Appeal from the Circuit Court of Cook County. No. 09 CR 21113 Honorable John T. Doody, Jr., Judge Presiding.
The opinion of the court was delivered by: Justice Howse
JUSTICE HOWSE delivered the judgment of the court, with opinion. Presiding Justice McBride concurred in the judgment and opinion. Justice Epstein specially concurred, with opinion.
¶ 1 A jury found defendant guilty of possession of 1.2 grams of heroin with intent to deliver and he was sentenced to 71/2 years in prison. On appeal, defendant contends that his conviction should be reversed because of a breakdown in the chain of custody of narcotics evidence used to sustain the conviction. Defendant also contends that the trial court erred when it denied his motion to compel disclosure of the surveillance location utilized to observe him engage in two narcotics transactions. Defendant finally contends that he was improperly assessed a $200 DNA Indexing fee.
¶ 2 In a pretrial motion and subsequent renewal of that motion, defense counsel moved the court to compel disclosure of the surveillance location of Officer Lawrence Olivares, who conducted surveillance of defendant on October 15, 2009 beginning at approximately 2:30 p.m. Each of two trial court judges presiding at different times over defendant's case heard argument on the motion, conducted in camera hearings with Olivares, and subsequently denied the motion.
After examining Olivares, Judge Mary Roberts concluded that since there was no issue of identification, the location would not be disclosed. Judge Thomas Doody concluded that the concern for officer and public safety outweighed defendant's interest in disclosure in this case, and also stated that defendant had the right to cross-examine Olivares on the weather conditions, lighting, distance, elevation, and obstructions.
¶ 3 At trial, Olivares testified that on October 15, 2009, at approximately 2:30 p.m., he set up a narcotics surveillance in the area of Roosevelt and Whipple, a known narcotics area from which he had made previous arrests, along with Officer Mata and Sergeant Blas. He was the surveillance officer while Mata and Blas were the enforcement officers. Olivares conducted the surveillance from a covert vehicle, from which he observed defendant standing in front of a liquor store located at 3034 West Roosevelt Road, at the intersection of Roosevelt and Whipple. Defendant walked back and forth in front of the liquor store, but he never left the corner of Roosevelt and Whipple.
¶ 4 Olivares testified about the weather and traffic conditions, explaining that Roosevelt is a busy street with four lanes of traffic and that there was moderate vehicular and foot traffic. He testified that it was a clear day and nothing obstructed his view. Olivares was approximately 150 to 200 feet away from defendant, on ground level while in his vehicle. He used binoculars to observe defendant, and at different times during the surveillance, Olivares had both a frontal view and side view of defendant. Defendant was wearing a black skull cap, a black jacket with gray sleeves, and blue jeans. Olivares had never seen defendant prior to this date.
¶ 5 Approximately five minutes after Olivares began his surveillance, he observed an unknown African-American man approach defendant and give defendant an unknown amount of cash, and then the two men walked across Roosevelt to Douglas Park, where defendant reached up into a small tree and removed a plastic bag, removed an item from the bag, and gave it to the man. Defendant then placed the plastic bag back in the tree. There was a blue recycling bin next to the tree. When they crossed the street, the two men were approximately 50 feet closer to Olivares. After giving the item to the unknown man, defendant walked back across Roosevelt to the liquor store. Olivares could not see what was in the plastic bag.
¶ 6 Olivares continued his surveillance. Approximately 15 minutes later, another unknown African-American man approached defendant. The two men crossed Roosevelt, the unknown man gave defendant an unknown amount of cash, and defendant reached up into the same tree and grabbed the plastic bag, removed an item from it, and gave it to the unknown man. Defendant then put the plastic bag back into the tree and the man walked away. Defendant walked back to the liquor store. Olivares could not see what the item was that defendant gave to the man. Based upon his experience, Olivares believed defendant to have engaged in two narcotics transactions.
¶ 7 Olivares radioed to Blas and Mata and described defendant as "a male black with a black skull cap, black jacket and gray sleeves, blue jeans," and told them defendant was standing by the liquor store on Roosevelt and Whipple. Olivares remained in radio contact with Blas and Mata until they detained defendant, and Olivares confirmed they had the correct person. Olivares then directed Blas to the suspected narcotics. Blas crossed Roosevelt, went to the tree next to the blue recycling bin, reached up and removed the plastic bag. Blas notified Olivares that the bag contained suspected narcotics.
¶ 8 Although Olivares acknowledged that he momentarily lost sight of defendant when a big truck drove by, Olivares testified that he never lost sight of defendant or the tree. Aside from Blas and defendant, no one else went to the immediate area of the tree or touched the plastic bag or tree. Olivares could not testify to the specific location of the tree that defendant went to on October 15, 2009, because People's Exhibit 3, a photograph of the area where the tree was located, did not have the blue recycling bin in the photograph. Olivares did not take photographs or a video recording of the surveillance because he was engaged in a short-term, daily investigation, whereas video and photographs are normally taken for long-term conspiracy investigations.
¶ 9 Olivares wrote the arrest report and the case report, and in both reports he indicated that four Ziploc bags were recovered. He learned this number was incorrect when the crime lab informed him that five Ziploc bags were inside the sandwich bag.
¶ 10 During cross-examination of Olivares, defense counsel elicited that Olivares was in the vicinity of Douglas Park, that cars were parked along Roosevelt, and that Olivares lost sight of defendant when trucks passed. Olivares could not see what items were exchanged between defendant and the two unknown African American men who approached him. He did not indicate on his original case incident report that the bags had any color or prints, and he estimated the weight of the suspect heroin to be 0.4 grams, with an estimated street value of $60. On ...