People v. White

• Decision Date: 23 March 2017
• Docket Number: No. 1-14-2358,1-14-2358
• Citation: 74 N.E.3d 492,2017 IL App (1st) 142358
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Derrick WHITE, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

2017 IL App (1st) 142358

74 N.E.3d 492

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.Derrick WHITE, Defendant-Appellant.

No. 1-14-2358

Appellate Court of Illinois, First District, FOURTH DIVISION.

March 23, 2017

Michael J. Pelletier, Patricia Mysza, and Christopher L. Gehrke, of State Appellate Defender's Office, of Chicago, for appellant.

Anita M. Alvarez, State's Attorney, of Chicago (Alan J. Spellberg, Mary P. Needham, and Leslie Billings, Assistant State's Attorneys, of counsel), for the People.

OPINION

PRESIDING JUSTICE ELLIS delivered the judgment of the court, with opinion.

¶ 1 Following a bench trial, defendant Derrick White was found guilty of delivery of a controlled substance (heroin) (720 ILCS 570/401(d) (West 2012)) and sentenced to 10 years' imprisonment. On appeal, defendant contends that (1) the State failed to present sufficient evidence that he was the offender who delivered the controlled substance, (2) he was denied his right to a fair trial when the trial court precluded and limited his introduction of tattoo evidence, and (3) his fines and fees order must be reduced. We agree with his second argument, and thus we vacate defendant's conviction and remand for a new trial.

¶ 2 At trial, Chicago police officer Steven Leveille testified that, at 5:38 p.m. on June 25, 2013, he was undercover and working with a team of other officers attempting to conduct controlled drug purchases. Leveille walked toward an alley located near the 800 block of South Kedvale Avenue after officers alerted him that suspect drug activity was occurring in the area. As Leveille approached the alley, a man, whom Leveille identified at trial as defendant, came up to him wearing a sleeveless white tank top. Defendant asked Leveille how many "blows" he wanted, which Leveille explained at trial was a street term for heroin. Leveille responded that he wanted two. Defendant, using his right hand, gave Leveille two plastic bags containing a white powdery substance, which Leveille believed was suspect heroin. In return, Leveille gave defendant $20 of prerecorded police funds. The parties later stipulated that the items recovered by Leveille tested positive for heroin and weighed 0.7 grams. Leveille walked out of the alley and alerted the other officers. He did not look to see where defendant went. Nothing obstructed Leveille's view of defendant's face during the transaction, and Leveille described the lighting conditions of the alley as "very good" because the sun was out. Leveille, who had been face-to-face with defendant, could also see defendant's right hand and arm. He did not remember observing any scars on defendant's face or tattoos on his body, the latter of which, he testified, he would have documented had he observed them.

¶ 3 Leveille returned to his vehicle but never received a communication that defendant had been arrested. He later returned to the police station where he inventoried the suspect heroin. At approximately 8:49 p.m., he viewed a photo array consisting of five individuals and identified defendant as the individual who sold him the suspect heroin.

¶ 4 Chicago police officer Edward Legenza, a surveillance officer, testified he was monitoring activity in the alley and saw a man, whom Legenza identified at trial as defendant, "congregating" with a large group of people. Legenza was "[j]ust south of" defendant's location and had a clear and unobstructed view of defendant. From there, Legenza observed defendant perform "hand-to-hand transactions" with several men in the alley and, as a result, alerted other officers that he had just observed suspect drug transactions. Defendant was wearing a white tank top, but Legenza did not observe any tattoos on his body. Legenza then testified that, from his "vantage point," he could not see whether defendant had tattoos. When shown his report, he admitted that he had written that the dealer "does not have tattoos." Legenza then witnessed the transaction between defendant and Leveille. After the transaction was complete, Legenza alerted other officers but lost sight of defendant and did not see him again that day.

¶ 5 Legenza returned to the police station where a sergeant put together a photo array. The photo array was created using the address of the transaction and the description of defendant, although Legenza acknowledged not including the latter in his report. Legenza agreed that he never identified defendant in the photo array and never participated in any identification of him.

¶ 6 The parties stipulated that, two days later, defendant was arrested on the 800 block of South Kedvale Avenue based on Leveille's identification of him in the photo array. There was no evidence that defendant possessed narcotics or prerecorded funds when he was arrested. The parties further stipulated that Leveille and Legenza were not present when defendant was arrested and did not identify him following his arrest.

