Court of Appeals of Illinois, First District, First Division
Appeal from the Circuit Court of Cook County. No. 07 CR 10704 Honorable Luciano Panici, Judge Presiding.
JUSTICE DELORT delivered the judgment of the court, with opinion. Justices Hoffman and Cunningham concurred in the judgment and opinion
¶ 1 After a jury trial, Terrill Chambers was found guilty of armed violence and possession of a controlled substance with intent to deliver and sentenced to consecutive respective terms of 25 and 45 years' imprisonment. In this appeal, he contends that the court erred in denying his motion for a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978), and that the sentences imposed by the circuit court are excessive.
¶ 2 On April 19, 2007, a warrant issued to search defendant, the premises located at 15227 Parkside in Markham, Illinois, and any safe or lockbox found therein and to seize cannabis, items used in the manufacture, distribution and possession of cannabis, proof of residency, United States currency, and firearms and ammunition. The warrant was issued on a complaint signed and sworn to before the issuing judge by Markham police officer Tony DeBois and "John Doe, " a confidential informant.
¶ 3 In the complaint, Officer DeBois averred the following facts. He stated he had been a police officer for 11 years and was assigned to the tactical gang and narcotics unit. About 4:30 p.m. on April 18, 2007, he pulled over a vehicle near 15110 Cherry Street, in which the confidential informant, whom the officer had known for one year and who had previously assisted him in other narcotics cases, was riding. The officer detained him and his two companions who were also in the vehicle. The informant told the officer that about 4 p.m., he had purchased cannabis from defendant inside defendant's home at 15227 Parkside in Markham, and that defendant had also shown him a black handgun that he kept under a couch cushion. The officer transported the informant and his two companions to the police station, where the substance the informant had ostensibly purchased from defendant field-tested positive for cannabis, and the informant identified and signed a mugshot photograph of defendant. Officer DeBois further averred that he had previously received numerous calls about cannabis being sold from 15227 Parkside by defendant.
¶ 4 A team of officers from the Illinois State Police, the Markham police department and the Cook County sheriff's police executed the search warrant at 15227 Parkside in Markham on April 19, 2007. Defendant was the only person inside the residence at the time. In the ensuing search, officers recovered two bags of cocaine weighing 1005.6 and 712.8 grams, about $52, 000 in cash, and jewelry for which the corresponding sales receipts totaled nearly $69, 000. Police also found an AK-47 assault rifle, a Taurus .40-caliber handgun, a Glock .40-caliber pistol with an extended 29-round magazine, a .22-caliber rifle, a .410-gauge shotgun, a 12-gauge semiautomatic shotgun, a .45-caliber semiautomatic rifle, and a small bluesteel revolver. These materials provided the basis for the multiple-count indictment against defendant. Before trial, defendant filed a "Motion for a 'Franks' hearing in order to quash the search warrant and suppress evidence illegally seized, " and later, a "motion for judicial notice, " arguing that Officer DeBois and the informant committed perjury in the complaint for a search warrant. Defendant alleged, inter alia, that the address listed in the complaint for where Officer DeBois detained the informant, 15110 Cherry Street, did not exist in Markham. Defendant also contended that at the time the informant claimed to have been at 15277 Parkside purchasing cannabis from him, he had been at a different location.
¶ 5 In support of his motion, defendant submitted his own affidavit, in which he averred that he lived at 3031 Sherwood Avenue in Markham, and not at 15277 Parkside, where the search was conducted. He maintained that the Parkside address was owned by his mother and that he sometimes stayed there to oversee rehab work at the property. He also claimed that on April 18, 2007, he was at his home on Sherwood doing plumbing work with his stepfather, and he did not visit the residence on Parkside or sell any controlled substances to anyone at that address.
¶ 6 Defendant also submitted affidavits from his stepfather, mother, girlfriend and mother of his two children, and a family friend named Bennetta Eaton stating that they were at the Sherwood address on April 18, 2007, and that defendant was there working on plumbing with his stepfather.
¶ 7 On March 31, 2009, the trial court agreed to hold a hearing on defendant's Franks motion, but the case was assigned to a different judge at some point thereafter. On July 29, 2010, the State requested the court to reconsider the grant of a hearing on defendant's motion. The State argued that Franks was inapplicable because the informant had been brought before the issuing judge and that judge had the opportunity to assess the informant's credibility, demeanor and reliability. The State noted that the affidavit of Eaton, in which she claimed to have seen defendant at the Sherwood residence between 11 a.m. and 2:30 p.m., was irrelevant because it did not cover the time of the cannabis purchase by the informant at 4 p.m. The State also noted that a police report written just after defendant's arrest listed the address as 15410 Cherry Lane, an actual address, and argued that the address listed in the complaint, 15110 Cherry Street, was merely a typographical error. The court granted the State's motion for reconsideration and denied defendant's motion for a Franks hearing.
¶ 8 On December 29, 2010, defendant filed a "Second Motion for a Franks Hearing" in which he reiterated his original claims and added, inter alia, that the original search warrant and the mugshot of him identified by the confidential informant had not been located and that counsel had discovered that Officer DeBois had previously been sued civilly for alleged fourth amendment violations. Defendant further argued that a Franks hearing was also necessary pursuant to another previously filed sworn statement by the alleged confidential informant.
¶ 9 In that filing, defendant alleged that the State had named Aaron Lindsey as the confidential informant and attached a transcript from a deposition of Lindsey in which he testified that he had not been that informant. Lindsey stated that on April 17, 2007, he bought marijuana from a person at school and brought the marijuana with him the next day when he met with his friends Miles Copeland and Jeron Cotton. As he, Copeland, and Cotton were driving, they were pulled over by two police officers and brought to the Markham police station. Lindsey was familiar with Officer DeBois and stated that Officer DeBois was not one of the two officers who stopped them, and Lindsey was not questioned by Officer DeBois at the police station. Lindsey denied obtaining the marijuana in his possession from defendant or telling police that he did. He also claimed he did not sign the complaint for a search warrant or testify before the issuing judge. Lindsey testified that he subsequently learned that he "might have been named" as the confidential informant when he had a conversation with defendant, his cousin, who questioned him about whether he was arrested on Cherry Lane, and Lindsey and defendant noticed the similarities between Lindsey's experience and the alleged experiences of the informant.
¶ 10 In response, the State asserted that it had never represented to defendant or the court that Lindsey was the confidential informant. The State further contended that defendant's attempts to ascertain the identity of the John Doe informant violated a previous court order denying his request to produce the informant.
¶ 11 Defendant then filed a third motion for a Franks hearing on July 19, 2011, in which he now alleged that Miles Copeland was actually the confidential informant. He attached an affidavit from Copeland stating that he had signed a false affidavit and lied to the issuing judge because Officer DeBois had threatened him with five years in prison. In his affidavit Copeland also alleged the following. In April of 2007, he and Lindsey participated in an armed robbery in which they acquired $10 in cash and $90 of marijuana. They later picked up Cotton and were driving when they saw Officer DeBois and another officer look at them from an unmarked police vehicle. The three men exited the car and began to walk away, but came back after the officers told them to do so. The officers searched the car and found one or two fully loaded .32-caliber ...