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February 2, 1996



The Honorable Justice Gordon Delivered The Opinion OF The Court: McNULTY, P.j., and Hourihane*, J., concur.

The opinion of the court was delivered by: Gordon


The defendant, Mark Clemons, was charged by indictment with possession of a controlled substance with intent to deliver in violation of sections 401(a)(2) and 401.2(2) of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1987, ch. 56 1/2, par. 1401(a)(2), now codified at 720 ILCS 570/401 (West 1994); Ill. Rev. Stat. 1988 Supp., ch. 56 1/2, par. 401.2(2) repealed by P.A. 86-266, § 2, eff. Jan. 1, 1990 & P.A. 86-442, § 2, eff. Jan. 1, 1990). Following a jury trial, he was found guilty and was sentenced to a term of 13 years in the adult division of the Illinois Department of Corrections.

On appeal, the defendant contends that he was denied due process by admission of a statement not tendered to defense counsel prior to trial; he was denied effective assistance of counsel; and he was not proved guilty beyond a reasonable doubt.

Prior to trial, the State filed a motion for pre-trial discovery and the defendant filed a response. Although the defendant did not file a motion for discovery, the State filed an "Answer to Discovery."

At trial, the State presented the testimony of the arresting police officers, Robert Grapenthien and John Rawski. Both officers testified that they were riding in an unmarked squad car on December 26, 1988, at about 9:00 p.m. They first saw the defendant as he crossed the 2700 block of Monroe Street going from north to south in a slightly easterly direction. The street lights were in working order. The defendant, who was approximately 150 feet away, was the only person on the street. Several cars were parked on both sides of the street. Both officers testified that, when the defendant was approximately 50 feet from them, they noticed that he was carrying a gray paper bag in his right hand. They further testified that, after the defendant glanced over his right shoulder and saw them, he dropped the bag on the snow by the curb and walked away. The officers were almost adjacent to the defendant, approximately 10 feet away, when he dropped the bag. They stopped their vehicle and exited it.

Officer Grapenthien testified that he walked over to the bag, inspected its contents and saw two clear bags of white powder inside. He believed that the bags contained cocaine and yelled to Officer Rawski to arrest the defendant. Officer Grapenthien stated that, incident to the arrest, they conducted a search of the defendant and found a set of Nissan car keys in defendant's possession. Grapenthien and Rawski testified that the keys were found to fit a Nissan Pathfinder automobile parked directly adjacent to where the defendant was arrested. After the defendant was transported to the police station, a custodial search was conducted and $1,180 in U.S. currency was recovered from his person. The denominations of the currency were: eight $50 bills; twenty-five $20 bills; twenty-two $10 bills and twelve $5 bills.

Officer Rawski testified that, after the defendant was handcuffed and searched and the car keys were discovered, the defendant was asked where his car was parked. According to Rawski, the defendant denied having a car in the area. (Defendant's statement to the police was not disclosed in the police reports previously tendered to the defendant nor was it disclosed in the State's "Answer to Discovery.") Defense counsel objected to the admission of defendant's statement regarding his car into evidence, alleging Miranda and discovery violations, and moved for a mistrial. The trial court denied the motion for mistrial, warned the prosecutors not to make any further reference to the defendant's statement and admonished the jury to disregard any testimony relating to the alleged statement. Defense counsel renewed his motion for mistrial at the conclusion of Officer Rawski's testimony. The trial court again denied the motion finding that defendant's statement regarding the car was "inconsequential" to the issue of his commission of the crime charged and that the jury had been admonished to disregard any testimony regarding defendant's statement to the police. It was the court's opinion, based on his observation of the jury, that they complied with the admonishment.

Officer Rawski further testified that in December of 1988 an average gram of cocaine sold for $142 a gram. He stated that cocaine was generally sold on the street in quantities of a tenth of a gram up to a gram and that, prior to sale, it would be mixed with other substances. The percentage of cocaine in the mixture would be 10 to 50 percent.

Jose Mantilla, a chemist for the Chicago Police Department crime lab, identified the gray bag and two clear plastic bags and testified that the contents of the two plastic bags were tested. One bag, weighing 249.4 grams, was found to be 94 percent pure cocaine; and the second bag, weighing 250.8 grams, was found to be 96 percent pure cocaine.

Two defense witnesses, Ladell Jones and Debra Ellis, testified. Jones, a friend of the defendant, stated that he had been with the defendant for several hours prior to and until his arrest. As he and the defendant were leaving a party at 2728 West Monroe, they ran into another friend, Ellis. Jones stated that, when they left the party, the defendant was not carrying anything in his hands and that he never lost sight of the defendant. Jones further stated that as they entered the street, two unknown black males were present in the vicinity, one was nearby and the other was in the opposite direction. According to Jones, a police car came down the block at a high rate of speed and suddenly stopped in front of the defendant. One officer grabbed the defendant and put him in the police car while the other walked up and down the block and discovered the bag on the street.

Debra Ellis testified that she lived in the first floor apartment at 2728 West Monroe. She saw the defendant and Ladell Jones coming down the stairs and hugged the defendant. She stated that the defendant was not carrying any type of package and that she watched both men leave the building and cross the street. Ellis testified that she saw the police grab the defendant and begin to search the street. She stated that at no time was the bag the police recovered in the defendant's possession.

At the conclusion of the trial, the jury returned a verdict of guilty of possession of a controlled substance, more than 400 grams but less than 900 grams, with intent to deliver. Defense counsel moved for a new trial arguing that the defendant's statement to the police was taken in violation of defendant's Miranda rights and should have been suppressed. Defense counsel argued that he had been prevented from making a motion to suppress because, as a result of the State's discovery violation, he was unaware of defendant's statement. While noting that a discovery violation had occurred and that defendant's statement would have been suppressed, the trial court nevertheless denied the motion for new trial finding that defendant's statement was ...

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