The opinion of the court was delivered by: Justice Gordon Delivered The Opinion OF The Court:
APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY.
HONORABLE JUDGE L. WILLIAM SHULTZ, PRESIDING.
The defendant, Misael Garcia, was convicted by a jury of armed violence (720 ILCS 5/33A-2 (West 1992)) and possession of a controlled substance with intent to deliver (720 ILCS 570/401(a)(2)(A) (West 1992)). He was sentenced to ten years' imprisonment for each offense to be served concurrently. On appeal the defendant contends that the trial court erred in denying his motion to quash his arrest and suppress evidence; that he was not proved guilty beyond a reasonable doubt; and that the trial court abused its discretion in sentencing him. For the reasons discussed below, we affirm defendant's conviction but vacate and modify his sentence.
The evidence presented by the State at the hearing on the motion to suppress showed that on October 5, 1993, at approximately 8:30 p.m., Chicago Police Officers Paul Paulin and William Martinez were driving eastbound on West Beach Road in an unmarked police car. Officer Paulin saw Jose Zacharias, from about twenty or thirty feet away, standing on the front porch of 1624 West Beach, drinking a bottle of Corona beer. Paulin, who had arrested Zacharias the day before, knew that Zacharias was 16 years old and did not live at that address. Paulin and Martinez exited the police car, walked up the stairs of the porch, and arrested Zacharias for underage drinking. While handcuffing Zacharias on the porch, Paulin looked through the glass storm door (the front door was open) into the house and saw the defendant and co-defendant Charles Alvarez sitting in the kitchen, which was approximately fifteen or twenty feet from the storm door, at a table upon which a scale and handgun lay. He saw the defendant place a package of white powder onto the scale and saw Alvarez take the package off the scale. The officers entered the house through the unlocked storm door, and defendant fled through the back door. Upon entering the house, Martinez saw three additional individuals sitting in the living room. The officers arrested Alvarez and recovered a Browning nine millimeter revolver, and several plastic bags containing cocaine. Garcia was arrested by Officer Paulin several days later.
At trial, Officer Paulin gave testimony that was substantially similar to that which he gave at the hearing on the motion to suppress. In addition, he testified at trial that at the time he recognized Zacharias as the person on the porch at 1624 West Beach there was no outside light on the porch; light was illuminating from inside the house and from the street light. Paulin testified that, after arresting Zacharias, he looked inside the house for his own protection because the wooden door was open and lights were on inside. He stated that he recognized the defendant before the defendant exited through the back door and did not give chase because he would have had to pass the three men in the living room as well as Alvarez who had access to the gun on the table. Paulin's main concern as he entered the house was to secure the handgun on the table where the defendant and Alvarez had been sitting. Paulin described the items recovered from the kitchen table as: one plastic bag containing two rocks, a smaller bag containing loose cocaine, five smaller bags containing rock cocaine, a Browning nine millimeter revolver with twelve live rounds in the clip, two scales, and defendant's Mexican passport, birth certificate and "various ID's."
Daniel Wolberg of the Chicago Police Department crime lab testified that the total weight of all of the items in the evidence bag was 58.6 grams. The largest single item weighed 35.27 grams. Wolberg tested the latter sample and determined that it was cocaine. He did not test any of the other items for the presence of cocaine or any other controlled substance. Wolberg retested the sample because the original chemist who handled the case was on maternity leave. That chemist's report showed that she tested the items and conducted two batteries of tests which showed that the items tested positive for cocaine.
Karen Morrissette of the Chicago Police Department, who was qualified as an expert to testify regarding personal use and transactional use of narcotics, opined that a "user" generally purchased a quarter to one gram of cocaine. In her opinion, a person having 35.27 grams or 58.6 grams of cocaine would be a dealer.
In defense, defendant's mother, Ramona Garcia, testified through an interpreter, that the defendant was with her at her home at 1621 West Beach on October 5, 1993 from 7:00 p.m. to 10:00 p.m. The defendant was present the entire time and was celebrating his birthday with his mother and siblings. The defendant's mother lived across the street from the defendant.
