Appeal from the Circuit Court of Kendall County. No. 02-CF-58 Honorable Leonard J. Wojtecki, Judge, Presiding.
The opinion of the court was delivered by: Justice McLAREN
Defendant, Phillip P. Ragusa, appeals his convictions of and sentences for unlawful possession with intent to deliver methylenadioxy-methamphetamine (MDMA) or ecstasy, and cannabis (720 ILCS 570/401(a)(7.5)(A)(ii) (West 2002); 720 ILCS 550/5(d) (West 2002)). We affirm in part, reverse in part, and remand.
The following facts are taken from the record. Defendant was charged with the following six counts: (I) unlawful possession with the intent to deliver more than 15 but less than 200 pills containing the controlled substance MDMA, commonly known as ecstasy (720 ILCS 570/401(a)(7.5)(A)(ii) (West 2002)); (II) unlawful possession of more than 15 but less than 200 pills containing MDMA (720 ILCS 570/402(a)(7.5)(A)(ii) (West 2002)); (III) unlawful possession with the intent to deliver 1 or more, but less than 15 grams of a substance containing cocaine (720 ILCS 570/401(c)(2) (West 2002)); (IV) unlawful possession of less than 15 grams of a substance containing cocaine (720 ILCS 570/402(c) (West 2002)); (V) unlawful possession with the intent to deliver more than 30 grams but not more than 500 grams of a substance containing cannabis (720 ILCS 550/5(d) (West 2002)); and (VI) unlawful possession of more than 30 grams but not more than 500 grams of a substance containing cannabis (720 ILCS 550/4(d) (West 2002)).
Before trial, defendant filed a motion to dismiss counts I and II of the indictment and to declare sections 401(a)(7.5)(A)(ii) and 402(a)(7.5)(A) of the Controlled Substances Act (720 ILCS 570/401(a)(7.5)(A)(ii), 402(a)(7.5)(A) (West 2002)) unconstitutional as violating the proportionate penalties clause of the Illinois Constitution. Ill. Const. 1970, art. I, §11. After a hearing on the motion, the trial court denied defendant's motion and declared the provisions constitutional.
Defendant also filed a motion to suppress statements he made to police while at the police station on the night he was arrested, February 23, 2002. At the hearing on the motion to suppress, Kendall County Cooperative Police Assistance Team (CPAT) officer Christopher Biggs testified that at about 4:40 p.m., he and his fellow CPAT officer Jason Flanders executed a search warrant for defendant and a home in Oswego. Biggs and Flanders encountered defendant in an upstairs bedroom in the Oswego home and took him into custody. Biggs immediately read defendant his Miranda rights and defendant indicated that he understood his rights and was willing to waive them. Defendant was taken to the Kendall County police station. In an interview room, Biggs read a preprinted waiver form and defendant initialed each line of the form.
Biggs testified that, before interviewing defendant at the police station, Biggs called and spoke with defendant's uncle, Naperville police officer Dan Ragusa, in defendant's presence. Dan asked to speak with defendant. After getting approval from the State's Attorney's office, Biggs called Dan again and gave the phone to defendant. Biggs and Flanders heard parts of the conversation between defendant and Dan. During the 10-minute phone call, Dan told defendant that the arrest was embarrassing to him and to defendant. Dan told defendant to be polite and cooperative. Defendant gave short one-word answers to Dan.
Biggs stated that he interviewed defendant after the phone call. Defendant spoke about the narcotics found at the Oswego home and "other deliveries or possible cooperation." Biggs told defendant that if defendant "wanted to do some work for us, that would be possible." Biggs wrote in his police report that defendant said he would cooperate if it would reduce his charges. Biggs had permission from an assistant State's Attorney to try to get defendant to work for the police in exchange for reduced charges. Defendant attempted to cooperate with the officers by arranging for purchases from alleged drug dealers. Defendant made phone calls to potential sellers while in the interview room with the officers, but was unsuccessful. Biggs did not make any promises to defendant and defendant never told Biggs that he did not want to give information. The interview ended at about 10 p.m.
Flanders corroborated Biggs's testimony. Flanders added that defendant was not cooperative during the first part of the interview and that Flanders believed that defendant was lying to the officers. However, at some point defendant became more cooperative. Defendant and the officers discussed defendant working off some of his charges. Defendant was told that he would be given consideration regarding his charges.
Dan Ragusa, testified that during his phone call with defendant he advised defendant to tell the truth and told defendant that if he cooperated with the police by making some drug buys for them, the Class X charge might be dropped.
Defendant testified that he did not recall being advised of his Miranda rights at the time of his arrest and could not see the faces of the officers who executed the search warrant and took him into custody because they were wearing ski masks. Defendant was taken to the Kendall County jail and handcuffed to a bench until he was taken to a holding cell. He told an officer that he did not "want to talk to the cops."
Defendant also stated that, while in the interview room, Biggs showed defendant the Miranda waiver form. Defendant initialed each line of the form but believed that his initials meant that he "could sit there and not have to say anything and, you know, don't have to talk to them." Defendant signed the form at Biggs's request. Defendant believed that, by signing the form, he was indicating that he had received and understood his rights, but not that he was giving them up. Defendant did not understand what the word "waiver" meant and did not ask the officers.
Defendant testified that he then spoke with Dan Ragusa on the phone. Dan told defendant that he was disappointed in defendant and then explained that the officers and Dan were working out a deal so that defendant could work off the charges or "at least reduce them down a little bit." Dan also told defendant that defendant's "best bet would be probably to cooperate with them and try to reduce [his] charges." Defendant respected police officers because his uncle was a police officer with the Naperville police department and his grandfather was a police captain in the Joliet police department.
Defendant stated that, after the phone call with his uncle, he did not cooperate with the police officers. Defendant decided to cooperate only after the officers "kept bringing up the fact that if [he] worked for them it will help [him] out a lot." Defendant trusted the officers because they arranged for him to talk to his uncle. Defendant would not have talked to the officers if they had not suggested that it was possible that the Class X charge could be reduced. Defendant thought about what the officers and his uncle had told him and then decided to ...