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People v. Probst

November 21, 2003


Appeal from Circuit Court of Jersey County No. 02CF6 Honorable Thomas G. Russell, Judge Presiding.

The opinion of the court was delivered by: Justice McCULLOUGH


On April 23, 2002, a jury convicted defendant, Dennis E. Probst, of unlawful delivery of cannabis (720 ILCS 550/5(d) (West 2002)). On May 20, 2002, the trial court sentenced him to five years' imprisonment. Defendant appeals, arguing (1) a per se conflict violated his right to counsel in that his attorney had previously represented the State's confidential informant in a criminal matter; (2) the trial court committed reversible error by refusing to properly instruct the jury on his theory of the case; and (3) defense counsel failed to object to admission of a lab report and accompanying affidavit despite lack of foundation, in violation of his constitutional right to confront his accusers, and thus constituted ineffective assistance of counsel. We affirm.

Lieutenant Frank Scoggins, police officer for the City of Jerseyville police department (department), testified that he had participated in an ongoing investigation of the house at 711 South Arch Street in Jerseyville, home to defendant and Debbie White. Neighbors had complained about the amount of traffic in and out of the residence. The investigation did not produce any reliable informants until the local drug task force provided Danny Moore.

Moore wanted help getting a couple of traffic tickets removed from his record. Moore contacted Investigator Kenny Kallal of the Illinois Drug Task Force. Moore informed Kallal that he knew someone who had cannabis and was willing to sell it. Moore had worked with Kallal previously as an informant on drug buys.

On January 15, 2002, Moore called White and asked her if she had any cannabis for sale. She indicated that she would have some the next day and that he should meet her in the parking lot of the local Wal-Mart because of police surveillance of the house shared by her and defendant.

On January 16, the department conducted an undercover operation to attempt a purchase of cannabis. Officers strip searched Moore and placed an audio surveillance device on his person. No money or drugs were found in the search. Officers then gave Moore $280 in marked money with which to make the purchase. Officers anticipated that the transaction would occur in the Wal-Mart parking lot. However, once Moore arrived at Wal-Mart, he called White, who indicated that the house was safe and that the transaction should instead occur there.

The audiotape of the transaction reflects the following. When White met Moore in the parking lot, she indicated to Moore that he should "come to the house." After Moore arrived at the house, he engaged in conversation with White and then proceeded to the bedroom, where he met defendant. Moore counted out the $280 for defendant and then inquired whether he could get another ounce for a friend. Defendant indicated that he was not sure and had to get to work.

Moore testified that after he gave the money to defendant, defendant gave him the bag of cannabis. Moore returned from the residence and produced 53.6 grams of plant material later identified as cannabis. Officers identified the substance as cannabis by smell and verified this finding by lab report and accompanying affidavit from the state crime lab.

Officers stopped White for a traffic violation after she left the residence and found the marked money in her purse. Officers later got a search warrant for the residence and arrested defendant. The search yielded a scale and a jar smelling of cannabis in a bedroom.

Moore had previously dated Angel White, White's daughter and defendant's stepdaughter. During that time, an incident occurred where defendant accused Moore of stealing $300. Moore acknowledged that he had been accused of the theft but stated that such accusations were never proved.

At the jury instruction conference, defendant offered a jury instruction on mistake of fact. That instruction provided that "[a] defendant's mistake as to a matter of fact is a defense if the mistake shows that the defendant did not have the knowledge necessary for the offense charged." His theory at trial was that he believed that the $280 in buy money was in fact an attempt at satisfaction for the $300 that Moore had allegedly stolen. Defendant denied delivering any cannabis. He testified that he was not paying attention to what Moore was saying to him. The trial court refused defendant's proffered instruction.

Before the State rested its case, it asked for admission of the lab report and accompanying affidavit identifying the substance seized as cannabis. Defense counsel did not object, and the court admitted the evidence.

On the day of trial, defense counsel notified the court that a potential conflict of interest existed in that he had previously represented the State's key witness and undercover informant, Danny Moore, at a sentencing hearing on a burglary conviction. The record states as follows:

"MR. PISTORIUS: *** During the lunch hour I checked with my office, *** the name Danny Moore wasn't something that stuck in my head. I'm usually good at remembering names, but when I looked further at it I noticed it was Danny Lee Moore and that name did kinda [sic] hit me so I checked with my secretaries and indeed I had handled a sentencing case only. It was a Calhoun County case that was a 98 case that Scott Schultz was handling and then when Scott became State's Attorney here then I took over Scott's files and in January of last year, *** I handled a resentencing to a Motion to Revoke and he was ultimately sent to the Department of Corrections. It just literally came to me during the lunch hour and then coincidentally Kevin from the State's Attorney's Office talked to Mr. Moore and he likewise brought it up today about 12:30 p.m. so we both came to that conclusion at the same time. I discussed this with my client about the prior representation, I haven't done anything for him since January of ...

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