¶ 7 Defense counsel unsuccessfully moved for a directed finding, arguing defendant had been misidentified by the police.

¶ 8 In the defense's case, defendant sought to show the tattoos on his arms to the trial judge. The following colloquy occurred:

"DEFENSE COUNSEL: For demonstrative purposes, I would like to have the Defendant approach and show his Honor his tattoos.

THE COURT: Sure.

ASSISTANT STATE'S ATTORNEY: I will approach as well.

DEFENSE COUNSEL: Could you hold out both your right and left arm?

THE COURT: Well, you know what. Wait. He is not going to show me all of his tattoos. He is going to show me his right arm, which was the arm extended to the officer, and it will be face down. Take your arm and have your palm down, not up.

I am looking at his arm palm down, as is the State, and I see no tattoos.

DEFENSE COUNSEL: Your Honor, you are standing up above there, and the officer testified that he could see objects in his hand, in his palm, in his open hand.

THE COURT: You never made that clear in the record.

DEFENSE COUNSEL: I think it was clear, your Honor.

THE COURT: You want to argue with me? It was never clear on the record as to how his hand was presented to the officer, whether it was palm up and the forearm was showing or palm down. That was never put on the record. You could have asked the officer that when he testified. You never did.

DEFENSE COUNSEL: Judge, I also asked to have him approach, Judge.

THE COURT: Right, and I said that would do—that is not a demonstrative aid to have the officer in court observe your client after the fact. I said you could present evidence that there were tattoos and then attack the identification, which is what you are doing.

DEFENSE COUNSEL: Judge, I am going to ask that somebody stand next to my client in the way that the officer says he was standing next to him and have him hand it with his palm down and with his palm up. The officer clearly said that he saw objects in his hand.

THE COURT: And did he say the objects in his hand were released with his palm down, or did he say the objects in his hand were released with his palm up? Would you answer my question?

DEFENSE COUNSEL: He was not asked that.

THE COURT: Thank you. Proceed.

DEFENSE COUNSEL: Judge, I mean—

THE COURT: Anything further? You can save this for argument. The demonstration is done. Have a seat, Mr. White.

DEFENSE COUNSEL: Judge, I would like the record to reflect though that the tattoo that I for the record would like—

THE COURT: The record can reflect that he has a tattoo on his forearm with his palm facing up, but the record will reflect that you never specified in your cross-examination of the officer how he viewed the arm. He may have seen it with the palm up. He may have seen it with the palm down. You never did that with your direct examination. As a result, it is not in the record. What is in the record is that he didn't notice any tattoos. That is his testimony."

¶ 9 Leveille was recalled to testify for the defense and stated he did not remember how defendant's hand was positioned when defendant handed him the suspect heroin. Leveille added that he could not see the palm of defendant's hand and demonstrated how defendant reached over to him. The court noted that Leveille had "his hand extended from his body with the palm down." Defense counsel again requested that defendant be allowed to demonstrate, which the court denied. When defense counsel asked if the State would stipulate to the tattoos, the court stated it had already noted for the record, when defendant did the demonstration, that defendant had a tattoo on his right forearm that was visible with his palm up. The court explained: "I said I didn't see any tattoos with his arm extended with the palm down. I saw a tattoo with his arm extended with the palm up. That is what I saw, and that is what I put in the record. Is there something further you want to do?" The following colloquy took place:

"DEFENSE COUNSEL: Well, Judge, it is just from my vantage point as I was standing next to him, even with his hand down I could see the tattoo, and that is my concern.

THE COURT: Well the Court could not see the tattoo. I am the finder of fact. I saw him extend his arm. There was no tattoo.

DEFENSE COUNSEL: Judge, to be fair you are sitting up there.

THE COURT: I stood up, and I looked down at his arm.

DEFENSE COUNSEL: But that is not the vantage point of this officer. The officer is standing next to him as he is reaching over, and I think it would be fair to have a demonstration of that.

THE COURT: The officer did demonstrate.

DEFENSE COUNSEL: A demonstration of my client.

THE COURT: Do you want to call your client to the stand? You can do that. He can testify."

¶ 10 The court asked defense counsel if defendant was going to testify. After a brief delay, counsel informed the court that defendant would not testify. After the court admonished defendant about his right to testify, defense counsel again requested a demonstration with defendant "next to" Leveille because the officer would be able to see the tattoos from that vantage...