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People v. Wilkerson

Court of Appeals of Illinois, First District, Fifth Division

August 26, 2016

TORRAY WILKERSON, Defendant-Appellant.

         Appeal from the Circuit Court of Cook County. No. 14 CR 09402 The Honorable Vincent M. Gaughan, Judge Presiding.

          JUSTICE GORDON delivered the judgment of the court, with opinion. Presiding Justice Reyes and Justice Burke concurred in the judgment and opinion.



         ¶ 1 Following a bench trial, defendant was convicted of being an armed habitual criminal, possession with the intent to deliver 900 grams or more of heroin, and unlawful use of a weapon by a felon, but found not guilty of armed violence. Defendant was sentenced on June 24, 2015, to the minimum sentence of 15 years for possession of a controlled substance with intent to deliver, and 7 years for being an armed habitual criminal with the unlawful use of a weapon count to merge into that count. The court ordered both sentences to run concurrently.

         ¶ 2 On this appeal, defendant claims (1) that he was denied effective assistance of trial counsel where trial counsel (a) had a conflict of interest, (b) stipulated to the laboratory analysis, (c) failed to cross-examine a police officer about his vantage point in viewing defendant throw a gun out a window, and (d) failed to inquire about defendant's employment history; (2) that the State failed to establish guilt beyond a reasonable doubt that defendant possessed 900.5 grams of drugs with the intent to deliver; (3) that the conviction must be reversed due to inconsistent findings between defendant and codefendant where the State presented more evidence of guilt against codefendant, who was found not guilty, than against defendant, who was found guilty; and (4) that defendant's convictions for armed habitual criminal and unlawful use of a weapon by a felon should be reversed because the police officer's testimony concerning his view of the gun disposal was incredible. For the following reasons, we affirm defendant's convictions and sentence.

         ¶ 3 BACKGROUND

         ¶ 4 Defendant Torray Wilkerson was indicted on six felony counts including armed violence, armed habitual criminal, a Class X possession of a controlled substance with the intent to deliver, two counts of unlawful use of a weapon by a felon, and aggravated unlawful use of a weapon. The State dismissed one of the unlawful use of a weapon by a felon counts, as well as the aggravated unlawful use of a weapon count, before trial.

         ¶ 5 The evidence at trial established that on May 1, 2014, a nine-man team of police officers executed a search warrant of a three-story building on West Ogden Avenue in Chicago, which consisted of five apartments and a storefront. The target of the search warrant was an individual named Todd Jones. The team did not find Todd Jones at the location but instead found defendant and codefendant as well as drugs that were recovered in the storefront. At trial, the State called police officers Kyle Mingari, Bill Murphy, and Mark Gutkowski. Defendant did not testify. The parties stipulated to the findings of forensic chemist Lenetta Watson. After trial, the trial court held a posttrial evidentiary hearing regarding defendant's claim of ineffective assistance of trial counsel.

         ¶ 6 I. Evidence at Trial

         ¶ 7 A. Direct Examination of Officer Kyle Mingari

         ¶ 8 On October 22, 2014, Officer Kyle Mingari testified that he is a police officer assigned to the bureau of organized crime, narcotics division. He has been a Chicago police officer for eight years; he had been assigned to his unit for 2½ years; and he had executed search warrants in the past and had received training for firearms, both with the Chicago police department (CPD) and the Marine Corps.

         ¶ 9 Officer Mingari testified that on May 1, 2014, at 12:51 p.m., he, along with his supervisor and seven other police officers, executed a search warrant at an apartment building located on West Ogden Avenue in Chicago. The three-story building contained three apartments in the rear and an empty storefront with two apartments above it. The search warrant was confined to the first-floor rear apartment.

         ¶ 10 Officer Mingari testified that, while standing in a hallway between the front door of the rear apartment and the rear door to the storefront, he heard the sounds of a television coming from the storefront and knocked on the door. A male voice responded asking who it was, and Officer Mingari announced that he was a Chicago police officer, at which time he heard a second male voice respond "hold on." Officer Mingari then heard a distinct sound that he believed to be a gun slide being racked[1] and simultaneously heard "a front door opening to the front." At that time Officer Mingari heard one of his team members, Officer McKenna, yell from his position in the gangway on the east side of the building that codefendant Senica Wilkerson was climbing over the gate and running out from the front. At that point Officer Mingari moved toward the front of the building and observed another team member, Officer Mark Gutkowski, pursuing codefendant Senica Wilkerson. Officer Mingari made an in-court identification of codefendant as the individual he observed Officer Gutkowski pursuing.

