People v. McCoy

• Decision Date: 19 March 1998
• Docket Number: No. 1-96-4306,1-96-4306
• Citation: 295 Ill.App.3d 988,230 Ill.Dec. 78,692 N.E.2d 1244
• Parties: , 230 Ill.Dec. 78 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Robaire McCOY, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1244

692 N.E.2d 1244

295 Ill.App.3d 988, 230 Ill.Dec. 78

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Robaire McCOY, Defendant-Appellant.

No. 1-96-4306.

Appellate Court of Illinois First District, Fourth Division.

March 19, 1998.

Haskell & Perrin, Chicago (Kevin W. Doherty; Rein F. Krammer, of counsel), for Defendant-Appellant.

Richard A. Devine, State's Attorney, County of Cook, Chicago (Renee Goldfarb; Janet Power Doyle; Jennifer L. Wilson, of counsel), for Plaintiff-Appellee.

Presiding Justice CERDA delivered the opinion of the court:

Following a bench trial, defendant, Robaire McCoy, was convicted of possession of a controlled substance with the intent to deliver (720 ILCS 570/401 (West 1992)) and possession of cannabis with the intent to deliver (720 ILCS 550/5 (West 1992)). He was sentenced to concurrent sentences of six years' and four years' imprisonment. On appeal, defendant asserts that (1) the trial court erred when it allowed the State to amend the information; (2) his right to a speedy trial was violated; (3) he was not proven guilty beyond a reasonable doubt; (4) the trial court erred when it denied him a Franks hearing; (5) his statement was involuntary; and (6) the trial court erred when it did not allow certain testimony. For the following reasons, we affirm.

On October 11, 1993, Chicago police detective Robert O'Neill filed a complaint requesting a warrant to search the person of a black man named Tony, who was approximately 25 years old, 5 foot 10 inches tall, and 320 pounds, and the second floor apartment at 9221 South Laflin Street, Chicago. In his complaint, Detective O'Neill stated that an informant told him that the informant was at the apartment on October 10, 1993. After Tony let the informant into the apartment, he and Tony discussed the sale of white heroin. Tony went to a different part of the apartment and returned with a paper bag, from which he removed a large plastic bag containing a white powder and an electronic scale. After weighing a portion of the white powder, Tony gave it to the informant, who gave Tony $40 in return. The informant tested the powder on his tongue and determined it to be heroin. O'Neill further stated that he had known the informant for at least one year. During the previous six months, the informant had given O'Neill information three times, which led to the recovery of heroin, cocaine, and unlawfully possessed firearms.

According to O'Neill's testimony at the hearing to suppress defendant's statements, he and five other police officers went to the second floor apartment at 9221 South Laflin Street at 9 p.m. on October 11, 1993. When defendant answered the door, O'Neill learned that he was Tony, then gave him the search warrant. Detective Dennis Cullom advised defendant of his Miranda rights. Tracy Pitts, the mother of defendant's son, was 15 to 20 feet away. O'Neill denied that he or any other police officer threatened to arrest Pitts or take her three-year-old son to the Department of Children and Family Services (DCFS) if defendant did not confess to criminal activity. O'Neill spoke to Alicea McCoy, defendant's mother, when she came to the apartment door during the search, but did not allow her into the apartment. O'Neill denied ever telling McCoy that Pitts might be arrested and her son taken to the DCFS.

Chicago police detective Dennis Cullom and Chicago police officer Steven Worshum testified that neither they nor any other police officer in their presence threatened to arrest Pitts or take her son to DCFS if defendant failed to confess to criminal activity.

Tracy Pitts testified that she answered the door when the police arrived. Defendant was sitting in the living room, playing a video game. Their three-year-old son was also present. The police officers told Pitts to sit in the living room and asked defendant for his name. Pitts did not see anyone hand defendant the search warrant and did not hear anyone give defendant his Miranda rights. According to Pitts, the police officers threatened to arrest her and take her son away if defendant did not tell them if he had any weapons or drugs in the apartment.

Alicea McCoy testified that she lives on the third floor of 9221 South Laflin Street. On October 11, 1993, she went to her son's apartment after hearing noises, but the officer at the door would not let her enter the apartment. In the hallway, Officer O'Neill told McCoy that they were going to arrest Pitts and call DCFS to take her grandson if she did not talk with her son about cooperating with the police.

Defendant testified that he was seated in front of the television when Pitts answered the door to the police. They told her to sit on the sofa, then began questioning defendant. They did not give him a copy of the search warrant or advise him of his Miranda rights, but did ask if there were weapons or narcotics in the apartment. After defendant's mother came to the apartment, defendant spoke with her in the hallway. There, O'Neill threatened to arrest Pitts and take her son to DCFS if defendant did not cooperate with them.

