People v. Mercado

• Decision Date: 30 March 1993
• Docket Number: No. 1-91-1102,1-91-1102
• Citation: People v. Mercado, 614 N.E.2d 284, 244 Ill.App.3d 1040 (Ill. App. 1993)
• Parties: , 185 Ill.Dec. 150 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Arcadio MERCADO, Defendant-Appellant.
• Court: Appellate Court of Illinois

Page 284

614 N.E.2d 284

244 Ill.App.3d 1040, 185 Ill.Dec. 150

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v.Arcadio MERCADO, Defendant-Appellant.

No. 1-91-1102.

Appellate Court of Illinois First District, Second Division.

March 30, 1993.

Sheldon L. Banks, Chicago, for defendant-appellant.

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

Justice SCARIANOdelivered the opinion of the court:

A jury convicted defendantArcadio Mercado of possession of a controlled substance with intent to deliver in violation of section 401.1(1) of the Illinois Controlled Substances Act(Ill.Rev.Stat.1987, ch. 56 1/2, par. 1401.1(1)), and the trial judge sentenced him to 20 years in the custody of the Illinois Department of Corrections.On appeal, he advances three assignments of error: (1) whether he had sufficiently shown that the trial judge was prejudiced against him, thus warranting a substitution of judges; (2) whether the judge unduly restricted his ability to impeach the credibility of a police informant with regard to his drug addiction; and (3) whether the judge abused his discretion by sentencing defendant to a 20-year term of imprisonment.

On July 22, 1988, defendant was arrested by agents of the Illinois State police and the Federal Drug Enforcement Agency on a charge of possessing, with intent to deliver, 201.1 grams of heroin, for which he was subsequently indicted by a grand jury.In the two-year period before the action went to trial, defendant brought a series of motions including one to quash his arrest and suppress all evidence obtained as a result of his arrest, which he alleged to have been illegal, and another seeking to dismiss the indictment because it was alleged to have been returned in violation of section 112 of the Code of Criminal Procedure.(Ill.Rev.Stat.1985, ch. 38, par. 112-1 et seq.)Both motions were denied by the trial court after evidentiary hearings.

On November 28, 1990, the eve of defendant's trial, his counsel requested that an interpreter be appointed for the benefit of his Spanish-speaking client, but the court denied the request.Thereafter, counsel, alleging that the court was biased against him and his client, moved for a substitution of judges.The court replied that although it felt counsel had acted unprofessionally, it harbored no ill will toward him or defendant.Defendant then filed a written motion for a substitution of judges pursuant to section 114-5 of the Code of Criminal Procedure(Ill.Rev.Stat.1987, ch. 38, par. 114-5), and a hearing on the motion was held before Judge Reyna.After entertaining argument and reading the transcript of the proceedings which precipitated the motion, Judge Reyna denied it, finding that defendant presented insufficient evidence to demonstrate that Judge Kelley was biased against him.The case was consequently returned to Judge Kelley.

The following evidence was adduced at defendant's trial.Special Agent Guerra, a six-year veteran of the Illinois State Police, who was assigned at that time to a narcotics interdiction unit, testified that on July 22, 1990, he received word that an individual known as "Kayo," who was described as a 40-year-old Hispanic male driving a blue "Olds 88" with the license number FN 2686, would deliver a large quantity of heroin that day between 11 a.m. and 11:45 a.m. in the parking lot of a fast food restaurant on the north side of the City of Chicago.A check of the Secretary of State's motor vehicle records disclosed that an automobile matching that description was registered to an Arcadio Mercado residing at what later proved to be defendant's address.Guerra and other agents of the State police and the Federal Drug Enforcement Agency, decided to pursue this lead, and arranged a surveillance of the fast food parking lot.

At 11:17, another agent on the scene radioed Guerra, informing him that a blue "Olds 88" with the correct license number, driven by an individual matching "Kayo's" description was approaching his position.After the Olds came to a stop, Guerra and his partner parked their vehicle behind it, and Guerra approached the driver's window.With his weapon drawn, he tapped the window, informed the driver, defendant, that he was an agent of the Illinois State police, asked him why he was in the parking lot, and finally requested that he exit the vehicle.After Guerra opened the car door, defendant alighted from the vehicle and told the officer that he was at the restaurant to have lunch.

