People v. Brown

• Decision Date: 12 October 1993
• Docket Number: No. 1-90-3520,1-90-3520
• Citation: 194 Ill.Dec. 224,627 N.E.2d 340,255 Ill.App.3d 425
• Parties: , 194 Ill.Dec. 224 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Keith BROWN, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 340

627 N.E.2d 340

255 Ill.App.3d 425, 194 Ill.Dec. 224

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Keith BROWN, Defendant-Appellant.

No. 1-90-3520.

Appellate Court of Illinois First District, Second Division.

Oct. 12, 1993.

Jack O'Malley, State's Atty., County of Cook, Chicago (Renee G. Goldfarb, Margaret J. Faustmann, Katherine S.W. Schweit, of counsel), for plaintiff-appellee.

Michael J. Pelletier, Deputy Defender, Office of the State Appellate Defender, Chicago (Patricia Unsinn, of counsel), for defendant-appellant.

Justice DiVITO delivered the opinion of the court:

Defendant Keith Brown was charged with possession with intent to deliver more than 15 but less than 100 grams of cocaine. After a first trial resulted in a hung jury, he was convicted by a second jury of possession of a controlled substance, a lesser included offense. Thereafter, the circuit court sentenced him to seven years in the custody of the Department of Corrections. On appeal, defendant contends that his fourth and fourteenth amendment rights were violated, that prior crime evidence was improperly admitted at his trial, that his sixth and fourteenth amendment rights to confrontation and effective assistance of counsel were violated, and that the mittimus erroneously shows a conviction of an offense for which he was acquitted.

For purposes of our review, we combine the evidence elicited at the hearing on the pre-trial motion to suppress evidence and the trial.

Chicago police officer Manuel Godinez testified that he and his partner, Officer Jay Sanchez, were traveling west on Roosevelt Road near Racine at approximately 9:05 p.m. on November 23, 1988. He observed a gold four-door Chevrolet automobile with a broken rear vent window on the passenger side. Although the car, which had three occupants, committed no traffic violation, the officers stopped it in order to determine whether it had been stolen. As part of his training, Godinez had been taught that a broken vent window was possible evidence of a stolen automobile. According to Godinez, the officers made no effort to find out if it was listed as stolen.

After the vehicle stopped, the three occupants, including defendant, got out. Godinez observed a .38 caliber handgun in the possession of one of the occupants, Kenneth Dean. Dean gave the weapon to another of the occupants, not defendant, and began to run away. Godinez ran after him, caught him, and returned with him to the car. By that time, defendant was in custody. Sanchez showed Godinez a bag containing white powder suspected to be cocaine, and explained that he had recovered the bag from defendant's hand after defendant reached into his jacket pocket while getting out of the car.

Godinez admitted that he had testified at the preliminary hearing on December 22, 1988, that he, not Sanchez, had recovered the drugs from defendant. He had not in fact done so, and was incorrect when he so testified at the preliminary hearing. In all subsequent reports, he wrote that Sanchez had recovered the cocaine. Defense counsel cross-examined him vigorously on this point, as well as on other prior inconsistent statements.

Sanchez testified that he and Godinez had stopped the vehicle with a broken right rear window because they believed it to be stolen. Before stopping the car, Sanchez called his dispatcher to find out if the car had been reported stolen, but had not received the information at the time of the stop. Sanchez saw Dean exit the car and hand a gun to the driver, who placed it on the floor in front of the back seat where defendant was seated. Dean ran away and Godinez pursued him. As Sanchez approached the car, he told defendant and the driver to get out. While he was getting out of the car, defendant reached into his pocket. Sanchez, having already seen one weapon in the car and believing that defendant had another in his pocket, grabbed defendant's hand and removed it from his pocket. Defendant had in his hand a plastic bag containing several smaller plastic bags with white powder, which Sanchez believed to be cocaine.

On cross-examination, defense counsel attempted repeatedly to question Sanchez regarding the weight of the powder. The State objected, and the court sustained the objections. In a sidebar, defendant argued that the State had to prove the weight to be more than 15 grams beyond a reasonable doubt, and that Sanchez's report said only eight grams were recovered. The State argued that Sanchez could not testify as to the actual weight; his testimony should be limited to the fact that he estimated the weight in his report. The court ruled that defense counsel could try to establish a different weight, but not through Sanchez.

