Court of Appeals of Illinois, First District, Fourth Division
from the Circuit Court of Cook County No. 13 CR 13843
Honorable Thomas J. Hennelly, Judge Presiding.
PRESIDING JUSTICE delivered the judgment of the court, with
opinion. Justice Howse concurred in the judgment and opinion.
Justice Burke dissented, with opinion.
1 Following a bench trial, defendant Derrick White was found
guilty of delivery of a controlled substance (heroin) (720
ILCS 570/401(d) (West 2012)) and sentenced to 10 years'
imprisonment. On appeal, defendant contends that (1) the
State failed to present sufficient evidence that he was the
offender who delivered the controlled substance, (2) he was
denied his right to a fair trial when the trial court
precluded and limited his introduction of tattoo evidence,
and (3) his fines and fees order must be reduced. We agree
with his second argument, and thus we vacate defendant's
conviction and remand for a new trial.
2 At trial, Chicago police officer Steven Leveille testified
that, at 5:38 p.m. on June 25, 2013, he was undercover and
working with a team of other officers attempting to conduct
controlled drug purchases. Leveille walked toward an alley
located near the 800 block of South Kedvale Avenue after
officers alerted him that suspect drug activity was occurring
in the area. As Leveille approached the alley, a man, whom
Leveille indentified at trial as defendant, came up to him
wearing a sleeveless white tank top. Defendant asked Leveille
how many "blows" he wanted, which Leveille
explained at trial was a street term for heroin. Leveille
responded that he wanted two. Defendant, using his right
hand, gave Leveille two plastic bags containing a white
powdery substance, which Leveille believed was suspect
heroin. In return, Leveille gave defendant $20 of prerecorded
police funds. The parties later stipulated that the items
recovered by Leveille tested positive for heroin and weighed
0.7 grams. Leveille walked out of the alley and alerted the
other officers. He did not look to see where defendant went.
Nothing obstructed Leveille's view of defendant's
face during the transaction, and Leveille described the
lighting conditions of the alley as "very good"
because the sun was out. Leveille, who had been face-to-face
with defendant, could also see defendant's right hand and
arm. He did not remember observing any scars on
defendant's face or tattoos on his body, the latter of
which, he testified, he would have documented had he observed
3 Leveille returned to his vehicle but never received a
communication that defendant had been arrested. He later
returned to the police station where he inventoried the
suspect heroin. At approximately 8:49 p.m., he viewed a photo
array consisting of five individuals and identified defendant
as the individual who sold him the suspect heroin.
4 Chicago police officer Edward Legenza, a surveillance
officer, testified he was monitoring activity in the alley
and saw a man, whom Legenza identified at trial as defendant,
"congregating" with a large group of people.
Legenza was "[j]ust south of" defendant's
location and had a clear and unobstructed view of defendant.
From there, Legenza observed defendant perform
"hand-to-hand transactions" with several men in the
alley and, as a result, alerted other officers that he had
just observed suspect drug transactions. Defendant was
wearing a white tank top, but Legenza did not observe any
tattoos on his body. Legenza then testified that, from his
"vantage point, " he could not see whether
defendant had tattoos. When shown his report, he admitted
that he had written that the dealer "does not have
tattoos." Legenza then witnessed the transaction between
defendant and Leveille. After the transaction was complete,
Legenza alerted other officers but lost sight of defendant
and did not see him again that day.
5 Legenza returned to the police station where a sergeant put
together a photo array. The photo array was created using the
address of the transaction and the description of defendant,
although Legenza acknowledged not including the latter in his
report. Legenza agreed that he never identified defendant in
the photo array and never participated in any identification
6 The parties stipulated that, two days later, defendant was
arrested on the 800 block of South Kedvale Avenue based on
Leveille's identification of him in the photo array.
There was no evidence that defendant possessed narcotics or
prerecorded funds when he was arrested. The parties further
stipulated that Leveille and Legenza were not present when
defendant was arrested and did not identify him following his
7 Defense counsel unsuccessfully moved for a directed
finding, arguing defendant had been misidentified by the
8 In the defense's case, defendant sought to show the
tattoos on his arms to the trial judge. The following
"DEFENSE COUNSEL: For demonstrative purposes, I would
like to have the Defendant approach and show his Honor his
THE COURT: Sure.
ASSISTANT STATE'S ATTORNEY: I will approach as well.
DEFENSE COUNSEL: Could you hold out both your right and left
THE COURT: Well, you know what. Wait. He is not going to show
me all of his tattoos. He is going to show me his right arm,
which was the arm extended to the officer, and it will be
face down. Take your arm and have your palm down, not up.
I am looking at his arm palm down, as is the State, and I see
DEFENSE COUNSEL: Your Honor, you are standing up above there,
and the officer testified that he could see objects in his
hand, in his palm, in his open hand.
THE COURT: You never made that clear in the record.
DEFENSE COUNSEL: I think it was clear, your Honor.
THE COURT: You want to argue with me? It was never clear on
the record as to how his hand was presented to the officer,
whether it was palm up and the forearm was showing or palm
down. That was never put on the record. You could have asked
the officer that when he testified. You never did.
DEFENSE COUNSEL: Judge, I also asked to have him approach,
THE COURT: Right, and I said that would do-that is not a
demonstrative aid to have the officer in court observe your
client after the fact. I said you could present evidence that
there were tattoos and then attack the identification, which
is what you are doing.
DEFENSE COUNSEL: Judge, I am going to ask that somebody stand
next to my client in the way that the officer says he was
standing next to him and have him hand it with his palm down
and with his palm up. The officer clearly said that he saw
objects in his hand.
THE COURT: And did he say the objects in his hand were
released with his palm down, or did he say the objects in his
hand were released with his palm up? Would you answer my
DEFENSE COUNSEL: He was not asked ...