People v. Cunningham

• Decision Date: 13 September 2002
• Docket Number: No. 1-00-4176.,1-00-4176.
• Citation: 333 Ill. App.3d 1045,267 Ill.Dec. 675,777 N.E.2d 478
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Brian CUNNINGHAM, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

777 N.E.2d 478

333 Ill. App.3d 1045

267 Ill.Dec. 675

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Brian CUNNINGHAM, Defendant-Appellant.

No. 1-00-4176.

Appellate Court of Illinois, First District, Fifth Division.

September 13, 2002.

Dennis Doherty, of counsel, Chicago, for Appellant.

State's Attorney, County of Cook, Chicago (Renee Goldfarb, Janet Powers Doyle and Thomas J. Loftus, of counsel), for Appellee.

Justice REID delivered the opinion of the court:

Following a bench trial, the defendant, Brian Cunningham, was found guilty of possession of a controlled substance and sentenced to 30 months' probation. On appeal, Cunningham argues that the State failed to prove his guilt beyond a reasonable doubt. Specifically, Cunningham claims the testimony of the arresting officer was so unlikely and improbable that it was unworthy of belief and raised a reasonable doubt of his guilt. For the reasons that follow, we reverse the decision of the trial court.

THE FACTS

Cunningham was charged with unlawful possession of a controlled substance with intent to deliver in connection with an incident that occurred in the early morning hours of December 15, 1998, on the northwest side of Chicago, Illinois.

At trial, Chicago police officer David Pfest was the sole witness. On direct examination, Officer Pfest testified that on December 15, 1998, at approximately 12:30 a.m., he was working as a tactical officer in the vicinity of 3800 North Elston Avenue. At that time, he was approached by an unidentified citizen. This person told him a man named "Gumby" was selling narcotics from his car and provided the cell phone number where "Gumby" could be reached.

Officer Pfest telephoned the number and a woman answered. He told her that he needed an "eight ball," the term used in the drug trade for one-eighth of an ounce of cocaine. She then asked if he was "Kevin from Elston by Leona's." Officer Pfest answered that he was and she told him that Gumby was not there, but to call back exactly 15 minutes later.

Officer Pfest did so, and this time a man responded to his call. When the officer asked for Gumby, the man asked what he needed. Officer Pfest repeated his cocaine request, and the man told him he needed 15 minutes to go home and get it. The man said he would sound the horn of his car when he arrived at the location on Elston near Leona's Restaurants (Leona's).

Approximately 15 minutes later, a station wagon drove up there and the horn sounded. Officer Pfest radioed the other members of his team, then approached the vehicle. He observed that Cunningham was the driver with two female passengers. When Officer Pfest got to within four feet of Cunningham, he saw a plastic bag containing a "yellowish white substance" in defendant's hand. When Cunningham looked at Officer Pfest, his eyes widened, and after he looked toward the approaching police cars, he threw the bag to the floor of the car. Officer Pfest ordered Cunningham out of the vehicle and another officer recovered the bag of suspect cocaine. The bag was inventoried and sent to the laboratory for analysis. The parties later stipulated that the material in the bag tested positive for 2.9 grams of cocaine.

During cross-examination, Officer Pfest stated he was working in plainclothes. When the citizen approached him, he and his partner were in a vehicle. However, Officer Pfest could not remember which partner he was with. Officer Pfest testified that the citizen flagged down his car in basically the same area where the arrest took place.

Officer Pfest testified that when the citizen approached him, the citizen said, "here is a telephone number, call this number, ask for Gumby and you can order narcotics." When asked to describe the citizen, Officer Pfest said that he was a white male who was in his late twenties to early thirties. When asked how the citizen was dressed, Officer Pfest testified, "I don't recall, I know he had probably blue jeans and just a T-shirt on."

Officer Pfest did not include a description of the citizen in his police report. Officer Pfest could not recall if he asked the citizen where he got the telephone number. When asked if he questioned the citizen at all, Officer Pfest responded, "I believe I did, there was a conversation with the subject." Officer Pfest was then asked if he memorialized the conversation he had with the citizen. He responded, "other than what is in the report, no." He was then asked, "[the] report just says, citizen gave you this number and [said to] call it, you can order narcotics?" Officer Pfest said, "[b]asically, yes." However, the record reveals that there is absolutely no reference to an unidentified citizen anywhere in his police report.

