People v. Robinson

• Decision Date: 03 September 1993
• Docket Number: No. 1-91-1266,1-91-1266
• Citation: 624 N.E.2d 1318,252 Ill. App. 3d 1023
• Parties: , 191 Ill.Dec. 940 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Thomas ROBINSON, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1318

624 N.E.2d 1318

252 Ill.App.3d 1023, 191 Ill.Dec. 940

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Thomas ROBINSON, Defendant-Appellant.

No. 1-91-1266.

Appellate Court of Illinois First District, Sixth Division.

Sept. 3, 1993.

As Modified on Denial of Rehearing

Nov. 12, 1993.

Michael J. Pelletier, Deputy Defender, Office of the State Appellate Defender, and Andrey B. Filipowicz, Panel Atty., Chicago, for defendant-appellant.

Jack O'Malley, State's Atty. of Cook County, Chicago, Renee Goldfarb, Barbara L. Jones and Michael F. Bonaguro, Assistant State's Atty., Chicago, for plaintiff-appellee.

MODIFIED ON DENIAL OF REHEARING

Justice GIANNIS delivered the opinion of the court:

Following a jury trial, defendant was convicted on two counts of possession of a controlled substance with intent to deliver. On appeal, defendant contends that (1) his arrest was not supported by probable cause; (2) he was deprived of the right to effective assistance of counsel; (3) the State presented insufficient evidence to prove his guilt beyond a reasonable doubt; (4) the trial court erred in denying his motion for a directed verdict; and (5) the sentence imposed by the trial court was excessive.

The record reveals that defendant was arrested at approximately 1 a.m. on September 7, 1990, and was subsequently charged with two counts of possession of a controlled substance with intent to deliver. The controlled substance specified in count one was one gram or more but less than 15 grams of a substance containing cocaine. The controlled substance specified in count two was less than 10 grams of a substance containing phencyclidine (PCP).

At trial, Chicago police officer Larry Regalado testified that on September 7, 1990, he was assigned to a tactical team and was working undercover. Regalado stated that he had received two or three complaints that narcotics were being sold from the second floor apartment[252 Ill.App.3d 1026] at 107 North Menard in Chicago. In response to these complaints, Regalado and his partner, Officer Barnes, initiated surveillance of the apartment building and immediate vicinity at approximately 12:20 a.m. The officers positioned themselves on the west side of the street about one block away from the building. Regalado stated that he saw approximately 12 people enter the building within a period of 20 minutes.

Based upon his assessment that there was "heavy traffic" in the building at 1 a.m., Regalado requested assistance from another team of officers. Officer Brown and Sergeant Schweiger arrived shortly thereafter, and Regalado informed them of the previous complaints and of his observations during the surveillance. Officer Brown went to the rear of the building while Regalado and Barnes went to the front door. Regalado testified that he and Barnes were in radio communication with Officer Brown the entire time.

Regalado further testified that he and Officer Barnes went into the building up to the second floor where there were two apartments. After he knocked at the door marked 107 North Menard, Regalado was asked to identify himself. Upon announcing that he was a police officer, Regalado heard a scuffling sound come from inside, as though people were running in the apartment.

Approximately one minute later, Regalado received a radio transmission from Officer Brown who said that she had seen a black male without a shirt open a rear window and toss a plastic bag out onto the ground behind the building. About 20 or 30 seconds after Regalado heard this transmission, the door to the apartment was opened by defendant, who was not wearing a shirt.

Officer Regalado testified that once the door was opened, he informed defendant of the complaints that narcotics were being sold. Regalado testified that he observed two black females and some children inside the apartment. Regalado inquired as to whether defendant lived in the apartment, but defendant said that he did not. According to Regalado, he detained defendant in the doorway until Officer Brown was able to come around to the front of the building. When she walked up to the open door of the apartment, Brown identified defendant as the person who had thrown the plastic bag from the window, and she showed Regalado the bag. Once Officer Brown identified defendant as the person who threw the bag out of the window, defendant was arrested and transported to the police station. Regalado acknowledged that defendant was not advised of his constitutional rights until he was taken to the police station.

