People v. Ussery
| Decision Date | 30 December 1974 |
| Docket Number | No. 73--136,73--136 |
| Citation | 24 Ill.App.3d 864,321 N.E.2d 718 |
| Parties | PEOPLE of the State of Illinois, Appellee, v. Frances Sarah USSERY, Appellant. |
| Court | United States Appellate Court of Illinois |
Howard T. Savage, Savage, Frazin, Spencer & Stewart, Chicago, for appellant.
Edward P. Drolet, State's Atty., Kankawee, for appellee.
The Defendant, Frances Sarah Ussery, was indicted for the offense of Possession of Cannabis, in the amount in excess of 30 grams and not to exceed 500 grams. After a bench trial she was found guilty and was sentenced by the Circuit Court of Kankakee County to a term of from 1 to 3 years. She appeals contending: 1. that she did not receive the assistance of counsel to which she was constitutionally entitled and 2. that the court denied her the right to be represented by counsel of her own choice.
On August 20, 1972, at about 4 P.M., Herbert Pope, a Kankakee County Deputy Sheriff, received a call from his office to go to the Munyon Road in Pembroke 'where there was supposed to be a late model dark green vehicle involved in the picking of cannabis or marijuana.' He went to the Pembroke area and radioed for an assist from Clint Butler, Pembroke's Chief of Police. Butler, in his squad car, followed Pope in his squad car along Munyon Road to near its south end where it intersected a road known as Guertin Blacktop. About one thousand feet from the Guertin Blacktop they observed a Cadillac with two or three subjects standing around it, one of whom was taking to the lone driver of a dark green Volkswagen station wagon on the west side of the road. As the two police vehicles approached the other two vehicles, the Volkswagen moved toward the Guertin Blacktop, stopped at a stop sign, turned east onto the Blacktop and pulled over to the side of the road so that the two police vehicles could pass. The two police cars had followed the Volkswagen and when it stopped at the side of the road Pope, who had turned on his red light to stop the Volkswagen, stopped behind it, exited his squad car and started towards the Volkswagen. At this point the Volkswagen pulled away, and Butler who was behind Pope passed Pope's vehicle and with his red light and siren on he overtook the Volkswagen. During this chase, the Volkswagen was weaving back and forth across the pavement and the driver of the Volkswagen (Defendant Ussery) stuck a brown paper bag out of the window of the Volkswagen and was shaking as she traveled down the Blacktop. Butler saw something ground up or crushed up falling down from the bag as he was overtaking and passing the Volkswagen. Pope who was traveling behind Butler saw a clear plastic bag fall from the inside of the brown paper bag. The place where Pope saw the plastic bag fall was between five hundred and one thousand feet from where Butler stopped the Volkswagen. Defendant was ordered from the Volkswagen at gun point, and she was detained by Butler while Pope walked back down along side the side of the road some five hundred or more feet. On the north shoulder of the roadway, in the grass at the edge of the roadway about five hundred to one thousand feet from where the Volkswagen was finally stopped Pope came upon a clear plastic bag with a green leafy substance that looked and smelled like marijuana. He looked around the immediate area where the bag was found and saw no other bag. He went back to the Volkswagen and told Defendant that he was placing her under arrest for possession of cannabis.
Although Butler had seen Defendant shaking her hand with a bag in it outside the window of her car, and although he had seen something that was brown and greenish in color flying out of the bag he did not see anything heavy fall out of the bag and he did not observe the plastic bag brought back by Pope fall out of the brown paper bag as Defendant shook it.
After Pope informed Defendant that she was under arrest, he searched her vehicle and found a balled up brown paper bag with a few granules of some dark green leafy substance in it on the floor by the driver's seat, he held the brown paper bag and the plastic bag for evidence. He delivered these items to an investigator named Nagle. Butler searched Defendant's vehicle. In it he saw a lot of junk, corn, beans and paper bags, eggs and some of everything else in the car. He did not see Pope take anything from Defendant's car. There were a lot of bags in her car. He found some guns in her car which were cased and legal and Defendant had a gun owner's identification. The officers permitted Defendant to drive her car home between their two vehicles and then Pope drove her downtown to the Sheriff's office. Defendant was set free from the Sheriff's custody but the next day she was again arrested and brought back to the Sheriff's office and held in custody. A chemist received the brown paper bag and the plastic bag from Investigator Nagle and found that the plastic bag contained green plant material. He weighed this material and found it to be 108.36 grams. He tested a sample of the material that was in the plastic bag and found that the sample he tested was ground up marijuana and resin.
Defendant denied that she had attempted to elude the police, testified that a cigarette pack was the only thing she threw from the window of her car, denied that the policemen had taken anything from her car at the time they searched it, stated that she had bags in her car to put eggs, stringbeans and different things in that she sold in Chicago, that the two shotguns in her car were encased and tied up and that when Pope walked back down Guertin Road she had seen him to go over to the edge of a field on the north side of the roadway, she did not see him pick up anything because she was talking with Officer Butler and that when Pope came back to her car he had a brown paper sack which he said that she had thrown out. She stated that she told Officer Pope at that time that she hadn't thrown anything out of her car. She had been taken to the Sheriff's office and set free, had gone home and was arrested again at her home the next day. The next day at the police station she was released and she was arrested again upon a criminal capias that had been issued September 22, 1972, on November 1, 1972. She was released upon personal recognizance bond on November 2, 1972, and the public defender was appointed to represent her.
The defendant's trial attorney made no motion to suppress as evidence the plastic bag and contents thereof. He did...
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