People v. Elworthy, 1-88-2133

• Decision Date: 31 May 1991
• Docket Number: No. 1-88-2133,1-88-2133
• Citation: 574 N.E.2d 727,214 Ill.App.3d 914
• Parties: , 158 Ill.Dec. 614 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Mark C. ELWORTHY, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 727

574 N.E.2d 727

214 Ill.App.3d 914, 158 Ill.Dec. 614

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Mark C. ELWORTHY, Defendant-Appellant.

No. 1-88-2133.

Appellate Court of Illinois,

First District, Fifth Division.

May 31, 1991.

[214 Ill.App.3d 915] [158 Ill.Dec. 616] Terry Sullivan, Ltd., Rolling Meadows (Nancy J. Nicol, of counsel), for defendant-appellant.

Jack O'Malley, State's Atty. of Cook County, Chicago (Renee Goldfarb, James Fitzgerald, Asst. State's Attys., of counsel), for plaintiff-appellee.

Presiding Justice LORENZ delivered the opinion of the court:

Defendant, Mark C. Elworthy, appeals from his convictions for possession of cannabis and possession of cocaine with intent to deliver. (Ill.Rev.Stat.1987, ch. 56 1/2, pars. 704(d), 1402(a)(2).) We consider: (1) whether the denial of defendant's jury waiver was unconstitutional; (2) whether the denial of defendant's motion to quash the search warrant was against the manifest weight of the evidence; (3) whether the denial of defendant's motion to suppress statements and evidence was against the manifest weight of the evidence; and (4) whether the exclusion of evidence as a discovery sanction was an abuse of discretion. For the following reasons, we reverse and remand for new trial.

Officer Julius Jones prepared a complaint for a search warrant of defendant's house based on information given to him by a confidential informant he had known for five years. In the affidavit supporting the complaint, Jones stated that in the previous two months, the informant had given him information on two occasions which resulted in the seizure of illegal drugs and the arrest of suspects. Jones stated that on November 23, 1985, the informant told him he had just purchased a quarter of an ounce of cocaine for $500 from defendant in defendant's house. The informant also A judge issued a warrant to search defendant's house for cocaine which was executed on November 25, 1985. The police recovered cocaine, cannabis, and $54,200 in cash. He was arrested and charged with possession of cannabis and possession of cocaine with intent to deliver.

[158 Ill.Dec. 617] said defendant still had a large amount of cocaine left in the house.

Defendant moved to quash the search warrant arguing the affidavit supporting the warrant contained false statements and requesting an evidentiary hearing pursuant to Franks v. Delaware (1978), 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667. Defendant's motion was supported with his affidavit and that of his wife, Denise Elworthy, and his friend, Wally Naumenko. They each stated that defendant was in Ontario on November 23, 1985, the date the informant claimed he purchased cocaine from defendant.

The trial judge found defendant presented a sufficient basis to grant an evidentiary hearing. At the hearing, Officer Jones testified that when he met with the informant, the informant had used some of the cocaine he purchased from defendant. The informant was "feeling kind of good" but responded intelligently during their conversation. Jones also testified he had received information from the informant approximately 40 times in five years and he had never given false information. On 25 to 30 of those occasions, the information led to the recovery of contraband, for which the informant was paid. On 10 to 13 other occasions, the information did not result in the recovery of contraband but Jones explained the failures were not due to the inaccuracy of the information from the informant. Generally, the failures resulted when the suspects either disposed of the drugs or sold them before the police could recover them.

Denise Elworthy, defendant's wife, testified that on November 22, 1985, defendant drove to Ontario with Naumenko and did not return until November 24, after 1:00 a.m. She denied that any one came to the house to purchase cocaine on November 23.

Naumenko testified he was with defendant on the trip to Ontario and after dinner on November 23, defendant drove back home by himself.

Based on Jones' testimony, defendant subpoenaed approximately 43 affidavits for search warrants, spanning a five-year period, prepared by Jones in which he relied on information from the informant involved in this case. When the State resisted the subpoena, the trial judge ordered it to produce only the affidavits relating to the two previous encounters that Jones referred to in his affidavit. The judge inspected the affidavits in camera and excised portions which could have led to the identity of the informant. They were then produced to defendant for the hearing and Jones was recalled as a witness.

