People v. Friend

533 N.E.2d 409, 177 Ill. App. 3d 1002, 127 Ill. Dec. 537, 1988 Ill. App. LEXIS 1795
CourtAppellate Court of Illinois
DecidedDecember 28, 1988
Docket2-87-0758
StatusPublished
Cited by34 cases

This text of 533 N.E.2d 409 (People v. Friend) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Friend, 533 N.E.2d 409, 177 Ill. App. 3d 1002, 127 Ill. Dec. 537, 1988 Ill. App. LEXIS 1795 (Ill. Ct. App. 1988).

Opinion

JUSTICE UNVERZAGT

delivered the opinion of the court:

The defendant, David Friend, was charged by information in the circuit court of Du Page County with one count of unlawful possession of controlled substance (cocaine) with intent to deliver (Ill. Rev. Stat. 1985, ch. 56½, par. 1401(a)(2)), one count of unlawful possession of cannabis with intent to deliver (Ill. Rev. Stat. 1985, ch. 56½, par. 705(d)) and one count of unlawful use of a weapon by a felon (Ill. Rev. Stat. 1985, ch. 38, par. 24—1.1). This latter charge was nol-prossed on the State’s motion and the case dismissed. Defendant’s motions to quash arrest and search warrant were denied, and, after a bench trial, he was found guilty of the remaining two charges. His post-trial motion was denied, and he was sentenced to seven and three years’ imprisonment, respectively, on the cocaine and cannabis offenses, sentences to be served concurrently. Street value fines in the amount of $8,300 and $1,600 were imposed pursuant to section 5—9—1.1 of the Unified Code of Corrections (Ill. Rev. Stat. 1985, ch. 38, par. 1005—9—1.1). Upon the State’s amended petition to revoke probation based on the instant offenses, the court revoked the defendant’s sentence of 18 months’ probation which was imposed upon him in 1984 pursuant to section 410(a) of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1983, ch. 56½, par. 1410(a)). No additional sentence was imposed following revocation.

Defendant appeals from both his convictions and from the revocation of his probation. The appeals were consolidated. Inasmuch as no sentence was entered by the court upon revocation of the defendant’s probation, that judgment lacks finality, and the appeal cannot be entertained. (People v. Caballero (1984), 102 Ill. 2d 23.) Further, the defendant presents no argument or citation of authority whatsoever in support of his prayer for reversal of the revocation judgment. Accordingly, defendant’s appeal from the court’s judgment revoking his probation is dismissed.

Defendant raises these issues on appeal from his convictions: (1) whether he was deprived of a fair Franks hearing because the court denied his request for disclosure of the identity of the confidential informant; (2) whether the court erred in directing a finding for the State at the conclusion of the Franks hearing; (3) whether there was probable cause for the search warrant and, if not, whether the evidence nonetheless was admissible; (4) whether the search warrant was overbroad and, thus, invalid; (5) whether he was deprived of due process due to the court’s ex parte communications with police officers and its predetermination of his case; (6) whether he was deprived of a fair Franks hearing where a defense witness repeatedly asserted her fifth amendment rights in response to questioning by the State; and (7) whether the State’s evidence proved beyond a reasonable doubt his intent to deliver.

Chicago detective Andrew Kuchoukos, accompanied by six other Chicago officers and two Hanover Park police officers, went to the premises with a search warrant which the Chicago officers obtained earlier that day. En route to execute the warrant, Kuchoukos encountered the defendant in a vehicle a block away from the premises. The defendant was driving and his girlfriend, Sharon Freeman, and two or three other people were with him. Kuchoukos informed the defendant the officers had a search warrant, and they all went to the premises.

The officers entered to conduct the search after the defendant handed Kuchoukos a key and Kuchoukos advised the defendant of his Miranda rights. The defendant agreed to waive his rights and speak to Kuchoukos. When asked about weapons and contraband, the defendant admitted to having both on the premises and directed Kuchoukos to the second floor and the basement of the premises.

The officers split up and searched different areas of the premises. Various items were recovered during the search, most from a desk or dresser in one of the two bedrooms on the second floor. These items included four bags and two folded pieces of paper, all of which contained a white powdery substance. Laura Mitacek, a forensic chemist, testified she weighed and tested the substances. Three of the bags weighed just over three grams each and contained cocaine. The fourth bag weighed 55.65 grams and also contained cocaine. The powder in the two folded papers consisted of 1.80 and 1.81 grams, respectively, of a substance containing cocaine. A bag containing 3.1 grams of green leafy plant material, determined to be cannabis, was found under the bed in that bedroom. Three other bags of green leafy plant material were found under the steps in the basement and determined to each contain approximately 100 grams of cannabis. A gram scale was found on the dresser, and $2,480 was found in a drawer of the dresser. Two guns were also found in between the mattress and springs of the bed in the bedroom. Two documents addressed to the defendant at 6255 Nugget, Hanover Park, Illinois, were found in a drawer of the dresser. A piece of paper with names and numbers was found in the bedroom either in the dresser area or under the bed. The defendant admitted to police the contraband was his.

The defendant made a pretrial motion to quash the search warrant which alleged that the allegations in the complaint for the warrant were false. Several affidavits were filed in support of the motion. Supplemental affidavits were added, and the court granted the defendant a hearing pursuant to Franks v. Delaware (1978), 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674.

The search warrant was issued at 11:35 a.m. on March 6, 1986, in Cook County, based on a complaint signed and sworn to by Kuchoukos. According to the allegations of the complaint, Kuchoukos spoke with a “cooperating individual” whom he had known for over one year and who had given him information regarding narcotics trafficking on numerous occasions. On three of those occasions that were acted upon, narcotic contraband was discovered, analyzed and found to be cocaine. Arrests were made in all those occasions and the causes were pending in the courts of Cook County. The informant told Kuchoukos he went to purchase cocaine from the defendant at a multi-family structure at 6255 Nugget “in the early morning hours” of March 6. The defendant was described as a male white subject, approximately 30 years old, 6 feet 2 inches tall, 250 pounds, with blue eyes and blonde hair. The informant told Kuchoukos he was admitted to the dwelling by the defendant, told the defendant he wanted to buy one gram of cocaine, and the defendant said it would cost $100. The informant handed that amount to the defendant. The defendant then produced a large clear plastic bag containing white powder. He weighed a small portion of this substance on a scale, placed the substance in a white paper packet and gave it to the informant. The large plastic bag was then placed in the refrigerator. The defendant told the informant the powder in the clear plastic bag was over five ounces of very good quality cocaine which was his supply for the “on-coming” week. Shortly after leaving 6255 Nugget, the informant snorted the powder purchased from the defendant and received the same effects as when he snorted cocaine during the preceding three-year period.

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Cite This Page — Counsel Stack

Bluebook (online)
533 N.E.2d 409, 177 Ill. App. 3d 1002, 127 Ill. Dec. 537, 1988 Ill. App. LEXIS 1795, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-friend-illappct-1988.