People v. Torres

558 N.E.2d 645, 200 Ill. App. 3d 253, 146 Ill. Dec. 682, 1990 Ill. App. LEXIS 1085
Appellate Court of Illinois·Decided July 26, 1990·No. 2-89-0076·Published·Cited by 29 cases

Opinion

JUSTICE DUNN

delivered the opinion of the court:

Defendant was charged by indictment with violation of section 401(a)(2) of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1987, ch. 56½, par. 1401(a)(2)) for possession with intent to deliver 15 grams or more of a substance containing cocaine. During pretrial proceedings, defendant had three motions denied. The first was to compel the State to produce information in regard to the State’s search warrant affidavit. The second was a motion for a Franks hearing, and the third was a motion to suppress statements defendant made following her arrest. Following a jury trial, defendant was found guilty of the count charged in the indictment, and she was sentenced to a term of 15 years’ imprisonment.

On appeal, defendant raises the following issues: (1) whether the trial court erred in quashing defendant’s subpoena for information relating to the State’s search warrant affidavit; (2) whether the trial court erred in denying defendant a Franks hearing; (3) whether the trial court erred in allowing evidence concerning the purity of the cocaine; (4) whether there was prejudicial error where, at the suppression hearing, the trial court allowed the State to question defendant about the substance of the statement she wanted to suppress; (5) whether the trial court erred in denying defendant’s motion to suppress statements made following her arrest; (6) whether the trial court improperly denied defendant her right to cross-examination; (7) whether defendant was proved guilty beyond a reasonable doubt; and (8) whether defendant’s sentence was proper. For the reasons stated below, we affirm.

The facts are essentially as follows.

On June 2, 1988, at 5:30 p.m., Chicago police officers, working in conjunction with the Drug Enforcement Agency, executed a search warrant for defendant’s residence and found a bag containing two bags of white powder and a briefcase containing a large sum of cash.

Agent August Lett testified he found a bag with the name “Lerner” in the bedroom closet which contained inside it two bags of white powder. One of the bags contained 32 smaller bags of the powder. Lett also found directly beneath the Lerner bag a briefcase containing cash totaling $42,500. Lett noticed that the closet contained male and female clothing. There was no furniture in the bedroom as the residents were moving. He confronted defendant with the substance and the cash and arrested her. Agents Thomas Bridges and Thomas McDermott were present at this time. Lett read defendant her Miranda rights, reading from a card and asking defendant to state after each right whether she understood. She stated she did. Then, Agent Bridges asked defendant whether there was any more contraband in the residence and whether she had a scale. She responded, “No. I buy pre-packaged kilos.” Later, at the police station, Agent Lett prepared a written rights and waiver form, which defendant refused to sign.

Agent Bridges testified that Agent Lett advised defendant of her Miranda rights by reading her all her rights and then asking her if she understood. Bridges asked defendant if there was any more contraband in the house, and she responded no. He also asked her if she had a scale, and she responded that she did not use a scale because she bought prepackaged kilos. Agent McDermott testified he did not recall whether Agent Lett asked separately whether defendant understood each right or whether she was asked this at the end of the reading of her rights. McDermott also did not recall whether Lett or Bridges asked the defendant questions after she was advised of her rights, though he first stated on direct examination that Agent Lett asked the questions.

The parties stipulated that the substance seized from defendant’s residence was 947 grams of cocaine with a purity content of 95%. Lett and Bridges testified that one would not ordinarily possess such a large amount of high purity cocaine for personal consumption.

Betty McCain was called to testify by defendant. She testified that she was a moving company employee who had been to defendant’s house to help her with her packing. On May 23, 1988, she saw the master bedroom closet and noticed male and female clothing. On May 26, 1988, she was at defendant’s residence and saw a man named Diego Meza in the master bedroom.

Defendant testified that her boyfriend, Diego Meza, moved into her residence two days prior to June 2, 1988, and shared the master bedroom with her. For three months prior to this time, Meza spent much of his time at her residence. Defendant had seen the briefcase seized from her house at defendant’s apartment two weeks before June 2. She remembered that, when defendant moved into her house, he carried the briefcase into her bedroom. She first testified she did not know where in the bedroom Meza put the briefcase, but on cross-examination she stated she knew it was in the closet. She did not know there was money in it. Defendant testified that the Lerner bag was a bag she received at a store where she bought clothing the weekend before June 2. The bag did not have plastic liners when she brought it home. She never saw Meza with the bag.

Defendant told the officers when they presented her with the search warrant that there was no cocaine in her house. Defendant denied being confronted with the cocaine or the cash at her house. She saw the police take these items, but she was not confronted with them, and she was not read her rights after she was arrested. She told the police she did not have a scale, and she had nothing else in the house, but she did not state that she bought prepackaged kilos.

Other facts necessary to this appeal will be discussed within the context of their relevance to the issue to be decided.

Defendant first contends the trial court erred in quashing her subpoena duces tecum. Defendant subpoenaed Agent Thomas Bridges of the Chicago police department to produce information referred to in his complaint for a search warrant of defendant’s residence. In his affidavit, Bridges stated he received information from an informant that the informant had been to the residence of a woman named Shirley who took him to the living room and allowed him to try some cocaine. She showed him a package that she stated was a kilogram of cocaine. Bridges stated he had worked with the informant for two years, and the information had always proved correct by surveillance. Further, on three occasions, the informant gave information which resulted in seizures of controlled substances, the cases of which were now pending in the courts. Bridges also stated he ran defendant’s name through the National Narcotics and Drug Enforcement computer and learned defendant was a documented multikilo distributor of cocaine. Finally, Bridges stated that, since the time the informant had been to the residence, the police kept the residence under constant surveillance and the only person to enter or leave since that time was defendant.

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People v. Torres, 558 N.E.2d 645, 200 Ill. App. 3d 253, 146 Ill. Dec. 682, 1990 Ill. App. LEXIS 1085 (Ill. Ct. App. 1990).

558 N.E.2d 645 (People v. Torres) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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