Jones further testified that in 1985 he prepared approximately 15 affidavits for search warrants relying on information from the informant using a similar format. Jones explained that in the affidavit for defendant's case he cited only the past two months contact with the informant to show recent reliability.

Defendant also subpoenaed the Chicago Police Department's file on the confidential informant. From the trial judge's in camera review of the file, he stated that the informant began providing information to the department in 1981 and, since that time, had provided information 88 times for which he was often paid. He received a total of $3400 for previous cases and $1500 for defendant's case. Based on the file, the judge was satisfied that there was a confidential informant. Although defendant also moved for the disclosure of the informant's identity and production of the informant for the hearing, the judge denied the motion after reviewing the file.

In ruling on defendant's motion to quash, the judge found that although defendant's witnesses were credible and testified that defendant was out of town when the alleged drug sale took place, Jones had no reason to doubt the informant. Based on the testimony at the hearing and the review of the informant's file, the judge denied Defendant also moved to suppress statements he made while the police were searching the house and the evidence seized as a result of those statements.

[158 Ill.Dec. 618] defendant's motion to quash the search warrant.

At the hearing on the motion to suppress, Sergeant Joseph D'Antonio testified that he and several other police officers executed the search warrant for defendant's house. After defendant was given the search warrant and read his Miranda rights, D'Antonio began searching the kitchen while Officer Jones and Lieutenant William Callaghan were searching the family room in the basement. Within five minutes of when they arrived, defendant made a statement to Jones. D'Antonio, Jones, and Callaghan were present in the family room when defendant made another statement. Jones opened the drawer of a desk and found drugs and money.

Jones testified that when they searched the house, defendant, his sister-in-law, and two children were present. Jones admitted he may have told defendant that his wife and sister-in-law would be arrested and the children would be sent to the Department of Children and Family Services ("DCFS") if defendant did not tell them where the drugs were. After Jones had been searching the family room for approximately 30 minutes, defendant made a statement. Jones testified he could not recall whether the desk drawer, where he found the drugs and money, was locked. However, at his deposition, Jones testified that the desk drawer was unlocked and at the preliminary hearing, he testified that the drawer was locked and defendant gave him the key to open it.

Lieutenant Callaghan testified that after he had been searching the family room for approximately six minutes, defendant entered the room with Jones and D'Antonio. Jones said defendant would show them where the drugs were. When they recovered the drugs, Callaghan continued to search the family room.

Donna Bernhardt, defendant's sister-in-law, testified that when the police executed the search warrant, she was in the house with her child and was baby-sitting defendant's child. After the police had been searching for an hour and 45 minutes, Callaghan told defendant that if he did not tell them where the drugs were, Bernhardt and his wife would be arrested and the children would be taken to the "Audie" home.

Defendant testified that he was working at the desk in the family room when the police arrived. Approximately a half hour after they entered, Callaghan and Jones told defendant that if he did not tell them where the drugs were, Bernhardt and his wife would be arrested and the children would be taken to the "Audie" home. A half hour later, Callaghan and Jones repeated the threat. Defendant then made statements to Jones because he was afraid for his wife and children.

In ruling on the motion to suppress, the judge found that Jones coerced defendant to make the statements by threatening to arrest his wife and sister-in-law and take the children to DCFS. As a result, the judge suppressed defendant's statements pertaining to where the drugs were located. However, the judge found that the drugs were admissible because the police would have found them without defendant's statements. Therefore, the statements were suppressed but the drugs were admissible at trial.

Prior to trial, defendant signed a jury waiver form, however, the judge granted the State's request for a jury trial under section 115-1 of the Code of Criminal Procedure of 1963 (Ill.Rev.Stat.1987, ch. 38, par. 115-1).

At trial, Officer Jones testified that pursuant to a search warrant for defendant's house, he recovered three bags containing a crushed green plant, one bag containing a white rock-like substance, and $54,000 in cash from a desk in the family room. Sergeant D'Antonio and Lieutenant Callaghan testified they were present when Jones found the items.

Arlene Koszyk, a criminalist from the Chicago Police Department Crime Laboratory, testified that the bags removed from defendant's house contained 942 Defendant's wife, ...