People v. DeCesare
| Decision Date | 17 November 1989 |
| Docket Number | No. 2-88-1114,2-88-1114 |
| Citation | 190 Ill.App.3d 934,547 N.E.2d 650 |
| Parties | , 138 Ill.Dec. 483 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Salvatore DeCESARE, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
Terry Sullivan, Nancy J. Nicol, Law Offices of Terry Sullivan, Ltd., Rolling Meadows, for DeCesare.
Fred L. Foreman, Lake County State's Atty., William L. Browers, Deputy Director, State's Attys., Appellate Prosecutor, Eleesha Pastor O'Neill, Chicago, for the People.
Defendant, Salvatore DeCesare, was convicted of unlawful delivery of 15 or more grams of a substance containing cocaine (Ill.Rev.Stat.1987, ch. 56 1/2, par. 1401(a)(2)) and sentenced to a 10-year term of imprisonment. Defendant contends on appeal that the trial court made the following errors: (1) admitting into evidence three guns found in his bedroom during a search of his home; (2) admitting into evidence several plastic bags found in his laundry room during the same search; (3) denying defendant's motion for a new trial; and (4) denying defendant's motion to dismiss the indictment as a result of false testimony by a police officer before the grand jury. We affirm.
The charges against defendant in this case arose from an alleged cocaine sale by defendant to Jay Parker on January 30, 1988. Parker testified that he had been charged with a Class X felony prior to that date. The State's Attorney agreed to reduce this charge if Parker disclosed the name of his cocaine supplier. Although no deal was made concerning the sentence Parker would receive on the reduced charge, he was sentenced to a probationary term.
Parker testified that on the morning of January 30, 1988, he met with Steven Semenek, a detective with the Lake County sheriff's police, and several agents of the Lake County Metropolitan Enforcement Group (LCMEG) in Ivanhoe. Semeneksearched Parker and his car. Parker asked a telephone call to defendant's car phone. Parker asked if they could meet at defendant's house in Barrington so that Parker could purchase an ounce of cocaine. Defendant agreed. Parker then drove to the house, but defendant was not home.
After leaving the house, Parker met Semenek at a grocery store parking lot in Wauconda. Parker placed another phone call to defendant, who was home. He then returned to defendant's house and entered the garage. Parker gave defendant $900 and defendant gave him a bag which contained a white powdery substance. Parker then returned to the grocery store parking lot and turned the bag over to Semenek. Some other law enforcement agents were also present, although Parker did not know who they were. Defendant subsequently stipulated that the bag turned over by Parker contained 25.3 grams of a substance containing cocaine. Semenek searched Parker and his car at the parking lot but did not find anything.
Parker stated that, as far as he knew, the law enforcement agents remained at the grocery store parking lot in Wauconda while he went to defendant's house to purchase the cocaine. The parking lot was five to seven miles from defendant's home. Parker testified that he did not look to see if the agents were following him and that it was possible they were.
Parker denied having sometimes entered defendant's home or garage when defendant was not present. He admitted that defendant loaned him $1,793 to pay for car repairs but stated that he repaid this sum two weeks after he borrowed it.
Detective Steven Semenek of the Lake County sheriff's police testified that he and several LCMEG agents met Parker in Libertyville at a sheriff's police substation at about 2 p.m. on the afternoon of January 30, 1988. Semenek searched Parker at this time and found no controlled substances. According to Semenek, Parker was directed to undo and drop his pants prior to the search. Semenek also searched the front seat, passenger's seat, glove compartment, and trunk of Parker's car. He found no controlled substances or money during this search. The agents then gave Parker $900 in prerecorded currency.
Parker then began driving toward Barrington. Semenek and LCMEG Agent Nugent followed him in one vehicle while LCMEG Agents Hunter and Heidecke followed him in another vehicle. Parker stopped near the intersection of routes 60 and 83 in Ivanhoe in order to use a pay telephone. He then continued driving to Barrington. Semenek saw him turn onto Border Lane in Barrington, the street where defendant resided. Semenek and Nugent then took up a surveillance position at a school on Route 59 about a quarter of a mile from defendant's residence. They could not see defendant's residence from this position. Parker was out of their sight for about 2 or 2 1/2 minutes.
