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People v. Cunningham

September 13, 2002

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
BRIAN CUNNINGHAM, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. No. 99 CR 1730 Honorable Sharon M. Sullivan, Judge Presiding.

The opinion of the court was delivered by: Justice Reid

UNPUBLISHED

Following a bench trial, the defendant, Brian Cunningham, was found guilty of possession of a controlled substance and sentenced to 30 months' probation. On appeal, Cunningham argues that the State failed to prove his guilt beyond a reasonable doubt. Specifically, Cunningham claims the testimony of the arresting officer was so unlikely and improbable that it was unworthy of belief and raised a reasonable doubt of his guilt.

For the reasons that follow, we reverse the decision of the trial court.

THE FACTS

Cunningham was charged with unlawful possession of a controlled substance with intent to deliver in connection with an incident that occurred in the early morning hours of December 15, 1998, on the northwest side of Chicago, Illinois.

At trial, Chicago police officer David Pfest was the sole witness. On direct examination, Officer Pfest testified that on December 15, 1998, at approximately 12:30 a.m., he was working as a tactical officer in the vicinity of 3800 North Elston Avenue. At that time, he was approached by an unidentified citizen. This person told him a man named "Gumby" was selling narcotics from his car and provided the cell phone number where "Gumby" could be reached.

Officer Pfest telephoned the number and a woman answered. He told her that he needed an "eight ball," the term used in the drug trade for one-eighth of an ounce of cocaine. She then asked if he was "Kevin from Elston by Leona's." Officer Pfest answered that he was and she told him that Gumby was not there, but to call back exactly 15 minutes later.

Officer Pfest did so, and this time a man responded to his call. When the officer asked for Gumby, the man asked what he needed. Officer Pfest repeated his cocaine request, and the man told him he needed 15 minutes to go home and get it. The man said he would sound the horn of his car when he arrived at the location on Elston near Leona's Restaurants (Leona's).

Approximately 15 minutes later, a station wagon drove up there and the horn sounded. Officer Pfest radioed the other members of his team, then approached the vehicle. He observed that Cunningham was the driver with two female passengers. When Officer Pfest got to within four feet of Cunningham, he saw a plastic bag containing a "yellowish white substance" in defendant's hand. When Cunningham looked at Officer Pfest, his eyes widened, and after he looked toward the approaching police cars, he threw the bag to the floor of the car. Officer Pfest ordered Cunningham out of the vehicle and another officer recovered the bag of suspect cocaine. The bag was inventoried and sent to the laboratory for analysis. The parties later stipulated that the material in the bag tested positive for 2.9 grams of cocaine.

During cross-examination, Officer Pfest stated he was working in plainclothes. When the citizen approached him, he and his partner were in a vehicle. However, Officer Pfest could not remember which partner he was with. Officer Pfest testified that the citizen flagged down his car in basically the same area where the arrest took place.

Officer Pfest testified that when the citizen approached him, the citizen said, "here is a telephone number, call this number, ask for Gumby and you can order narcotics." When asked to describe the citizen, Officer Pfest said that he was a white male who was in his late twenties to early thirties. When asked how the citizen was dressed, Officer Pfest testified, "I don't recall, I know he had probably blue jeans and just a T-shirt on."

Officer Pfest did not include a description of the citizen in his police report. Officer Pfest could not recall if he asked the citizen where he got the telephone number. When asked if he questioned the citizen at all, Officer Pfest responded, "I believe I did, there was a conversation with the subject." Officer Pfest was then asked if he memorialized the conversation he had with the citizen. He responded, "other than what is in the report, no." He was then asked, "[the] report just says, citizen gave you this number and [said to] call it, you can order narcotics?" Officer Pfest said, "[b]asically, yes." However, the record reveals that there is absolutely no reference to an unidentified citizen anywhere in his police report.

Officer Pfest did not ask this person to participate in the investigation that followed. After giving the information, the citizen walked away. Officer Pfest further related that he conferred with his surveillance team before he called the number provided by the citizen. When asked, "where did you make the call from physically?" Officer Pfest said, "I believe it was on the cell ...


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