Regalado denied that he and Barnes entered the apartment, and he testified that defendant was not holding a baby when he opened the apartment door. Regalado also stated that there was no security gate on the door.

Subsequently, Regalado prepared the case report, and Officer Barnes prepared the arrest report. Although Regalado's signature was on the arrest report, he did not read it. Regalado acknowledged that the case report did not include facts about the surveillance or the pedestrian traffic coming in and out of the apartment. The arrest report listed defendant's address as 105 North Menard.

During cross-examination of Regalado, defense counsel attempted to utilize photographs and a diagram of the physical layout of the apartment building. The prosecutor objected, asserting that defense counsel had not disclosed the existence of these exhibits prior to trial. In addition, the prosecutor asserted that defense counsel had showed him the diagram of the apartment building on the first day of trial and showed him the photographs of the apartment immediately before opening statements. Moreover, the prosecutor asserted that defense counsel had not provided him with the names of the two witnesses until the day before trial commenced. In response to the State's objection and the trial court's admonishment, defense counsel stated that he would not use the diagram of the apartment building at trial.

Police officer Regina Brown testified that she became experienced in narcotics investigations during her eight-year assignment to a tactical unit. Brown testified that prior to the date of the defendant's arrest, she had received numerous complaints that drugs were being sold in the apartment building. In response to these complaints, Brown went to the building a day or two before defendant's arrest. Brown stated that she examined the front, side and rear of the building. Based upon these prior observations, Brown had been able to determine which of the windows were in each apartment.

On the date of defendant's arrest, Brown and Sergeant Schweiger were called to assist Regalado and Barnes. When they arrived, Brown went to the rear of the building, and Regalado and Barnes went to the front. Once Brown was in position at the rear of the building, she received a radio transmission from Regalado that he was going to the front door. After she received this transmission, Brown observed a black male with gray hair and without a shirt on, come to the rear window. As she watched, Brown saw this man open the window and drop a packet out onto the ground behind the building. The man then closed the window and disappeared from Brown's view. Brown testified that lights illuminated the back of the building and inside the second-floor apartment, and she had a clear view of the man at the window. At trial, Brown identified defendant as the man who had opened the window and dropped the packet to the ground.

Brown testified further that when the bag hit the ground, she turned on her flashlight and pointed it toward the packet which had been dropped from the second-floor window. Brown stated that she never lost sight of the packet from the time it came out of the window to the time it hit the ground. The area behind the building was concrete and was clear of any other debris. Brown retrieved the plastic bag and examined its contents. Inside the bag were some foil packets and many smaller clear plastic bags which contained a white substance. At that time, Brown suspected the white substance in the small clear plastic bags to be cocaine, and she believed that the foil packets contained PCP. Brown then made a radio transmission to Regalado and Barnes to inform them of her observations, including a physical description of the person who had tossed the bag out of the window. After doing so, Brown immediately went to the front of the building and walked up the stairs to the second-floor apartment.

Brown arrived at the door to the apartment about two minutes later and observed Regalado and Barnes standing next to the doorway with defendant. Brown told the other officers that defendant was the person she had seen throw the packet out of the rear window. Brown then showed the other officers the packet which she had recovered from the ground behind the building.

Mr. Jose Mantilla was called as an expert witness for the State and testified that he was a forensic chemist employed by the Chicago police department. Mantilla stated that he inventoried and examined the plastic bag recovered by Brown. The foil packets contained crushed green plant material, and the 36 small plastic bags contained white rocky substance. The plastic bag also contained four clear plastic bags which were empty.

Mantilla testified that he randomly selected and weighed two of the four foil packets. The total weight of these packets was 1.1 grams. He then tested the crushed green plant material found in the foil packets, and the results of these tests confirmed that the substance contained PCP. Upon weighing the remaining packets, Mantilla determined that their aggregate weight was 2.2 grams. Mantilla thereafter weighed three of the 36 plastic bags containing the white rocky substance. These three bags weighed a total of .23 grams. Based upon this information, Mantilla estimated that the aggregate weight of the 36 plastic bags was 2.8 grams. Mantilla then tested the substance contained in...