Semenek then saw Parker exit the area in his car and drive to a grocery store parking lot in Wauconda. The agents followed him to the parking lot, and Parker informed them that defendant was not home.
Semenek testified that Parker then made another telephone call. The agents once again followed him to the Border Lane area and took up surveillance positions. Parker was out of Semenek's sight for about five minutes. Semenek then saw Parker's car leave the area. Parker went back to the grocery store parking lot, and the agents followed him there. Parker turned over a white envelope with a plastic bag inside that contained a white powdery substance. Semenek then searched Parker and his car. Semenek did not find any money or controlled substances in this search.
Officer Syndy Nugent corroborated much of Semenek's testimony concerning the events of January 30, 1988. Nugent stated that she had been a police officer with the City of Zion for eight years and had been assigned to LCMEG for the past 2 1/2 years. She had participated in 20 to 30 drug investigations as an undercover agent and had conducted surveillance in over 100 drug cases. Nugent testified that LCMEG is a drug-enforcement group.
As a result of the information supplied by Parker, the LCMEG agents received a search warrant for defendant's residence. Nugent was one of the agents who executed the warrant on February 10, 1988. While searching a downstairs room, Nugent found an Ohaus triple-beam scale which was admitted into evidence without objection. Nugent also testified that she found three plastic bags, one of which had been wrapped with yellow tape, on a shelf in the laundry room. She stated that in three other cases, she had seen similar items used for the packaging of cocaine. Nugent testified that she had seen similar packaging materials in cases involving half a pound of cocaine or more and that she had seen similar yellow tape used to wrap bags containing over a pound of cocaine. The plastic bags were admitted into evidence over defendant's objection.
Nugent also found three handguns while searching the bedroom shared by defendant and his wife. She found two revolvers on the top shelf of a closet which contained men's clothing. She found a .22 caliber handgun in a drawer containing men's underwear in another closet. The drawer also contained an ammunition clip with five projectiles that fit into the gun. The handguns were admitted into evidence over defendant's objection.
On cross-examination, Nugent testified that the plastic bags she found could have a number of uses, as could the scale. She stated that the scale was found in a closet of a room which contained a tanning bed and tanning bulbs.
Defendant's housekeeper, Ronnie DeAngelo, testified that she had worked in his home for eight years. According to DeAngelo, the two entrances to defendant's garage were never locked. She testified that Jay Parker was in defendant's house just about every day, often when defendant was not around. Most of the time Parker was intoxicated.
DeAngelo testified further that the triple-beam scale in the house was used for weighing gold jewelry. She stated that Mrs. DeCesare sold jewelry during the Christmas season in her tanning salon. DeAngelo had not seen the plastic bags that were admitted into evidence but stated she had used similar bags for canning.
Defendant's wife, Cheri DeCesare, corroborated DeAngelo's testimony concerning the use of the triple-beam scale. She also testified that the garage was never locked and she had seen Jay Parker in the garage and the house at times when defendant was not home.
Mrs. DeCesare testified that she owned the three guns seized in the February 10, 1988, search. She bought the guns because she had previously been the victim of a burglary in her home. At one point, defendant owned a towing business and was often away at night. Mrs. DeCesare bought the guns because she was afraid of being home alone at night.
The jury found defendant guilty of the offense in question. Defendant subsequently filed an amended motion for a new trial based upon newly discovered evidence. Attached to the motion was an affidavit from Jay Parker in which he stated that he spoke to two of defendant's attorneys on September 20, 1988.
The affidavit states that during the above conversation, Parker told the attorneys that he did not have to remove any of his clothing before the officers searched him on January 30, 1988, and the officers merely performed a pat-down search. The affidavit further states that one of the officers merely looked inside and under the front seat of his car on that date and that the officers did not perform a complete search of the car at any time.
According to the affidavit, Parker told the attorneys that he was never followed by any marked or unmarked police cars when he drove to defendant's home on the above date. The agents stayed in a grocery store parking lot and were always there when Parker returned to that location. The agents told Parker he would get 15 years in prison if he did not testify and that they would keep him in prison until he testified.
The trial court denied the amended motion for a new trial and also denied...
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