People v. Bell

869 N.E.2d 807, 373 Ill. App. 3d 811, 311 Ill. Dec. 794, 2007 Ill. App. LEXIS 521
Appellate Court of Illinois·Decided May 14, 2007·No. 1-05-2493·Published·Cited by 13 cases

Opinion

JUSTICE ROBERT E. GORDON

delivered the opinion of the court:

Defendant Cleo Bell was convicted of possession of a controlled substance with intent to deliver after a bench trial. A sentencing hearing was conducted where mitigation and aggravation were presented. The trial court sentenced defendant to 38 months in the Illinois Department of Corrections, with a credit of 122 days for time served while awaiting sentencing, and assessed fines and fees in the amount of $1,114. Defendant filed a motion for a new trial, which was denied. Defendant appeals, arguing that (1) the trial court violated defendant’s sixth amendment right to confront witnesses against him when the trial court did not allow defendant to cross-examine the surveillance officer as to his exact surveillance location, (2) the trial court erred by failing to appoint new counsel to represent defendant on his posttrial claim that his attorney took insufficient steps to locate a key witness, and (3) the trial court improperly assessed a $20 Violent Crime Victims Assistance Fund fine. 1

BACKGROUND

Officers Fron and Purvis of the Chicago police department were part of a surveillance team in the area of a vacant lot located at 4413 West Gladys Street (subject property) on March 1, 2005, at approximately 11 a.m. Officer Fron was the surveillance officer for the operation. Officer Fron testified that he had a southwest view of the subject property from an elevated position approximately 20 feet above ground level. Officer Purvis was positioned at the West 4300 block of Adams Street and was in radio contact with Officer Fron but did not have a view of the subject property.

From his surveillance point, Officer Fron observed defendant standing alone in the vacant lot located at the subject property yelling “blows” to passing motorists and pedestrians. Officer Fron testified that the nearest person to defendant was 80 to 90 feet away. About eight or nine minutes after setting up surveillance, Officer Fron observed a blue automobile driven by a white male pull over to the curb of the street in front of defendant. After a brief conversation, the driver of the blue automobile handed defendant money, which he placed in his pants pocket. Officer Fron then observed defendant walk approximately 30 feet to a covered black garbage can. Without opening the garbage can, the defendant retrieved a brown paper bag that was wedged between the plastic lid covering the garbage can and the garbage can itself. Defendant opened the brown paper bag and removed a clear plastic bag containing several shiny items. Defendant removed one of the shiny items, placed the clear plastic bag inside the brown paper bag and returned the brown paper bag to its original location wedged between the garbage can and the garbage can lid. Defendant walked back to the blue automobile and handed the shiny item to the driver. The driver of the blue automobile drove off after receiving the shiny item and was never stopped by the police.

Believing that he had witnessed a drug transaction, Officer Fron radioed Officer Purvis to pick him up from his surveillance location. Together, the officers proceeded to defendant’s location in Officer Purvis’s squad car. Officer Fron lost sight of defendant for approximately two to three minutes while traveling from his surveillance location to defendant’s location. The officers arrived at the subject property and detained the defendant. The nearest person to defendant when the police detained him was 30 feet away. Officer Fron then went to the subject garbage can and retrieved the brown bag, which contained a clear plastic bag and five tinfoil packets containing suspected heroin. After the officers placed defendant under arrest, a search of defendant’s person revealed $74, but no narcotics.

The officers then transported defendant and the suspected narcotics to the police station. The officers placed the five tinfoil packets of suspected heroin, the brown paper bag, and the clear plastic hag into an inventory bag, wrote the case information on the inventory bag, entered the same information into the station computer, and assigned the inventory bag and its contents an inventory number and gave it to the officer in charge of evidence. One of the tinfoil packets tested positive for .1 gram of heroin.

Defendant was subsequently charged by information with possession of a controlled substance with intent to deliver and possession of a controlled substance with intent to deliver within 1,000 feet of a school. 720 ILCS 570/401(d), 407(b) (West 2004).

At trial, Officer Fron testified that he observed defendant from an elevated position, 20 feet above ground level, on March 1, 2005, alone, pacing and yelling “blows” to passing motorists and pedestrians from the subject property. Defendant was as close as 60 and as far as 90 feet away from Officer Fron’s surveillance point depending on defendant’s movement during the eight to nine minutes the officer maintained sight of him. Officer Fron testified that he observed defendant under premium weather conditions, he had an unobstructed view of defendant and he used binoculars periodically during his surveillance. He also testified that the nearest person to defendant other than the driver of the blue vehicle during the surveillance was at least 80 to 90 feet away from defendant. On cross-examination, Officer Fron testified that the surveillance location that he was using that day was frequently used by police to monitor the area around the subject property because the area was known to have high narcotics activity. Defense counsel showed Officer Fron a defense exhibit consisting of a blank piece of paper with a drawn intersection depicting Gladys Street and Kostner Avenue not drawn to scale. Officer Fron was asked to mark the exhibit with the letter “D” to indicate where the officer first observed defendant and he did so. Defense counsel then asked if the officer would place an “S” on the exhibit to mark the officer’s surveillance location at which point the prosecution invoked the surveillance location privilege. The following took place at trial:

“Q. Officer, with respect to this D, would you be able to indicate with an S approximately where your surveillance location was?
A. It is actually private property. So I don’t know if I am obliged to give up that location.
Q. I am not asking you to give up the location. I am asking you to indicate with an S approximately where your surveillance location was on this diagram.
MR. PARK (prosecutor): Objection.
THE COURT: What is the objection?
MR. PARK: Judge, as the officer indicated, marking on that even though not to scale rough drawing, he would still give up that location. It is private property. Other people’s safety and officers may be at risk. The officer can testify as to the distance, the angle, whether there was [an] obstruction or not, whether he was elevated, whether he used binoculars, to what direction he was looking at. All that should suffice for the Defense’s ability to cross-examine him on officer’s ability to observe.

Free access — add to your briefcase to read the full text and ask questions with AI

People v. Bell, 869 N.E.2d 807, 373 Ill. App. 3d 811, 311 Ill. Dec. 794, 2007 Ill. App. LEXIS 521 (Ill. Ct. App. 2007).

869 N.E.2d 807 (People v. Bell) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

People v. Mischke
2024 IL App (2d) 240031 (Appellate Court of Illinois, 2024)
People v. Sanders
2019 IL App (1st) 160718 (Appellate Court of Illinois, 2019)
People v. Palmer
2017 IL App (1st) 151253 (Appellate Court of Illinois, 2017)
People v. Price
935 N.E.2d 552 (Appellate Court of Illinois, 2010)
People v. Botsis
902 N.E.2d 1092 (Appellate Court of Illinois, 2009)
People v. Houseworth
903 N.E.2d 1 (Appellate Court of Illinois, 2008)
People v. Ayala - Corrected on 12/8/08
Appellate Court of Illinois, 2008
People v. Ayala
899 N.E.2d 513 (Appellate Court of Illinois, 2008)
People v. Diaz
878 N.E.2d 1211 (Appellate Court of Illinois, 2007)