People v. Mitchell, 83-2389

• Decision Date: 27 November 1984
• Docket Number: No. 83-2389,83-2389
• Citation: 472 N.E.2d 114,84 Ill.Dec. 364,129 Ill.App.3d 189
• Parties: , 84 Ill.Dec. 364 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Thomas E. MITCHELL, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 114

472 N.E.2d 114

129 Ill.App.3d 189, 84 Ill.Dec. 364

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Thomas E. MITCHELL, Defendant-Appellant.

No. 83-2389.

Appellate Court of Illinois,

First District, Second Division.

Nov. 27, 1984.

Sam Adam and Clarence Burch, Chicago, for defendant-appellant.

Richard M. Daley, State's Atty. of Cook County, Michael E. Shabat, David A. Cuomo and Bernard J. Murray, Asst. State's Attys., Chicago, for plaintiff-appellee.

DOWNING, Justice:

Defendant, Thomas E. Mitchell, was indicted on two counts of delivery of a controlled substance (Ill.Rev.Stat.1979, ch. 56 1/2, par. 1401(c)), and convicted by a jury of possession of a controlled substance (Ill.Rev.Stat.1979, ch. 56 1/2, par. 1402). The jury found him not guilty of delivery. On appeal, defendant raises the following issues: (1) whether he was denied a fair trial because the State was allowed to introduce evidence of other crimes allegedly committed by him; (2) whether the jury was erroneously instructed on the offense of possession of a controlled substance; (3) whether the trial court properly excluded defense evidence which was offered to show a motive of the State's witness to fabricate; and (4) whether the trial court wrongfully allowed impeachment of a defense witness.

Defendant, who at the time relative to the events involved in this case was a police officer with the Chicago Police Department, was indicted on two counts of delivery of less than 30 grams of cocaine which allegedly occurred on July 16, 1981. On motion of defendant, one count was dismissed.

William A. Haley, Special Agent with the Illinois Division of Criminal Investigations, testified on behalf of the State that on the evening of July 15, 1981, he was introduced to Maurice Nix by Sergeant Eddie Green of the Internal Affairs Division of the Chicago Police Department. Haley also stated that Nix had felony charges pending against him. Shortly after midnight, Haley went with Nix to Madam Andre's Lounge on North Wells Street in Chicago. They then proceeded to the Get Down Lounge, also located on North Wells, where they saw defendant and his partner, Officer Lawrence Terry. After being introduced to defendant and Terry, Haley said that he "wanted to cop some girl for the head." Haley testified that "cop" means purchase and "girl" is slang for cocaine. Nix asked defendant and Terry if they had any, and they responded "no." Defendant, however, remarked that he would attempt to locate some "girl" and exited the lounge. Haley later saw defendant outside and inquired whether he had located any cocaine. Defendant pointed out a male named "Boston" as someone who could take care of getting anything Haley wanted. Haley and Nix then conversed with Boston. Thereafter, Haley returned to defendant and asked him if he could get Boston's price lowered. Defendant agreed to talk to Boston, which he did.

Boston then walked into the lounge, followed by Haley and Nix. Haley gave Nix $100 in cash and Nix approached Boston in the rear of the lounge. Haley walked to the rear whereupon Nix handed him three paper packages of purported cocaine. Boston obtained change then gave Nix $14, which Nix handed to Haley. At that time it was approximately 2:25 a.m. and Haley exited the lounge.

After meeting with members of his surveillance team for a few minutes at a different location, Haley returned to Madam Andre's Lounge. There he observed defendant, Terry, and a man introduced as defendant's cousin. Haley told defendant that the "girl" was good and defendant responded that it was supposed to be. After Terry and defendant's cousin left, Haley asked defendant for more cocaine. Defendant commented that Boston had already departed. Haley then observed Nix and defendant conversing and later followed Nix and defendant into the restroom area and had a conversation with defendant. Haley removed $80 from his pocket and handed it to defendant. Haley and Nix then entered the restroom. As they were leaving, they observed defendant walking towards them. They returned to the restroom, waited for defendant to enter, and then started to leave again. Nix talked to defendant outside of the restroom and motioned to Haley to go back in. As Haley did, he turned and saw defendant hand Nix four tin-foil packets. Nix turned around, took two steps, and handed the packets to Haley. Nix and Haley then returned to the restroom and closed the door.

