People v. Oliver, 2-05-0216.

• Decision Date: 07 November 2006
• Docket Number: No. 2-05-0216.,2-05-0216.
• Citation: 307 Ill.Dec. 38,859 N.E.2d 38
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Nikkolas W. OLIVER, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 38

859 N.E.2d 38

307 Ill.Dec. 38

The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Nikkolas W. OLIVER, Defendant-Appellee.

No. 2-05-0216.

Appellate Court of Illinois, Second District.

November 7, 2006.

Martin P. Moltz, Deputy Director, Gregory L. Slovacek, States Attorneys Appellate Prosecutor, Elgin, for the People.

Thomas A. Lilien, Deputy, and Bruce Kirkham (Court-appointed), Office of the State Appellate Defender, Elgin, for Nikkolas W. Oliver.

Justice HUTCHINSON delivered the opinion of the court:

Defendant, Nikkolas W. Oliver, was indicted on two counts of unlawful possession of a controlled substance with the intent to deliver (720 ILCS 570/401(c)(2) (West 2004)) (counts I and III) and one count of unlawful possession of a controlled substance (720 ILCS 570/402(c) (West 2004)) (count II). He moved to dismiss all three counts of the indictment, contending that the sole witness to testify before the grand juries presented false and misleading testimony. The trial court dismissed counts I and III. The State timely appeals (see Official Reports Advance Sheet No. 4 (February 16, 2005), R. 604(a), eff. February 1, 2005). We affirm.

On September 22, 2004, defendant was indicted for unlawful possession of a controlled substance with the intent to deliver (count I) and unlawful possession of a controlled substance (count II). Before the grand jury, Officer Micah Cress testified as follows:

"Q. State your last name, spell your last name for the record?

A. Detective Micah Cress, C-r-e-s-s.

Q. You're employed by the North Chicago Police Department, is that correct?

A. That's correct.

Q. Directing your attention now to an incident that occurred on or about August 30, 2004, were you and other officers watching an apartment due to some prior drug activity that had been occurring there?

A. Yes, we were.

Q. Okay. And you observed the defendant who you identified as Nikkolas Oliver make several hand to hand transactions with other individuals, is that correct?

A. That's correct.

Q. The defendant got in a car, a team of officers stopped him, the defendant was found to have 7 grams of a field tested positive substance being cocaine, is that correct?

A. That's correct.

Q. An additional .2 grams field tested positive substance being cocaine was also recovered under the seat in his car, is that correct?

A. That's correct.

Q. Obviously the hand to hand transactions that officers observed would lead you to believe that the cocaine was for delivery, is that correct?

A. That's correct.

Q. And that was here in North Chicago?

A. Yes, it was."

No further evidence was presented, and the grand jury posed no questions.

On October 14, 2004, defendant moved to quash his arrest and suppress the evidence seized. At a hearing on November 12, 2004, Officers William Bell and Luis Rivera testified. Officer Bell stated that prior to August 30, 2004, the police received numerous calls informing them that individuals were selling drugs on the 1400 block of Hervey Avenue in North Chicago. Because of these complaints, Officers Bell and King were assigned to survey the area on August 30, 2004.

Officers Bell and King began their surveillance on that day at approximately 9:30 p.m., positioning themselves approximately 45 to 50 yards away from the apartments located on the 1400 block of Hervey. Although it was dark outside at that time Officer Bell stated that the lights in the apartment building located at 1435 Hervey WERE ON AND THAT THE STREETLIGHTS IN THE alley next to that building were illuminated. While surveying the area, Officers Bell and King observed defendant and another man, Jason Byrd, sitting on the porch of the apartment building located at 1435 Hervey. Byrd was drinking from a Hennessy bottle.

At approximately 10:30 p.m., a man approached the building from the street, and defendant met with this man. The man tendered something to defendant, which defendant placed in his pocket. Defendant then walked toward the alley, returning 10 to 15 seconds later with something that he gave to the man. The man placed the item in his pocket and walked off in the same direction from which he had come. Although Officer Bell knew that defendant and the man exchanged something during their encounter, Officer Bell testified that he could not see what was passed between them. Twenty minutes later, two different men approached, and defendant met with them. Each man gave defendant something, defendant placed those objects in his pocket, and then defendant walked toward a nearby fence where he retrieved something. Fifteen seconds later, defendant returned and gave each of the two men an item. The men placed what they had received in their pockets and departed. Although Officer Bell believed, based on his training and experience, that defendant was involved with selling drugs that night, he admitted that he never saw any narcotics exchanged.

