People v. Jackson

• Decision Date: 16 November 2017
• Docket Number: No. 1–15–1779,1–15–1779
• Citation: 2017 IL App (1st) 151779,91 N.E.3d 472
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Arlandus JACKSON, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

2017 IL App (1st) 151779

91 N.E.3d 472

The PEOPLE of the State of Illinois, Plaintiff–Appellee,

v.Arlandus JACKSON, Defendant–Appellant.

No. 1–15–1779

Appellate Court of Illinois, First District, FOURTH DIVISION.

November 16, 2017

Michael J. Pelletier, Patricia Mysza, and Tomas G. Gonzalez, of State Appellate Defender's Office, of Chicago, for appellant.

Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg and Margaret M. Smith, Assistant State's Attorneys, of counsel), for the People.

PRESIDING JUSTICE BURKE delivered the judgment of the court, with opinion.

¶ 1 Following a bench trial, defendant Arlandus Jackson was convicted of possession of a controlled substance with intent to deliver and sentenced to four years' imprisonment. On appeal, defendant contends that the trial court erred in conducting an in camera hearing on his pretrial motion to disclose the surveillance location from where a police officer allegedly observed him commit the offense and erred in finding that he was not entitled to disclosure of the surveillance location. For the reasons that follow, we reverse defendant's conviction and remand the matter for a new trial.

¶ 2 I. BACKGROUND

¶ 3 The police arrested defendant after an officer conducting undercover surveillance observed him engage in three suspected drug transactions. None of the alleged buyers were stopped. The State charged defendant with one count of possession of a controlled substance (less than one gram of heroin) with intent to deliver. 720 ILCS 570/401(d) (West 2012). In the State's pretrial answer to discovery, it stated that defendant had not been subject to electronic surveillance. Defendant subsequently filed a motion to compel disclosure of the police officer's surveillance location, arguing that disclosure was necessary because the State's case against him hinged on the ability of the officer to observe his alleged drug transactions. Defendant contended that disclosure was the only means to ensure that he could investigate the officer's ability to observe his alleged actions and effectively exercise his constitutional right to confrontation. The State did not file a written response to defendant's motion.

¶ 4 On October 8, 2014, after defendant's case was called, the trial court immediately held an in camera hearing with Chicago police officer John Frano and an assistant State's Attorney, outside the presence of defendant and defense counsel. In the hearing, the assistant State's Attorney examined Frano, asking him several questions about the day in question, including some unrelated to his surveillance location. Frano generally discussed his surveillance location, including his approximate distance from defendant, whether his location was on an occupied or unoccupied property, and his ability to observe defendant from his location. Frano, however, did not reveal his exact surveillance point. The court also examined Frano, asking him several questions, but similarly did not ascertain his precise surveillance location.

¶ 5 At the conclusion of the hearing, still in the presence of only Frano and the assistant State's Attorney, the trial court indicated that it would deny defendant's motion "based on the officer's testimony" and would have the hearing transcribed and sealed.¹ Following the hearing, and in the presence of both parties, the court found that:

"based on the testimony of the officer that there are public safety concerns involved here, and also that given the details of the number of officers present and the facts that were relayed, I do not feel that the defendant is required to know this information in order to fully be able to represent [his] interests at trial. I certainly will allow full cross-examination for distance, elevation, lighting, weather conditions, and any obstruction. So I don't feel the disclosure is necessary."

The court accordingly denied defendant's motion to compel disclosure, and his case proceeded to a bench trial.

¶ 6 At trial, the State presented the testimony of Frano as well as Chicago police officers Ivan Ramos and Marvin Bonnstetter. The evidence revealed that, on April 21, 2013, Frano was working with Ramos, Bonnstetter, and Officer Kevin Garcia on a drug investigation. Frano was the lone surveillance officer while Ramos, Bonnstetter, and Garcia were enforcement officers. Frano dressed in plainclothes and conducted surveillance on the 700 block of North Trumbull Avenue.