Officer Pfest did not ask this person to participate in the investigation that followed. After giving the information, the citizen walked away. Officer Pfest further related that he conferred with his surveillance team before he called the number provided by the citizen. When asked, "where did you make the call from physically?" Officer Pfest said, "I believe it was on the cell phone." Officer Pfest could not recall whose cell phone he used when he made the telephone call.

Officer Pfest testified that when he saw the defendant in the car, he realized that he had seen him before and may have previously arrested him for disorderly conduct. Officer Pfest acknowledged that defendant did not attempt to hand anything to him and that the passengers in the car were arrested and charged with disorderly conduct due to the disturbance they created at the scene.

The trial court found Cunningham not guilty of possession with intent to deliver, but guilty of the lesser-included offense of possession of a controlled substance. The court then sentenced Cunningham to 30 months' probation. This appeal follows.

ANALYSIS

On appeal, Cunningham contends his conviction should be reversed because the testimony on which it was based was so palpably unlikely and improbable as to be unworthy of belief. Cunningham maintains Officer Pfest's testimony was contrary to human nature and experience and raised a reasonable doubt of his guilt. We agree.

Where, as here, a defendant challenges the sufficiency of the evidence to sustain his conviction, it is our duty to determine whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the defendant guilty of the essential elements of the crime beyond a reasonable doubt. People v. Campbell, 146 Ill.2d 363, 374, 166 Ill.Dec. 932, 586 N.E.2d 1261 (1992). In a bench trial, it is the province of the trial court to determine the credibility and weight of the testimony, to resolve the inconsistencies and conflicts therein and to render its decision accordingly. People v. Berland, 74 Ill.2d 286, 305-06, 24 Ill.Dec. 508, 385 N.E.2d 649 (1978).

It is our duty to carefully examine the evidence while giving due consideration to the fact that the trial court saw and heard the witnesses. If, however, after such consideration, we are of the opinion that the evidence is insufficient to establish the defendant's guilt beyond a reasonable doubt, we must reverse the conviction. People v. Smith, 185 Ill.2d 532, 541, 236 Ill.Dec. 779, 708 N.E.2d 365 (1999). That is, a criminal conviction cannot stand on appeal if the prosecution's evidence is so weak as to create a reasonable doubt of the defendant's guilt. People v. Gilliam, 172 Ill.2d 484, 515, 218 Ill.Dec. 884, 670 N.E.2d 606 (1996).

Here, the State failed to carry its burden and consequently this matter must be reversed. The State's entire case hinges on the uncorroborated testimony of Officer Pfest, which is so lacking in details that it cannot form the basis for proof beyond a reasonable doubt.

Officer Pfest testified to a series of events on December 15, 1998, which began with a tip from an unidentified citizen about drug sales in the area of Elston Avenue near Leona's. He also testified to his follow-up of the tip, which culminated in the defendant's arrest at the designated location within the period specified by the man answering his second telephone call. The material in the bag defendant discarded as the police approached tested positive for 2.9 grams of cocaine.

Ordinarily, when viewed in the light most favorable to the prosecution, this evidence standing alone, if believed by the court, might be sufficient to establish the elements of the offense of unlawful possession of a controlled substance. People v. Alexander, 202 Ill.App.3d 20, 24, 147 Ill. Dec. 394, 559 N.E.2d 567 (1990). However, on these peculiar facts taken as a whole, we find Officer Pfest's testimony to be incredible, unbelievable, uncorroborated and bordering on the fiction from which fairytales are made. It is important to note that the trial court found the defendant not guilty of the charged offense, i.e., unlawful possession of a controlled substance with intent to deliver, but guilty of the lesser included offense of possession and sentenced defendant to 30 months' probation.

To begin, Officer Pfest allegedly was flagged down by an unknown citizen. How did the citizen know that Pfest was a police officer when Pfest was dressed in plainclothes and working undercover? The citizen then allegedly gave Officer Pfest a telephone number and informed him that "Gumby" was selling drugs and that the officer could call the telephone number and order drugs. Officer Pfest allegedly did not question the citizen about how he got the telephone number or about how he knew the individual sold drugs or ask...