Francisco Romo testified that he had been invited by the defendant to come over to the defendant's house at 1624 West Beach on October 5, 1993 to watch the World Series baseball game. When he arrived there between 8:00 and 8:30 p.m. with his brother, George, and his uncle, Nick, the defendant was not present. A "kid" opened the door for them. At about 8:30 p.m., while the three men were seated in the living room watching the baseball game, the "kid" went to throw out the garbage. A police officer, who was holding the "kid" and pointing a gun at his side, knocked on the door, which was closed, and told them to open it. Romo's brother, George, opened the door. Romo testified that he could see the officer through the small window at the top of the door as he was seated on the couch. Romo testified that the officers searched the entire house after telling them to be still and sit on the floor. Romo testified that when the officers arrived, the defendant was not at home, no one was seated at the kitchen table and there was nothing on the table. He testified that he did not know co-defendant Alvarez and had never talked to him. Romo recalled speaking to an investigator from the State's Attorney's Office but denied telling him that the defendant and another person were present at 1624 West Beach but left to buy beer. He also denied telling the investigator that the defendant invited him over at about 8:10 or 8:30 p.m. or that Romo was with his brother when that invitation was made.
The defendant testified that prior to October 5, 1993 he had been arrested by Officer Paulin on a misdemeanor charge. He stated that October 5 was his birthday and that on October 5, 1993 he lived at 1624 West Beach. He stated that he was not present in his home on the evening of October 5, 1993 when the officers came to his house. He stated that he left his house at approximately 6:30 p.m. to go to his mother's house. Jose Zacharias was in his house at that time and defendant told Zacharias that some friends would be coming over. Sometime between 6:30 p.m. and 7:00 p.m. the defendant asked Romo to come over in about an hour to watch the World Series. The defendant stated that he was at his mother's between 7:00 p.m. and 10:00 p.m. even though he had invited Romo to watch the World Series at his house.
The defendant testified that he was arrested on the charges that were the subject of the instant proceedings on October 15, 1993 when he went to court on the earlier disorderly conduct charge. He stated that the police did not arrest him at his home although he had been present there prior to his October 15 court appearance. The defendant denied having any knowledge of ownership of the gun and the cocaine that had been recovered from his house. He also denied knowing co-defendant Alvarez, although he testified that he had seen Alvarez in the neighborhood and had spoken with him. He also testified that when he left his house on the evening of October 5, 1993, his identification cards and passport were upstairs in a dresser drawer in his room.
Jorge Varzenas testified that on October 5, 1993, he lived at 1633 West Beach, across the street from the defendant. At approximately 8:30 p.m., he was in front of his house with his children. He saw some plainclothed police officers walking around in front of and going in and out of defendant's house. Varzenas saw an officer, who he believed to be Paulin, exit the house and call to co-defendant Alvarez who was walking westbound on Beach with three girls. Alvarez was taken inside the house and, when he came out, was handcuffed. Varzenas also testified that he lived at 1633 West Beach for three years and during that time had never seen Alvarez and the defendant together. Varzenas admitted to talking to an investigator from the State's Attorney's Office but denied telling him that he had seen the defendant and Alvarez together on occasion.
Fabiola Lopez testified that she was with Charles Alvarez, Justinia Gomez and Lupe Lopez at approximately 8:30 p.m. on October 5, 1993. They were walking westbound on the 1600 block of West Beach. Lopez testified that a Hispanic officer, who was standing behind a gate at 1624 West Beach, called Alvarez over, grabbed him and arrested him. Lopez recognized the Hispanic officer, having previously seen him in the neighborhood. She stated that she had been with Alvarez for approximately twenty minutes prior to his arrest. She also testified that she knew the defendant and that she had not seen him on the evening of October 5, 1993. Lopez acknowledged that she was interviewed by an investigator from the State's Attorney's Office. She denied telling that person that she saw the defendant on Beach Street on the evening of October 5, 1993; that he told her he was going home to get a sweater; and that he was arrested when he walked up to the front door of his house. She also denied telling the investigator that she had not seen Alvarez on October 5, 1993.
In rebuttal, Harvey Carpenter, an investigator for the Investigation Bureau of the Cook County State's Attorney's Office. He testified that he interviewed Frank Romo on July 25, 1995. Romo told him that the defendant came to his house between 8:10 and 8:35 p.m. to invite him and his brother, George, over to watch the baseball game. Romo also stated that the defendant was present when they went ...