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The People of the State of Illinois v. Ira Mullins

April 21, 2011

THE PEOPLE OF THE STATE OF ILLINOIS,
APPELLANT,
v.
IRA MULLINS,
APPELLEE.



The opinion of the court was delivered by: Justice Freeman

JUSTICE FREEMAN delivered the judgment of the court, with opinion.

Justice Burke concurred in the judgment and opinion.

Chief Justice Kilbride specially concurred, with opinion.

Justice Garman specially concurred, with opinion, joined by Justices Thomas, Karmeier, and Theis.

OPINION

After a jury trial, defendant, Ira Mullins, was convicted of possession of a controlled substance with intent to deliver (720 ILCS 570/401(d) (West 2004)), and sentenced to nine years in prison. The appellate court reversed and remanded for a new trial. We granted the State's petition for leave to appeal and now reverse the judgment of the appellate court.

BACKGROUND

Defendant was charged with possession of a controlled substance with intent to deliver (720 ILCS 570/401(d) (West 2005)). Prior to trial, defense counsel moved in limine to bar the State from using defendant's three prior felony narcotics convictions*fn1 as impeachment should he testify. In response, the State asked that the court "withhold judgment as to whether [the convictions are] more prejudicial than probative if and when the defendant does actually testify." The court agreed, ruling it would reserve its decision.

At trial, Chicago police officer Matt McGrory testified that at about 11 p.m. on February 1, 2005, he and his partner, Jeffrey Zwit, were part of a narcotics surveillance operation near the 4500 block of West Washington Boulevard, an area known for narcotics transactions. McGrory was stationed on the rooftop of a three-flat residence at 4451 West Washington Boulevard, while the other officers waited in two marked squad cars about a block away. Using binoculars, McGrory observed defendant standing alone on the sidewalk in front of 4506 West Washington Boulevard, a residence with a wire fence encircling the front of the property. The area in which defendant was standing was "well-lit" by street lights, and he was approximately 10 feet away from one of these lights.

McGrory observed a man approach defendant and engage him in brief conversation. The man then handed defendant an item which defendant shoved into his pants pocket. Based upon the size and tint of the paper, McGrory believed defendant had accepted money, but he could not discern the denomination of the bills. Defendant walked over to a nearby metal fence post and retrieved an unknown object from inside that post. Defendant then gave the object to the man who had given him the money. Although McGrory could not exactly determine what the item was, he saw it was the size of a coin. The other person then left on foot. This same series of events occurred twice more, within the span of a few minutes. Based upon his experience and training, McGrory believed he was observing illegal narcotics transactions.

McGrory conducted this surveillance for approximately 30 minutes, during which time he was in contact with Zwit and the backup officers by two-way radio. After witnessing the third transaction, McGrory gave his colleagues a description of defendant and asked that they approach and detain him. McGrory maintained his surveillance as the other officers drove to defendant's location. While the two backup officers detained defendant, McGrory directed Zwit via the police radio to the fence post from which defendant had retrieved the objects. After he observed Zwit recover items from the post, McGrory joined the others at the scene, where defendant was arrested. McGrory testified that during the surveillance period, defendant had no bags or suitcases with him. In addition, McGrory never saw defendant walk into 4506 West Washington Boulevard and never saw anyone come out of that house.

McGrory and Zwit transported defendant to the police station, where Zwit showed McGrory the plastic bag he had retrieved from the fence post. The bag contained three tinfoil packets of white powder. McGrory then processed defendant and asked for his address. Defendant stated that he resided at 210 North Central in Chicago.

On cross-examination, McGrory was asked why his written arrest report failed to include several facts to which he testified during direct examination: that he used binoculars during the surveillance operation; that the fence post had no cap; that defendant stood 10 feet away from the street light; and that defendant placed something in his pocket after every transaction. McGrory acknowledged that he did not include these specific facts, but explained that the purpose of the written report is to summarize the incident and, therefore, not every fact is included.

Officer Zwit's testimony largely mirrored that of McGrory regarding the initiation and execution of the surveillance operation. Zwit additionally testified that he and the two backup officers did not personally witness the three transactions, because they were stationed around the corner waiting for McGrory to give the signal to move to the scene. When they did, McGrory directed him to look inside the fence post, which was hollow. Zwit found a plastic bag inside the post that contained three tinfoil packets of white powder suspected to be heroin. The plastic bag was held up inside the post by "random garbage," including chip bags and other debris. From his experience with narcotics investigations, Zwit recognized the tinfoil packets as those commonly used in the individual sale of heroin. The packets resembled items commonly referred to as "nickel" bags worth $5, in contrast to larger packets typically sold for $10. Zwit transported the three packets back to the station, where he inventoried them. Zwit also inventoried $18 in United States currency given to him by one of the backup surveillance officers who had recovered the money from defendant's pockets. The currency consisted of three $5 bills and three $1 bills. No narcotics were recovered from defendant's person.

Officer Almanza also took part in the surveillance operation, and his testimony corroborated that of McGrory and Zwit. Almanza additionally stated that, at the scene, he conducted a protective patdown of defendant and found nothing illegal. He did notice, however, that defendant had money in his pockets, which was retrieved during the later custodial search of defendant at the station. Almanza recovered $18 from defendant, consisting of three $5 bills and three $1 bills. Each individual bill was crumpled up and stuffed in defendant's pockets. According to Almanza, "[u]sually what happens in narcotics when we *** arrest people, they just grab money from the buyer and they just shove it into their pocket immediately."