¶ 7 Frano testified that, at around 6:40 p.m., while it was getting dark outside, he observed a man, identified in court as defendant, standing on the sidewalk in front of a residence at 734 North Trumbull Avenue. Another man approached defendant, engaged him in a conversation and handed him an unknown amount of money. Defendant walked into a narrow gangway adjacent to the residence, proceeded toward the rear of the residence, reached down, and removed an item from the ground. He returned to the sidewalk in front of the residence and handed the man the item, who then left the area. Frano observed two more individuals engage in identical transactions with defendant. Based on these transactions, which Frano testified he had an unobstructed view of from approximately 50 to 100 feet away, he believed that defendant was selling drugs. Although Frano had binoculars, he did not "know exactly when [he] was using [them] for that particular situation." During Frano's cross-examination, defense counsel asked him if he was conducting surveillance from an "elevated" position, but the trial court sustained the State's objection on the basis of "the point of surveillance."

¶ 8 After witnessing the third suspected drug transaction, Frano called for Ramos to pick him up, left his surveillance post, and instructed Garcia and Bonnstetter to detain defendant. Frano lost sight of defendant for 30 to 40 seconds but eventually observed him being detained by Garcia and Bonnstetter approximately 150 feet north of 734 North Trumbull Avenue. Frano was certain that defendant was the same individual he had observed during his surveillance.

¶ 9 Bonnstetter testified that he detained defendant, who matched the description relayed to them by Frano of the individual he had observed during his surveillance. Meanwhile, Frano and Ramos went to the rear of the gangway adjacent to the residence at 734 North Trumbull Avenue. There, they both observed a white strip of tape with four tinfoil packets attached, each containing suspect heroin. Ramos recovered the packets. Bonnstetter subsequently arrested defendant and found $175 on him.

¶ 10 At the conclusion of the State's case, the parties stipulated that, if called as a witness, a forensic chemist at the Illinois State Police crime laboratory would have testified that the contents of one of the four tinfoil packets tested positive for heroin and weighed 0.1 gram.

¶ 11 Defendant did not testify or call any witnesses on his behalf.

¶ 12 During closing arguments, defense counsel argued that, because Frano observed the individual conducting the suspected drug transactions from 50 to 100 feet away at a time when it was getting dark outside, his ability to observe was "diminished." Counsel further highlighted that, after Frano left his surveillance post, he lost sight of the individual he saw engage in the transactions. Altogether, counsel contended there was reasonable doubt that defendant was the individual Frano observed during his surveillance.

¶ 13 In rebuttal, the State contended that Frano positively identified defendant as the individual who conducted the transactions, and although Frano lost sight of defendant after he broke surveillance, he did so for a mere 30 seconds.

¶ 14 The trial court ultimately found defendant guilty of possession of a controlled substance with intent to deliver, observing that Frano testified "very clear and detailed" about witnessing the three drug transactions involving defendant. Although the court acknowledged that Frano lost sight of defendant for 30 to 40 seconds, it did not find this "problematic" to the State's case. It additionally rejected any notion that Frano had a "diminished ability to observe" the transactions, instead finding that, based on his testimony, his view was "clear and unobstructed." Following defendant's unsuccessful motion for a new trial, the court sentenced him to four years' imprisonment. This appeal followed.

¶ 15 II. ANALYSIS

¶ 16 Defendant contends that the trial court erred in denying his pretrial motion to compel disclosure of Officer Frano's surveillance location for two reasons. First, he argues the court improperly conducted an in camera hearing on the matter when it failed to ascertain Frano's exact surveillance location. Second, defendant argues that, because Frano's testimony was the linchpin of the State's case against him, the court erroneously ruled that his surveillance location was privileged.

¶ 17 Following the parties' submission of their briefs, we directed them to address the issue of the in camera hearing being conducted in the presence of the State but not the defense. Both parties subsequently filed supplemental briefs on this issue.

¶ 18 A. Forfeiture

¶ 19 Initially, the State argues that defendant forfeited the issue for review. The State asserts that, while he raised the issue of the surveillance location privilege in a pretrial motion, he did not include a claim of error in his posttrial motion concerning "the court sustaining the people's objection to defense counsel's cross-examination of Officer Frano about whether the surveillance location was in an elevated position." It is well-settled that, in order to avoid forfeiting a claim of error for review, the defendant must either raise the issue in a pretrial motion or object at trial, and also raise it in a posttrial motion. People v. Boclair , 129 Ill. 2d 458, 476, 136 Ill.Dec. 29, 544 N.E.2d 715 (1989). Here, the State's forfeiture argument is without merit, as defendant's contention on appeal directly concerns the trial...