         ¶ 11 Officer Mingari testified that, after he observed Officer Gutkowski pursuing codefendant, he exited the building out of the side stairwell and was standing in front of the building where he observed, through the scissor gates, that the front glass door was open. Officer Mingari could see through the open glass door into the storefront, and he observed defendant exiting out of the back door and up the stairwell to the second floor. Officer Mingari made an in-court identification of defendant, who he observed running up the stairs. He pursued defendant through the gangway and into the center hallway. At that time, he heard a door slam on the second floor, but he waited for assistance until team member, Officer Matthews, [2]arrived.

         ¶ 12 Officer Mingari testified that, after Officer Matthews arrived, Officer Mingari knocked on the door to the second-floor rear apartment, and there was no response. Officer Mingari then heard his supervisor, Sergeant Steck, relaying over the radio that Officer Bill Murphy, who was outside, had observed an individual inside that apartment open a window and discard what he believed was a firearm onto an adjacent roof. During this time, Officer Mingari remained at the door until defendant opened it and allowed officers Mingari and Matthews to enter. The officers temporarily detained defendant and Officer Murphy positively identified defendant as the individual he had observed discard the firearm onto the roof.

         ¶ 13 Officer Mingari testified that he went back down to the first floor and observed the empty storefront from his position at the threshold of the open rear door. Officer Mingari observed what he perceived to be several packages of drugs and two dogs in a cage. Officer Mingari could observe the storefront through the open door without opening it any further. After waiting for additional officers, he conducted a security sweep of that storefront. During the search, Officer Mingari observed packages of heroin, 85 total, on the table and a large quantity of heroin in the bathroom on a mirror that was on a toilet. He also observed a large case containing the prescription drug Dormin, which Officer Mingari testified is a sleeping aid usually used as a cutting substance in the mixing of drugs, as well as several more packages of drugs. After conducting a more thorough search, he observed a clear white trash bag with ammunition in it, as well as a large clear knotted bag that contained heroin. Officer Mingari also recovered four digital scales, three mixers, and a sifter.

         ¶ 14 Officer Mingari identified the following photographs that were admitted into evidence: (1) a photograph of the storefront entrance with scissor gates and an open glass door; (2) a photograph of the rear of the storefront, depicting the table with the drugs, on which Officer Mingari circled the drugs recovered from the table and the location of the digital scale and the sifter; (3) a photograph of the table where 85 bags of drugs were found; (4) a photograph of a blue plastic bin that contains mixers; (5) a photograph of the bundled packages of drugs on the floor toward the front of the storefront; (6) a photograph of the front portion of the storefront; (7) a photograph of a clear plastic bag of drugs; and (8) a photograph of the toilet covered by a mirror covered in heroin in the bathroom of the storefront. Officer Mingari testified that the eighth photograph entered into evidence depicted "the mirror with the pile of heroin on top of the mirror which is on the toilet" in the bathroom of the storefront.

         ¶ 15 Officer Mingari testified that he placed all the evidence into a blue plastic Rubbermaid bin and gave it to Officer Gutkowski. Officer Mingari then went back to the Homan Square police headquarters and spoke with defendant and codefendant, who are brothers. The codefendant told him that, at the time the search warrant was executed, only he and defendant were in the storefront and that defendant's residence was the second-floor rear apartment, which was the same apartment where defendant answered the door for Officer Mingari and from which Officer Murphy observed defendant throw the gun onto the roof. The codefendant told him that he resided on West Congress Avenue in Chicago.

         ¶ 16 B. Cross-Examination of Officer Kyle Mingari

         ¶ 17 On cross-examination, Officer Mingari identified the search warrant, which he and his team executed at West Ogden Avenue on May 1, 2014. In the portion of the search warrant that indicated the premises to be searched, Officer Mingari testified that it indicated only the first floor. Officer Mingari testified that the individual that was the subject of the search warrant, Todd Jones, was a 6-foot-2-inch, 200-pound, 58-year-old African American and that codefendant did not resemble a 58-year-old man but that the officers still gave chase. Officer Mingari testified that codefendant had to climb over the scissor gates and that the glass door is visible in People's exhibit No. 1, but it was covered in plastic bags and he could not see through the glass. Officer Mingari testified that, in the photograph, the door was being propped open to air out the storefront, but that when he observed the storefront through the door, the door was open without being propped open. Defense counsel asked if the door automatically closed if it was not propped open, and Officer Mingari testified that it did not but that it was propped open at the time of the taking of the photograph in order to ensure that it stayed open.