Dr. Monica Kinslow, a forensic chemist employed by the Illinois State Police, testified that she tested the substance in the foil packets retrieved from the fence post and determined it was heroin. She further determined that the weight for one packet was 0.1 grams, and, therefore, that the total weight of the three packets was 0.3 grams. The State then rested.

After the trial court denied defendant's motion for a directed verdict, defendant called Trenton Grayer to testify on his behalf. Grayer was 15 years old at the time of trial, and 14 at the time of this incident. Grayer was a "good friend" of defendant and knew him for approximately three years as a result of working together at a Chicago car wash. Grayer sometimes saw defendant socially on the weekends, but they had not been to each other's homes. Grayer did not have defendant's phone number, but defendant had his.

Grayer stated that on February 1, 2005, defendant called Chiquita Chambers--another co-worker from the car wash--and said he was returning to Chicago from Detroit. Grayer could not recall if February 1 was a weekday or weekend, nor whether he had attended school that day. Grayer accompanied Chambers in her car to pick defendant up at a bus station in downtown Chicago at around 8:15 p.m.

Defendant got in the back of Chambers' car with his bags, and the trio returned to Chicago's west side, where they "just drove around" and talked for about two to three hours. According to Grayer, the group had no specific destination and they made no stops during that period.

Eventually, Chambers became tired, and defendant asked to be driven to a hotel. Grayer could not remember the hotel's name, but recalled that it was on West Washington Boulevard. When they arrived, defendant asked Chambers for money, and she gave defendant $12, in the form of one $10 bill and two $1 bills. Defendant got out of the car with his bags, and Grayer and Chambers drove away. Grayer stated they dropped defendant off at the hotel at 11:15 p.m., and that he knew the exact time because he looked at a cell phone. Grayer did not see defendant enter the hotel and did not know where defendant went after he left the car. Chambers and Grayer were a few blocks away from the hotel when defendant called Chambers to tell her he did not have enough money to rent a room. Chambers and Grayer drove back to the hotel, but they did not see defendant or anyone else on the street. When asked how long it was after they dropped defendant off that they returned to the hotel, Grayer responded "ten, fifteen, maybe five [minutes], I really don't know." The pair neither went into the hotel to look for defendant, nor called him on his phone. Instead, they left.

Defendant testified that he was 27 years old and worked at a Chicago car wash with both Grayer and Chambers for between three and four years. On February 1, he returned to Chicago from Detroit, where he had lived for nearly one year with his fianceee and son. When Grayer and Chambers picked him up at the bus station, he had between $25 and $30 in cash, and offered to buy something to drink at a liquor store. Defendant spent $20 on a pint of liquor, and he and Chambers "drank a little bit" while the trio "rode around" for between 2 and 21/2 hours. During this period, the group stopped at various times so that defendant could visit several people, including his god brother and a few other friends.

At about 11:10 p.m., Chambers told defendant she was tired of driving, and he asked her to drop him off at a hotel near the 4500 block of West Washington Boulevard. He also asked her for money, and she gave him $12, after which he had a total of $18 cash. Defendant stated he did not know the denomination of the bills Chambers gave him. He then went into the hotel and asked to rent a room for four hours. Defendant decided to stay for only that short period because "it was already late that night," even though he was "not sure" where he would have gone after leaving the hotel. Defendant was told the room cost $24, plus an additional $3 deposit for the room key. Because he was short of money, he called Chambers to ask for more. She agreed and stated she would drive back to meet him.

Defendant left the hotel at 11:20 p.m.; he stated he knew the precise time because he had looked at his watch. As he stood on the sidewalk, he saw his friend "West" come out of 4506 West Washington, which was across the street. Defendant knew this person only as "West" and was not aware of his full name. Defendant was surprised to see West, whom he last saw in 1999. West beckoned defendant across the street, and then asked him what he was doing because he saw him with his luggage. Defendant told West he was trying to rent a room at the hotel, and West invited him to stay at his house. West then asked defendant if he was too intoxicated to drink, and defendant said no. Defendant and West spoke outside for three to five minutes before West took defendant's luggage into the house, and told him he would return with money to go to the liquor store.

While defendant was waiting for West in the yard in front of 4506 West Washington, the police pulled up in two cars, told him to "come here," and, when he did, they searched him and asked "where the guns and drugs were." Defendant was then handcuffed, placed in a squad car, and taken to the police station. Defendant denied selling drugs.

Defendant stated that he had tried to find West so that he could testify for him at trial, but West was "locked up" and defendant could not locate him. Defendant also stated that Chambers was unable to testify on his behalf because she had missed work to come to court the prior day, and could not miss work again.

On cross-examination, defendant stated for the first time that West came out on the porch of his house while defendant was being arrested, and that police "told him to get back into the house." Defendant also offered on cross-examination that he "started to get smart" with the officers when they repeatedly asked him the same questions. Defendant then rested.

At the conclusion of testimony, a side bar was held outside the presence of the jury regarding the court's deferred ruling on defendant's motion in limine to bar use for impeachment purposes of his three prior felony convictions for possession of a controlled substance with intent to deliver. After both parties presented arguments regarding the probative value and prejudicial effects of the prior convictions, the court admitted defendant's 2001 conviction for possession of a controlled substance with intent to deliver and barred introduction of defendant's two earlier convictions. The parties agreed to present this information to the jury by stipulation during the State's rebuttal case. Immediately after the side bar, the prosecutor read the following stipulation to the jury: "It is hereby stipulated by and between the parties that [defendant] has been convicted of possession of a controlled substance with intent to deliver under Case Number 01 CR 12360."

The State then recalled Officer Almanza. He testified that at the time defendant was placed under arrest, no one ...


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