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People v. Cunningham

December 22, 1999


Appeal from the Circuit Court of Cook County No. 96 CR 8808-01 Honorable William O. Maki, Judge Presiding.

The opinion of the court was delivered by: Justice Cahill

Defendant Kenneth Cunningham was convicted of two counts of possession of a controlled substance with intent to deliver, unlawful use of a weapon by a felon and possession of cannabis with intent to deliver. He was sentenced as a habitual criminal to natural life in prison. Defendant contends on appeal that: (1) he was not proved guilty beyond a reasonable doubt; (2) his trial counsel was ineffective for failing to seek a hearing under Franks v. Delaware, 438 U.S. 154, 155-56, 57 L. Ed. 2d 667, 672, 98 S. Ct. 2674, 2676 (1978); and (3) the agreed statements of fact and bystander's report are inadequate substitutes for a verbatim transcript and are insufficient to provide him with an adequate appellate review. We affirm.

Chicago police officer Joseph Keeter testified that, during the first two weeks of January 1996, police officers conducted surveillance of 1008 West 48th Street in Chicago because they believed defendant was selling drugs from his residence. Officer Keeter conducted surveillance at least five times but never saw defendant at that address.

On January 18, 1996, a confidential informant told Keeter that he had purchased cocaine that morning from defendant at defendant's home and had done so for the previous six months. At 11:35 a.m., Keeter obtained a search warrant for defendant and his residence.

On January 19, 1996, police officers surveilled Esther's Place, a tavern where they believed defendant to be. During their hour-long surveillance, the officers saw defendant twice leave Esther's with another person, walk out of sight, then return to the building. The officers approached the building and someone shouted, "It's a raid. It's a raid." Defendant was standing in front of the bar when the officers entered. Keeter arrested him, handcuffed him and performed a pat-down search, revealing $25.

Shirley Johnson, a bartender, testified for defendant that she never saw him leave the building. One or two officers took defendant into the bathroom, and when they returned, defendant's belt was unfastened, his shoes untied, and his shirt untucked.

Keeter testified that he and the other officers took defendant to the 48th Street address and used a key from defendant's pocket to enter the house. Cathy Butusov, defendant's 15-year-old son Brian Butusov, another juvenile, and two babies were in the house. The front bedroom door was locked and Cathy denied having a key. Keeter used another key on defendant's key ring to open the door. The officers found men's clothes in the bedroom closet and tools on the floor. They also discovered a plastic bag with 420.5 grams of cocaine, three scales, a mixing bowl, a box of ammunition, and defendant's inmate identification card. They found a bag with 26.67 grams of cannabis in the downstairs bedroom which Brian Butusov claimed belonged to him.

During a custodial search of defendant at the police station, officers found 78 packets of cocaine in his shoes and his Illinois driver's license with the 48th Street address. Keeter also testified that he had not seen defendant walking in an unusual manner.

Officer Linda Dixon testified that she accompanied Keeter and other officers in the surveillance of Esther's Place and execution of the search warrant of defendant and 1008 West 48th Street. Dixon's testimony was substantially similar to Keeter's testimony, but she did not testify that defendant twice left the bar with another person.

Cathy Butusov testified that defendant moved out of the house in October 1995 and took all of his belongings and clothes with him. He returned occasionally to see his children. Cathy testified that she was the only occupant of the front bedroom and that she, her son, daughter and possibly others had a key to the bedroom. She did not lock it on the morning of January 19, 1996, nor was she in the habit of locking it. When the police searched the house, the bedroom door was ajar and they did not use a key to enter.

A mail carrier testified that he delivered mail to defendant at the 48th Street address and that the mail had not been returned.

Defendant contends on appeal that he was not proved guilty beyond a reasonable doubt. He argues that the officers' testimony was conflicting and incredible and that the State failed to prove he had constructive possession of the drugs found at the 48th Street address.

We will not reverse the findings of the trier of fact if, when viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789 (1979). "A criminal conviction will not be set aside unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of the defendant's guilt." People v. Collins, 106 Ill. 2d 237, 261, 478 N.E.2d 267, 277 (1985). It is not the function of the reviewing court to retry the defendant. Collins, 106 Ill. 2d at 261.

Defendant argues that the officers' testimony about the cocaine found in his shoes was "conflicting" and "incredible." Defendant points to the differences in testimony between Officers Dixon and Keeter. He also notes that the officers' testimony conflicted with Shirley Johnson's testimony that defendant ...

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