Appeal from Circuit Court of Schuyler County No. 00CF61; No. 00CF40; No. 00CF37; No. 00CF60; No. 00CF58 Honorable Alesia A. McMillen, Judge Presiding.
The opinion of the court was delivered by: Justice Cook
This appeal involves five cases consolidated for the purpose of appeal. The relevant defendants, James Patrick Daly, Jon P. Umphryes, Tracy M. Thompson, David J. Wickert, and Lewis E. Jones, appeal the final orders of the Schuyler County circuit court convicting defendants of charges resulting from undercover drug buys accomplished by Schuyler County confidential informant Brian K. Jockisch. Similar issues are presented by the five cases. We focus on the first case, involving defendant Daly.
Prior to August 1999, Brian Jockisch was a paid informant in Fulton and McDonough Counties. Jockisch made his living as a paid informant. In August 1999, Jockisch was charged, in Schuyler County, with unlawful possession of cannabis, a misdemeanor, and illegal harvesting of ginseng without a license. Attorney John Endres was appointed to represent Jockisch on those charges. On December 6, 1999, the charges were dismissed; four days later, Jockisch signed a written employment agreement with Schuyler County officials to make undercover drug buys. Under that agreement Jockisch made buys at least between December 28, 1999, and August 4, 2000.
In February 2000, domestic battery charges were filed against Jockisch in Brown County. Endres represented Jockisch on those charges as well. On July 7, 2000, Jockisch's domestic battery charges were dismissed.
On June 14, 2000, Jockisch's van was stopped in Brown County and cannabis was discovered, but the officer did not arrest Jockisch after learning that he was a paid informant for Schuyler County.
Jockisch testified that he purchased cocaine from defendant Daly in a controlled sale on July 24, 2000. The substance Jockisch gave to police tested inconclusive for controlled substances. Jockisch testified that he purchased cocaine from defendant in a second controlled sale on August 2, 2000. That substance tested positive for cocaine. Jockisch testified he purchased cocaine from defendant in a third controlled sale on August 4, 2000. The substance tested positive for cocaine.
On November 28, 2000, defendant Daly was charged with two counts of unlawful delivery of a controlled substance (720 ILCS 570/401(c) (West 2000)) and one count of unlawful distribution of a look-alike substance (720 ILCS 570/404(b) (West 2000)). Attorney Endres was appointed to represent defendant.
The State filed a motion in limine to bar evidence of Jockisch's misconduct, stating it was unaware of any conviction for a felony or a crime involving dishonesty or false statement in the past 10 years. In response to the State's motion, Endres filed an offer of proof, reciting that the Schuyler County charges against Jockisch were dismissed December 6, 1999, and that within days of the dismissal--if not earlier--Jockisch started purchasing drugs for the Schuyler County sheriff's office. The offer of proof also stated that Endres was advised by the Brown County sheriff's office that Jockisch was doing some work for Brown County police and not to worry about the domestic battery charge, which was then dismissed.
During the hearing on the motion in limine, the former Schuyler County State's Attorney denied that the charges he dismissed on December 9, 1999, were dismissed in exchange for an agreement for Jockisch to purchase drugs. The State's Attorney testified the charges were dismissed because (1) although an additional charge, a domestic violence charge, had been contemplated, Jockisch and his then-wife had reconciled; (2) Jockisch's family members asked for leniency; (3) one of Jockisch's family members was married to the State's Attorney's ex-wife, who interceded on Jockisch's behalf; (4) Jockisch's father may have had a permit to raise ginseng; and (5) because of Jockisch's "rather pathetic appearance," the State's Attorney felt sorry for him. In response to the court's questioning, however, the State's Attorney admitted that he and Endres had advised the court at various times that Jockisch was working for law enforcement in other counties, and the State's Attorney was considering dismissing the case as a result of that work. The State's Attorney finally conceded that the work Jockisch had done in other counties may have been a consideration in the December 9, 1999, dismissal. Endres then spoke of the work he had done as Jockisch's attorney. Endres stated that his memory was bad, that he may have known of Jockisch's work in other counties, but he had no knowledge of the Schuyler County agreement until about mid-2000.
The trial court determined that, with the closeness in times, the dismissal of the cases on December 6 and Jockisch's beginning to work for the Schuyler County sheriff's office on December 28 were "highly probative that, at least in Mr. Jockisch's mind, there was some kind of quid pro quo." The court concluded that Jockisch could be cross-examined about the connection between the cannabis dismissal on December 6, 1999, and the drug purchases, but not the Brown County dismissal of the domestic battery charges "unless you can tie up something specifically that there was a quid pro quo."
During his opening statement, the State's Attorney told the jury that Jockisch was a paid informant and may have possessed or used drugs. During the trial, Endres elicited testimony that the Schuyler County cannabis charge had been dismissed, but he did not introduce evidence that the dismissal was the result of an informant deal between law enforcement and Jockisch. Endres also elicited testimony regarding the Brown County cannabis incident, but again made no connection between the officer's failure to arrest Jockisch and Jockisch's informant agreement. Nor did Endres impeach Jockisch with the financial arrangement made in Schuyler County, whereby police paid Jockisch for successfully buying drugs from local residents and for his "time to testify," but reimbursed him only for expenses if he failed to make a buy. Under the agreement, Jockisch had been paid $5,650 plus $3,050 in living expenses. Another person had testified that she had observed Jockisch using drugs in July and August 2000, but Endres failed to call her as a witness, stating that his calls to her "have not been answered, and I don't have her here. I'm sorry *** that's my fault."
On the evidence presented, the jury convicted defendant Daly on all charges. On June 4, 2001, the trial court sentenced him to 4 years' probation on the Class 1 felony unlawful delivery counts (counts II and II) and 30 months' probation, including 6 months' home confinement, on the Class 3 felony ...