Court of Appeals of Illinois, First District, Second Division
Modified Upon Denial of Rehearing May 12, 2015.
Appeal from the Circuit Court Of Cook County. No. 06 CR 16029. The Honorable Charles P. Burns, Judge Presiding.
For DEFENDANT-APPELLANT: Michael J. Pelletier, Deputy Defender, Office of the State Appellate Defender, Chicago, Illinois, Of Alan D. Goldberg, Deborah Nall.
For PLAINTIFF-APPELLEE: Anita Alvarez, State's Attorney, County of Cook, Chicago, Illinois, Of Alan J. Spellberg, Mary P. Needham, Margaret M. Smith.
JUSTICE NEVILLE delivered the judgment of the court, with opinion. Presiding Justice Simon and Justice Liu concurred in the judgment and opinion.
[¶1] This case comes before the appellate court for a third time. A grand jury charged defendant, Darven Marion, with possession of cocaine and cannabis. Marion moved to dismiss the indictments based on allegations that a police officer promised that the State would not arrest him for the narcotics offenses if Marion helped police with crime prevention efforts. The trial court denied Marion's motion to dismiss the indictments and, in a bench trial, found Marion guilty of possessing cocaine and cannabis. On appeal, Marion argued that the court erred when it denied his motion to dismiss the indictments. We vacated the convictions and remanded for completion of the hearing on Marion's motion to dismiss. People v. Marion, 404 Ill.App.3d 1170, 996 N.E.2d 773, 374 Ill.Dec. 1078 (2010) (unpublished order under Supreme Court Rule 23).
[¶2] At the hearing on remand, the judge, who had not presided at the initial hearing on the motion to dismiss, read the transcripts from that hearing and found that Marion did not testify credibly. The judge reinstated the convictions. On the second appeal, we found nothing inherently incredible about Marion's testimony. We reversed and remanded a second time for completion of the hearing on Marion's motion to dismiss the indictments. People v. Marion, 2012 IL App. (1st) 082465-U.
[¶3] At the hearing on the second remand, prosecutors presented the testimony of a police officer who said police never promised Marion anything at all for the help he provided. The trial judge found the officer credible and therefore held that Marion failed to prove an enforceable agreement with police. The judge additionally held that even if Marion had testified truthfully, police lacked authority to promise not to arrest a suspect in exchange for help with police work. The judge denied Marion's motion to dismiss the indictments and reinstated the convictions.
[¶4] On this third appeal, we reject the trial court's credibility determination. We also hold that police have authority to agree not to arrest a suspect in exchange for cooperation with police work. Accordingly, we reverse the trial court's judgment.
[¶6] Police arrested Marion on June 21, 2006, charging him with possession of more than 15 grams of cocaine and more than 30 grams of cannabis. A grand jury later indicted Marion for possession of cocaine and cannabis with intent to deliver. Marion moved to dismiss the indictments based on an agreement he allegedly reached with some of the officers involved in his arrest.
[¶7] The Evidentiary Hearing
[¶8] The trial court held an evidentiary hearing on the motion to dismiss the indictments. Marion testified that shortly after midnight on June 21, 2006, seven or eight police officers approached him as he stood outside his car, near the intersection of Harrison and Kolmar, talking to John Herndon and another friend. According to Marion, some officers took the keys from his car and left the scene. A half hour later, a call came in to one of the
officers who had stayed with Marion. The officers at the scene handcuffed Marion and Herndon and drove them in a police car to an address a few blocks away, where Marion used an apartment to store his furniture and to stay overnight sometimes. Officers came out of that building with some bags, which they claimed held drugs they found in the apartment Marion used. The officers then removed from Marion's back pocket about $7,000 in cash. Marion testified that he had just finished gambling.
[¶9] According to Marion's testimony, some of the officers then drove him back to his car. One of the officers asked Marion, " [Y]ou want to help yourself in this case?" Marion said yes. The officer said, " [Y]ou got some guns?" Marion said he had none, but he knew how to get some. Marion testified that the officer said, " [Y]ou give me some guns, you can leave with your money and we won't even pursue this case."
[¶10] Marion testified that he then placed a few calls on his cell phone. The persons he called delivered guns to nearby locations, as Marion requested. Marion directed officers to an address near Van Buren and Kolmar, where they recovered two guns, and to Harrison and Kilbourn, where they recovered a third gun. Marion ...