Ten minutes later, defendant and Byrd drove away in a vehicle parked in the alley. Officers Bell and King maintained their surveillance of the apartment building, relaying what they observed to other surveillance units in the area.

Officer Rivera testified that he was on surveillance detail in the 1400 block of Hervey on August 30, 2004, but he did not observe what transpired in front of 1435 Hervey. Rather, Officer King told him what he and Officer Bell had seen. After receiving that information, Officer Rivera followed defendant and Byrd when they left the alley, stopping defendant's vehicle after observing Byrd drinking from a Hennessy bottle. While approaching the vehicle, Officer Rivera saw defendant reaching toward his waistband. Officer Rivera drew his weapon, advised defendant to keep his hands where they could be seen, and saw defendant reach toward the floorboard of the vehicle. Officer Rivera then opened the driver's-side door and attempted to pull defendant from the vehicle. A struggle ensued, defendant was handcuffed, and, during a pat-down search, a clear plastic bag containing a substance resembling crack cocaine fell out of defendant's pant leg. Based on these facts, the trial court denied defendant's motion to quash his arrest and suppress the evidence seized.

On December 29, 2004, defendant was indicted on a second count of unlawful possession of a controlled substance with the intent to deliver (count III). Before the grand jury, Officer Cress testified as follows:

"Q. Just for the record this is an additional count to a case that was previously indicted by another Grand Jury. Could you please state your name and spell it for the record?

A. Officer Micah Cress, C-r-e-s-s.

Q. And you're employed by the North Chicago Police Department?

A. Yes, I am.

Q. Directing your attention to August 30th of 2004 was the North Chicago Police Department watching an apartment due to some prior drug activity that had been occurring there?

A. That's correct.

Q. And the defendant, Nikkolas Oliver, was observed making several hand to hand transactions with individuals?

A. That's correct.

Q. The defendant then got into a car and drove away and was later stopped by other members of the North Chicago Police Department?

A. That's correct.

Q. And he was found to have in his possession 10.07 grams of cocaine?

A. That's correct.

Q. And that was tested and weighed at the Northern Illinois Police Crime Laboratory?

A. Yes, it was.

Q. Additionally, there was an amount of cocaine found under the seat of his car which weighed .19 grams and tested positive for cocaine?

A. That's correct.

Q. And the hand to hand transactions as well as the amounts of the cocaine would lead you to believe that was for delivery purposes?

A. That's correct.

Q. And that occurred in North Chicago, Lake County, Illinois?

A. Yes, it did."

The assistant State's Attorney, who was the same prosecutor who appeared at the hearing on defendant's motion to quash and suppress, presented no additional evidence, and the grand jury asked no questions.

In January 2005, defendant moved for a bill of particulars, asking whether the charges of possession with the intent to deliver arose from the incidents in front of 1435 Hervey or the evidence that Officer Rivera obtained after the traffic stop. The State responded that the cocaine that defendant was charged with possessing with the intent to deliver was that found after the traffic stop. However, the State clarified that it would use the evidence obtained during Officers Bell's and King's surveillance to prove circumstantially that defendant possessed the cocaine with the intent to deliver.

Soon afterward, defendant moved to dismiss count III of the indictment, contending that Officer Cress's testimony before the grand jury was false and misleading. At the hearing on the motion, the State admitted that Officer Cress was not present at the surveillance of 1435 Hervey. Rather, Officer Cress's testimony was based on his examination of Officer Bell's police report. The trial court considered the transcripts of Officer Cress's testimony and the testimony on defendant's motion to quash and suppress. The trial court then dismissed count III of the indictment, noting that the State engaged in a "sloppy way of presenting matters before the Grand Jury" and that the "[c]ourt has had an opportunity to comment on that before." Although there were other problems with Officer Cress's testimony, the trial court found most troubling the fact that Officer Cress testified that the hand-to-hand transactions would lead him to believe that cocaine was being delivered, yet Officer Bell, who observed the hand-to-hand transactions and prepared the report from which Officer Cress testified, did not see what was passed between defendant and the other men.

Defendant then moved to dismiss counts I and II of the indictment. The trial court dismissed count I on the same grounds on which it dismissed count III. The State timely appeals, arguing that its conduct before the grand...