         ¶ 18 C. Redirect

         ¶ 19 Officer Mingari clarified on redirect that the door was open at the time the photograph was taken in order to air out the inside of the storefront due to heroin residue or powder. Offincer Mingari testified that when officers are exposed to chemicals or drugs they are required to do an exposure report.

         ¶ 20 D. Officer Bill Murphy

         ¶ 21 Officer Bill Murphy testified that he has been a Chicago police officer for 18 years and had been assigned to the narcotics unit for over eight years. Prior to working for the CPD, Officer Murphy testified that he worked for two years as a reserve officer for the City of Wheaton and spent four years as a military policeman in the Army. Officer Murphy testified that he conducted previous drug investigations and executed search warrants and is familiar with the appearance of firearms. On May 1, 2014, at 12:51 p.m., he was a part of the team that was executing a search warrant. After the team finished executing the search warrant, he stayed on the outside perimeter of the building conducting security. Officer Murphy heard one of his teammates, Officer McKenna, yell out from the front area of the building that someone was running, and Officer Gutkowski began running to the front while Officer Murphy stayed near his location. Officer Murphy then heard a door slam; the sound had come from his right and above him, toward the back of the building. Within 30 seconds, he heard a screen opening from above and observed an individual lean out of the window and toss what he believed to be a handgun on the roof of an adjacent building that was approximately six feet above the the window he observed defendant leaning from. Officer Murphy made an in-court identification of defendant as the individual he observed throw the gun. After he made these observations, he yelled to his supervisor, who was in the rear of the building, that he observed someone throw a gun on the roof. His supervisor notified the other team members via radio, and Officer Murphy stayed in his location to maintain surveillance.

         ¶ 22 Officer Murphy testified that, within five minutes, another team member, Officer Scharr, relieved him, and he went inside the residence to identify the person officers Mingari and Matthews had detained, whom he identified as defendant. Officer Murphy then returned to his previous location to stand with Officer Scharr and wait for the Chicago fire department to arrive to retrieve the firearm from the roof. Officer Murphy and a firefighter entered the basket of a cherry picker and were brought up to the roof, where Officer Murphy recovered the gun, unloaded it, and emptied the magazine. The gun was a Glock Model 19 9-millimeter pistol, which was loaded with 1 round in the gun and 12 in the magazine. Officer Murphy then identified People's exhibit No. 10 as a photograph depicting an overhead view of the two buildings on West Ogden Avenue. Officer Murphy placed an "X" where he was standing when he observed defendant throw the gun onto the roof. Officer Murphy placed a "G" on the location where he recovered the handgun. Officer Murphy identified People's exhibit No. 11 as a photograph depicting an overhead view of where he had been standing. After he recovered the handgun, he gave it to Officer Gutkowski.

         ¶ 23 On cross-examination Officer Murphy testified that, when he observed defendant lean out the window, Officer Murphy was approximately 15 to 20 feet from him and he could observe defendant's body from the chest up.

         ¶ 24 E. Officer Mark Gutkowski's Testimony

         ¶ 25 Officer Mark Gutkowski testified that he is assigned to the narcotics section of the CPD and that he has been a police officer for 11 years and in the narcotics unit for six years. On May 1, 2014, Officer Gutkowski was part of a team executing a search warrant on the rear apartment of the building on West Ogden Avenue. After the team finished executing the warrant, he observed several members of the team approach the rear entrance door of the storefront, and he went outside behind the building. Once he relocated, he heard Officer McKenna yelling, "He's coming out the front. He's running." Officer Gutkowski then ran to Ogden Avenue through the vacant lot on the west side of the building and observed a black male being pursued by Officer McKenna across Ogden Avenue. Officer Gutkowski pursued on foot, running across Ogden Avenue and eventually detaining the individual. Officer Gutkowski identified that individual as codefendant. Officer ...

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