Meanwhile, Guerra's partner, Agent Glynn of the DEA conducted a search of the vehicle and discovered a plastic bag which contained a brown powdery substance, two scales calibrated for measuring grams, and a bag containing what the officer believed to be cannabis.A field test established that the powder was an opium-derivative, and a later police lab test conclusively found it to be heroin.Agent Glynn testified that while searching defendant's vehicle, he reached under the dashboard where his experience had taught him that he would be likely to find the narcotics, and it was there that he found the heroin, scales and marijuana, as well as many small plastic envelopes which are often used to package small, salable quantities of heroin.

Defendant testified that he was the assistant manager of a grocery store where he had been employed for the past 12 years.On the day of his arrest, he went to the fast food restaurant near his store to have lunch as he often did.He further testified that earlier that day, he met a man he knew as Griffin at a local gas station.There, Griffin informed him that he was experiencing difficulty with his car and asked defendant for a ride to his methadone treatment center.After defendant agreed to give him a ride, Griffin waited alone in the auto while he filled it with gasoline.Defendant disavowed any knowledge of the heroin or drug paraphernalia found in his car three hours later, and stated that Griffin was the only individual who had access to his automobile that day.On cross-examination, defendant admitted to knowing Griffin for at least a year before the incident and that he often lunched with him at the fast food restaurant where he was arrested.

The State called Charles Griffin in rebuttal.He identified defendant for the record, and denied that he met defendant at any gas station on the day in question or that he planted the heroin in his car.He also confessed to being a heroin addict.On cross-examination, defendant elicited that Griffin had been arrested for possession of "pills" and that although undergoing methadone treatment, he still persisted in using heroin periodically.The court sustained the State's objections to questions inquiring how Griffin ingested heroin and a request to show the jury whether his arms were scarred by needle marks.

After deliberation, the jury found defendant guilty as charged.At the sentencing hearing, the State, seeking more than the minimum nine-year sentence, relied upon the quantity of the heroin seized and defendant's prior drug crimes, a State conviction for possession and a Federal conviction for distribution of a controlled substance, as factors in aggravation.Defendant mentioned his work experience, and his closely-knit and deeply-rooted family ties in mitigation and as tending to show his rehabilitative capacity.The trial court, citing his two prior drug-related convictions, and commenting that seven years in Federal correctional facilities had not dissuaded defendant from committing the instant crime, found that such a record militated against finding great rehabilitative potential in him.It also referred to the need to deter defendant and others and felt that a 20-year term would take some of the luster off drug-trafficking.It therefore sentenced him accordingly, after which defendant filed a timely notice of appeal.

I.

In his first allegation of error, defendant argues that Judge Reyna mistakenly denied his section 114-5(d)motion for a substitution of judges because the judge before whom his case was ultimately tried manifested prejudice against him.Thus, he asserts that due to Judge Reyna's error, he was not tried before an impartial jurist, and must be granted a new trial.The State offers two responses: (1) that defendant has not adequately preserved this issue for appeal because the record fails to contain a report of the proceedings held before Judge Reyna; (2) that defendant did not bear his burden of establishing actual prejudice.

The State's waiver argument is unavailing.Although the initial record filed in this case omitted a report of the proceedings before Judge Reyna, the State overlooks that with leave of this court, defendant filed a supplemental record which contains a transcript of that hearing.

Section 114-5 of the Code of Criminal Procedure(Ill.Rev.Stat.1987, ch. 38, par. 114-5) provides the procedure to be used when an accused alleges that the judge before whom he is to appear is so prejudiced against him that he cannot receive a fair trial.Since defendant brought his motion seeking a substitution of Judge Kelley more than ten days after being placed on that judge's trial call, he was not entitled to an automatic change of venue, as allowed by section 114-5(a).His motion was therefore brought under the provisions of section 114-5(d) which states in pertinent part:

"[T]he State or any defendant may move at any time for substitution of judge for cause, supported by affidavit. * * *."Ill.Rev.Stat.1987, ch. 38, par. 114-5(d).

In construing this section, our supreme court has held that the burden of proving cause rests on the party asserting it.(People v. Hall(1986), 114 Ill.2d 376, 406, 102 Ill.Dec. 322, 333-34, 499 N.E.2d 1335, 1346-47;People v. Vance(1979), 76 Ill.2d 171, 178, 28 Ill.Dec. 508, 511, 390 N.E.2d 867, 870;see alsoIn re C.S.(1991), ...