Detective Walter Boddie testified that on April 26, 1988, at approximately 10:30 p.m. in the vicinity of 1233 West Washburne in Chicago, he had purchased from defendant two "dime bags" of white powder believed to be cocaine with $15 of prerecorded funds. He had observed three or four men approach the door of the house at that address prior to his own approach, and when he came to the door he saw defendant inside the house behind a set of folding burglar gates. He told defendant he wanted "two for fifteen," which meant he wanted two dime bags of cocaine for $15. He gave defendant $15 in prerecorded funds, defendant gave the money to another man in the apartment, the other man placed two objects in defendant's hand, and defendant gave the two objects to Boddie. The objects were two tinfoil packets containing white powder. Defendant objected to further testimony from Boddie. The court sustained the objection, and instructed the jury that Boddie was testifying for a limited purpose, and that the jury was to consider Boddie's testimony only insofar as it was relevant to the issue of intent.

The parties then stipulated to the testimony of Chicago police chemist Arthur Kruski. He weighed the two packets received by Boddie from defendant, the total weight of both was .20 grams, and tests revealed that the substance contained in each packet was cocaine.

The parties also stipulated that the chain of custody of the seized bag containing 180 smaller bags, each containing a white powder believed to be cocaine, was proper and correct at all times from when it was seized by Sanchez until it was tested by the Chicago police crime lab.

Finally, the parties stipulated to the testimony of Chicago police chemist Gwendolyn Bristor. She separately weighed the white powder contained in 154 of the 180 plastic bags, having removed the powder from each of the bags and having used a properly functioning and calibrated weighing device with which she was familiar. The total weight of the white powder found in those bags was 18 grams. She performed certain tests and examinations on the white powder and determined that, in her opinion, the white powder was a substance containing cocaine, with a total confirmed weight of 16.01 grams.

The large bag, the smaller bags, the gun, the bullets, a diagram used in Sanchez's and Godinez's testimony, and the stipulations were entered into evidence without objection.

Tracey Brown testified for the defense that he had known defendant for about nine years, and he was present when the raid was conducted by Boddie at 1213 Washburne on April 26, 1988. Although he pleaded guilty to delivery of a controlled substance, he had merely been in the house drinking beer. Defendant did not give him $15, he did not give defendant two tinfoil packages, and he did not see defendant give two tinfoil packages to Boddie.

John Brewster testified that he had known defendant for about 10 years. On April 26, 1988, he had been with defendant when they went to visit a woman named Sheila at 1233 Washburne at about 10 p.m. The three of them were sitting in the kitchen when the police broke into the house. Tracey Brown had gone to answer the door twice. Defendant never went to answer the door, and he never sold cocaine to Boddie.

Kenneth Dean testified that it was Sanchez and not Godinez who chased him. He denied possessing a weapon when he got out of the car and ran, but admitted pleading guilty to a weapon violation. He saw defendant outside the car when he returned, but did not see either policeman recover a plastic bag containing white powder. The car was owned by the third occupant, and had a broken opera window which had been taped over.

Defendant testified that on November 23, 1988, he had been shopping during the evening. He walked to the bus stop, and while waiting for a bus he saw a gold 1987 Chevrolet drive by with his acquaintance Frank Shaw in the passenger seat. Defendant also called the passenger "Kenney". The car stopped, the passenger having recognized defendant, and defendant asked him if he was going defendant's way. Defendant got in the back seat of the car. One of the rear windows of the car was broken.

When the officers flashed their lights, defendant told the driver to pull over. She did so at the first opportunity, which was after two or three blocks. After they stopped, Frank Shaw got out of the car and ran. Defendant did not see him do anything before he got out of the car, and he specifically did not see him throw a gun. Sanchez ran after Shaw, and Godinez opened the front passenger door, leaned into the back seat, grabbed defendant by the collar, and held a gun to his face. The officer didn't say anything to him, and he didn't say anything to the officer.

The officer then put the gun back in his holster, went to the other side, and told defendant to step out of the car. Defendant did not reach into his pocket, and did not have a bag with clear plastic bags containing white powder in his pocket. Godinez searched the car, reached under the seat, and recovered a gun. Godinez then reached under the seat again, and came out with the plastic bag. Defendant did not put the bag under the seat, and had not seen it there before. He did not know that...