concur.

The opinion of the court was delivered by: Stouder

PRESIDING JUSTICE STOUDER delivered the opinion of the court:

Following a jury trial, the defendant, Barry A. Nelson, was found guilty on three counts of unlawful delivery of a substance containing cannabis (720 ILCS 550/5 (West 1994)). The defendant was sentenced to concurrent terms of 3 years in prison on two of the counts and to 4 years in prison on the third count. In addition, he was ordered to pay fines, fees and costs totaling more than $5,500. The defendant appeals arguing reversible error occurred when the prosecutor questioned him about a previous felony conviction during cross-examination. For the reasons set forth below, we reverse and remand.

In December 1992, the defendant was charged with selling cannabis to an undercover police officer. The transactions allegedly taking place on three dates in February 1992 - the 7th, the 14th and the 26th. At trial, Officer Thomas Wiley, a special agent with the Henry-Mercer County Drug Task Force, testified that he was introduced to the defendant through a confidential informant in January 1992. Wiley testified he was present on three occasions when the confidential informant purchased cannabis from the defendant.

Thereafter, on February 7, 1992, Wiley met with the defendant in downtown New Boston at a phone booth. According to Wiley, the confidential informant set up the meeting. The confidential informant did not accompany Wiley to the "buy." Wiley testified the defendant was driving a pickup truck with license plate number 3594 GB. The registered owner of the vehicle was the defendant. Wiley recognized the defendant as the man who had earlier sold drugs to the confidential informant. At the phone booth, the defendant got out of the pickup truck and entered Wiley's undercover vehicle. He sold approximately one ounce of cannabis to Wiley for $240.

Wiley was not sure of the time of day when the February 7, 1992, transaction took place. He believed it was late afternoon or early evening. It was also brought out on cross-examination that Wiley's report mentioned a second person who was allegedly driving the defendant's pickup truck on that day, although there was no identification or physical description. Wiley also could not recall the actions of the defendant immediately after he exited the undercover vehicle. He could not recall the location of the pickup truck or how the defendant left the scene.

Wiley testified he next met with the defendant on February 14, 1992, at the same location in downtown New Boston. Wiley had contacted the defendant directly and set up the meeting. They agreed to meet at the phone booth in New Boston. On this occasion the defendant arrived in a "darker vehicle" with another person driving the car. On cross-examination, Wiley indicated the other person was a white female. According to Wiley's report, the transaction took place around 3:00 p.m. The defendant got into Wiley's car and the dark-colored vehicle drove westbound on Route 17 toward the Mississippi River. The defendant sold Wiley approximately one ounce of cannabis and instructed Wiley to drive to the Mississippi River where the "dark-colored" car was waiting. A check of the license plate number on the car showed it was registered to the defendant.

Wiley again called the defendant on February 25th or 26th and asked if he could purchase cannabis. Wiley testified he met with the defendant at the phone booth in New Boston on February 26, 1992. The defendant was driving the same dark-colored car used in the February 14, 1992, transaction. From his car, the defendant motioned to Wiley to follow him. Wiley followed the defendant to a cemetery outside of New Boston. At the cemetery, the defendant got into Wiley's undercover vehicle. Wiley purchased approximately one and one-half ounces of cannabis from the defendant in exchange for $360. According to Wiley's report, the transaction took place after 3:50 p.m. Wiley testified the entire transaction lasted 15 or 20 minutes.

Wiley testified there were further telephone conversations with the defendant after February 26, 1992. Wiley testified he inquired of the defendant whether he could buy other drugs from the defendant. However, there were no further sales.

Wiley testified there was no doubt in his mind that the defendant was the person who sold cannabis to the confidential informant and to him in January and February of 1992.

On cross-examination, Wiley was asked about the money used to make the purchases. Wiley testified the task force used what is termed "official advanced funds" (O.A.F.) in making these purchases. Wiley further testified such money is on occasion marked in an attempt to trace such funds. Wiley testified that no O.A.F. was recovered from the defendant following his arrest.

Wiley also agreed that defendant's fingerprints were never recovered from any of the packages containing cannabis. In addition, no physical description of the defendant ...


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