Haley placed the packets into his pants pockets and Nix existed. As Haley was leaving, he was approached by defendant whom he told that the packages looked good. Thereafter, he told defendant that he was going to pay him a finder's fee, and defendant stated that he did not want money, but wanted some of the package Haley had just received. Haley gave defendant one of the packets and left the restroom area. Haley also testified as to the chain of custody of the remaining three packets. On cross-examination, Haley testified that defendant never gave him any cocaine directly on July 16, but only that he received the cocaine from Boston and Nix.

During defendant's case, Sergeant Green testified that he had spoken to Nix on numerous occasions, the latest being in March of 1983, two months prior to trial. Green admitted that on July 16, he knew of Nix's pending drug charge. The State's objections to queries by defense counsel as to Green's knowledge of the disposition of the drug possession charge were sustained. On cross-examination, Green stated that he had a warrant for Nix's arrest, and that he had unsuccessfully been trying to bring Nix in as a witness for the trial.

Defendant next presented Officer John Suddie of the Chicago Police Department who related that on March 7, 1981 he arrested Nix. In response to the State's objection, Suddie was not allowed to testify about the reason for Nix's arrest and whether he was charged with an offense. At a side-bar, defense counsel made an offer of proof and submitted a complaint for preliminary hearing wherein Suddie stated that Nix committed the offense of possession of a controlled substance, cocaine. Officer James McKeon of the Chicago Police Department was called next and he stated that on March 5, 1981, he arrested Nix. Objections to defense counsel's repeated questions regarding whether any charges were filed against Nix were sustained.

The next defense witness was Officer Lawrence Terry, defendant's partner. He stated that he was familiar with the Get Down and Madam Andre's Lounges for both official and non-official reasons. Terry said he knew Nix as the bartender and occasional patron of the Get Down Lounge, and never had any dealings with him other than Nix serving him a drink or lightly conversing with him. Terry also denied knowing William Haley or a person named Boston and denied engaging in any conversation about cocaine on July 16. During cross-examination, Terry stated that he probably was in Madam Andre's Lounge during mid-July, but he never met anyone that was introduced to him by Nix. Further, he did not remember any conversation in Madam Andre's with anyone who was with Nix concerning cocaine usage. Terry was suspended from the police department in early September 1981 for alleged delivery of cocaine to Haley on July 17, 1981. He claimed that he did not see any cocaine at the Get Down Lounge on July 16 or 17 of 1981.

Defendant testified on his own behalf and denied any involvement in the drug conversations or drug dealings in question. He stated that some time in the summer of 1981, Nix was introducing Haley at the two lounges as Nix's cousin. Outside of the presence of the jury, defendant made an offer of proof that Nix had offered to be an informant for defendant in order to gain leniency on his two felony charges. Defense counsel also stated that a court reporter would testify as to her notes of proceeding for August 18, 1981 when the State nolle prossed Nix's charges. An assistant State's Attorney would also testify that Nix's charges were dropped as a result of his undercover work for the police. The court refused to allow this in evidence.

The jury found defendant not guilty of the offense of delivery of cocaine and guilty of the offense of possession. Defendant received a two-year prison sentence and was fined $5,000.

I.

Defendant strongly urges that he was denied a fair trial because the State was allowed to introduce highly prejudicial testimony that was irrelevant to the charge against him.

The offense for which defendant was indicted concerned activities which allegedly took place on July 16, 1981. Special Agent Haley testified as to the manner in which defendant obtained cocaine for him on July 16. Over defendant's objections, Haley was allowed to testify that on July 23, he had a conversation with defendant and Nix about the previous July 16 meeting. Defendant stated that there were questions being asked in the area about who Haley was and that if "there was any heat to come down" it would be on Nix.

During defendant's direct examination, he denied any involvement in the alleged drug deal of July 16. On cross-examination, the State asked him about alleged conversations with Haley regarding drug deals on July 17 and July 23. Defendant was asked if "in July of 1981 or in fact any time prior thereto you never had any contact with cocaine in the presence of Maurice Nicks [sic] or Agent Haley?" He responded in the negative. The prosecutor further asked defendant about alleged activities at the Get Down Lounge on December 18, 1980, at the Superstar Disco on February 25, 1981 and September 25, 1981, and at Madam Andre's on April 9, 1981 and February 20, 1982. Defendant denied knowledge of the incidents and stated that he never uses cocaine and did not know Ernest Boston. Defendant continually objected to the line of questioning and made motions for mistrial, all of which were denied.

As a rebuttal witness, the State presented Sergeant Eddie Green of the Internal...