People v. Goodwin, 2-89-0707

• Court: United States Appellate Court of Illinois
• Writing for the Court: NICKELS
• Citation: 207 Ill.App.3d 282,565 N.E.2d 743
• Parties: , 152 Ill.Dec. 210 The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Michael E. GOODWIN, Defendant-Appellee.
• Docket Number: No. 2-89-0707,2-89-0707
• Decision Date: 04 January 1991

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565 N.E.2d 743 207 Ill.App.3d 282, 152 Ill.Dec. 210 The PEOPLE of the State of Illinois, Plaintiff-Appellant,
v.
Michael E. GOODWIN, Defendant-Appellee. No. 2-89-0707. Appellate Court of Illinois,
Second District. Jan. 4, 1991.

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[207 Ill.App.3d 283] [152 Ill.Dec. 211] Roger T. Russell, Boone County State's Atty., Belvidere, William L. Browers, Deputy Director, Colleen M. Griffin, State's Attys. Appellate Prosecutors, Elgin, for the People.

G. Joseph Weller, Deputy Defender, Robert C. Cooper, Thomas A. Lilien, Asst. Defender, Office of State Appellate Defender, Elgin, for Michael E. Goodwin.

Justice NICKELS delivered the opinion of the court:

Defendant's bench trial for the offense of unlawful delivery of a controlled substance (cocaine) (Ill.Rev.Stat.1987, ch. 56 1/2, par. 1401(c)) began on June 14, 1989. During the State's case in chief, defendant requested the disclosure of the name of a confidential informant who was present during the alleged transaction. After hearing the arguments of counsel and considering case law on the subject of the defendant's right to disclosure, the trial court ordered that the confidential source be disclosed.

When the State stipulated that its witness, special agent Gary Cooper of the Illinois State Police, would refuse to reveal the confidential source, the trial court entertained defendant's motion to strike certain testimony of the State's witness as a sanction against the prosecution. On July 11, 1989, after considering various options, the trial court ordered stricken Cooper's testimony regarding any activity which took place in the presence of the informant at the scene of the transaction. The trial court also granted the State leave to file an interlocutory appeal. We vacate and remand.

The State appeals from this midtrial order resulting in the suppression of its witness' testimony, citing as authority Supreme Court Rule 604(a)(1) (107 Ill.2d 604(a)(1)) and People v. Flatt (1980), 82 Ill.2d 250, 45 Ill.Dec. 158, 412 N.E.2d 509. The State has also filed the required certificate of impairment. The State contends that the trial court erred in considering the midtrial motion for disclosure because it was untimely; alternatively, the State argues that the ruling to disclose the identity of the informant was erroneous on its merits because the informant's role at the scene of the transaction was limited and defendant has not demonstrated the necessity of disclosure. Concluding that the trial court should not have heard the defendant's motion to suppress the testimony[207 Ill.App.3d 284] of the officer because it was untimely made during trial, we must vacate the trial court's order and remand the cause for a continuation of the trial.

The record discloses the following additional relevant facts. On February 24, 1989, defendant filed his motion for discovery

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[152 Ill.Dec. 212] which included, among other things, a request that the State provide a list of the names and the addresses of any persons having knowledge of the offense. The State generally complied with discovery which included a list of the potential witnesses (presumably not including the confidential source) and an investigative report which summarized the circumstances of the drug transaction which took place in the J. Dubbs Bar, in Belvidere, Illinois, on the evening of November 16, 1988.

According to the report, Cooper was a special undercover agent who entered the bar with a confidential source who had agreed to introduce the agent to patrons of the bar to arrange for the purchase of cocaine. Cooper subsequently negotiated for the sale of cocaine with Ronnie Pease, the bartender. The report stated that, after the defendant entered the bar, there was a conversation between Pease and defendant. Pease then motioned to Cooper to meet with him at the south end of the bar. When Cooper walked over to the end of the bar, Pease advised him that he "had it" (the cocaine). The agent placed $50 on the bar, and Pease picked up the money and placed a small folded piece of paper into Cooper's hand. Cooper returned to the other end of the bar.

The report then indicates that, approximately two minutes later, Agent Cooper returned to the south end of the bar where defendant was still seated. Accompanying Cooper was the confidential source. Cooper asked defendant if he had a "half" for his friend (the informant). Defendant said to Cooper, "Yeah man, whatever you want." After Cooper handed him $50, defendant removed a folded piece of paper from a small plastic baggie and handed it to Cooper. The report went on to describe the contents of the folded paper as containing a white powder upon which positive field tests for cocaine were performed in the presence of other witnesses, and the report described the subsequent chain of custody of the evidence.

In April 1989, the State filed a supplemental answer to defendant's motion for discovery and included the transcript of a grand jury proceeding which alluded to the presence of a confidential source at the scene of the drug transaction. On June 1, 1989, at a hearing initially held on defendant's motion for a change of venue, a discussion took place regarding defendant's request for notes taken by police officers. At that time, defense counsel indicated that he would be filing [207 Ill.App.3d 285] motions to obtain police notes allegedly hidden in foreign or confidential files and to get specific information regarding the confidential source. A status date was set for June 13; defense counsel stated that he would file any additional motions by that date. The record discloses that no additional motion seeking the name of the confidential source was filed prior to trial.

On June 14, 1989, defendant's bench trial began. James O'Connor, a forensic scientist, testified regarding the testing and chain of custody of the State's exhibit No. 1 which included a paper fold found to contain cocaine. Patrick Young, a sergeant with the Illinois State Police, also testified regarding the chain of custody of the State's exhibit No. 1 which he had received from special agent Cooper.

Mark Henry, another special agent, testified for the prosecution regarding his involvement in the surveillance of the bar. From his car, he observed Cooper enter J. Dubbs Bar at 10:40 p.m. on November 16, 1988; he believed that Cooper was accompanied by another person but did not know the person's name. Henry did not observe what actually transpired inside the bar.

Special agent Gary Cooper testified regarding the transactions which occurred in the bar on November 16, 1988. His testimony was substantially similar to the account of the incident found in the investigative report, and it need not be repeated here. On cross-examination, defense counsel attempted to determine who entered the bar with Agent Cooper. It was established that, at the time of the transaction, the confidential source was inside the tavern, but was initially at the opposite end of the bar. However, Cooper testified that the informant was next to him when he made the second purchase from defendant. The

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[152 Ill.Dec. 213] only persons in the bar at the time were the defendant, the bartender, the informant, and Cooper.

The court opined that if the informant were a witness, he should no longer be treated as a confidential source. The State...