Based on its determination that the State's witnesses were more credible than defendant's witnesses, the trial court found that Officer Cullom advised defendant of his Miranda rights before any interrogation occurred. The court also found that defendant's statements were not involuntary due to threats or coercion by the police. As a result, the court denied defendant's two motions to quash statements.

On January 24, 1996, the State asked that they be allowed to amend count 1 of the information to read "heroin" instead of "cocaine" because "cocaine" was a misprint. The trial court allowed the amendment on the basis that it was a formal defect.

At trial, Officer Worshum testified that he searched the bedroom located off the dining room. In the closet, he found suspected marijuana, white powder, some electronic scales containing white powder residue, a strainer with brown residue, a box of clear sandwich bags, numerous zip-lock bags, empty capsules, a small silver spoon, approximately 50 small silver tinfoil packets, small red plastic envelopes, and three bottles of Dormin, one of which contained pills. In the dresser, Worshum found an Illinois State I.D. card, an electric bill, a gas bill, a Chicago parking ticket notice, and an Illinois Environmental Protection Agency notice, all with defendant's name and address. According to Worshum, there was large male clothing in the dresser and closet in the bedroom. The clothing would be suitable for defendant, who was about 5 feet 11 inches tall and over 270 pounds.

There was a stipulation that Arthur Kruski, a Chicago Police Department forensic chemist, analyzed the contents of the inventory. It contained 532.6 grams of cannabis and 45.78 grams of heroin.

Alicea McCoy testified that defendant had a roommate, Reginald Robinson, on October 11, 1993. McCoy stated that defendant resided in the front bedroom, near the front door, and Robinson resided in the middle bedroom, off the dining room.

Defendant testified that his bedroom was off the front door and Robinson's bedroom was off the dining room. At the time of trial, Robinson was in a federal prison in Duluth, Minnesota. Defendant described Robinson as one-half inch taller and 100 pounds lighter than himself.

After closing arguments, the trial court found defendant guilty of possession of heroin and marijuana with intent to deliver. The court found that defendant had constructive possession of the contraband confiscated, based on the several pieces of defendant's identification and large male clothing found in the bedroom where the drugs and paraphernalia were found. The court determined that the clothes were defendant's, considering the disparate sizes of defendant and Robinson. Subsequently, defendant was sentenced to concurrent sentences of six years' imprisonment for the heroin conviction and four years' imprisonment for the marijuana conviction.

Defendant's first assertion is that the trial court erred when it allowed the State to amend the information from possession of cocaine with an intent to deliver to possession of heroin with an intent to deliver. The State contends that the change was a formal change, but defendant argues that it was a substantive change.

Although a trial court's determination as to whether a charging instrument complied with statutory requirements is subject to de novo review (People v. Wilkinson, 285 Ill.App.3d 727, 732, 221 Ill.Dec. 1, 674 N.E.2d 794 (1996)), an abuse of discretion standard is used when reviewing the trial court's decision to allow or deny an amendment to the charging instrument (People v Wallace, 106 Ill.App.3d 580, 583, 62 Ill.Dec. 350, 435 N.E.2d 1322 (1982)).

Section 111-5 of the Criminal Code permits a charging instrument to be amended to correct formal defects, including a miswriting. 725 ILCS 5/111-5 (West 1996); People v. Dunskus, 282 Ill.App.3d 912, 916, 218 Ill.Dec. 306, 668 N.E.2d 1138 (1996); People v. Nemecek, 277 Ill.App.3d 243, 246, 213 Ill.Dec. 876, 660 N.E.2d 133 (1995). The amendment is permissible if the change is not material or does not alter the nature and elements of the offense charged. Dunskus, 282 Ill.App.3d at 916-17, 218 Ill.Dec. 306, 668 N.E.2d 1138; Nemecek, 277 Ill.App.3d at 246, 213 Ill.Dec. 876, 660 N.E.2d 133. A formal amendment is warranted especially where there is no resulting surprise or prejudice to the defendant or where the record shows that he was otherwise aware of the actual charge. Dunskus, 282 Ill.App.3d at 917, 218 Ill.Dec. 306, 668 N.E.2d 1138. If an amendment to an information corrected a formal defect, no reverification is required. People v. Hewitt, 212 Ill.App.3d 496, 504, 156 Ill.Dec. 636, 571 N.E.2d 223 (1991).

This case is similar to People v. Flores, 250 Ill.App.3d 399, 190 Ill.Dec. 273, 621 N.E.2d 142 (1993), on which the State relies. In Flores, the defendant was charged...