People v. McWhite

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People v. McWhite

State: Illinois

Court: 1st District Appellate

Docket No: 1-08-2753 Rel

Case Date: 03/30/2010

Preview:SECOND DIVISION March 30, 2010

No. 1-08-2753

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TONY McWHITE, Defendant-Appellant.

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Appeal from the Circuit Court of Cook County. No. 08 CR 1232 Honorable Matthew E. Coghlan, Judge Presiding.

JUSTICE THEIS delivered the opinion of the court: Following a bench trial, defendant Tony McWhite was convicted of possession of 1 to 14 grams of heroin with intent to deliver (720 ILCS 570/401(c)(1) (West 2006)) and sentenced to seven years' imprisonment. Defendant now appeals, contending that: (1) his conviction should be reversed because the trial court improperly allowed the State to introduce out-of-court statements to bolster the credibility of the police officer who conducted the narcotics surveillance; (2) his sentencing order should be amended to reflect a time served credit of 287 days; (3) the $30 Children's Advocacy Center assessment should not have been imposed on him because the statute authorizing it was not in effect at the time he committed the offense; (4) the $5 court system fee should not have been imposed upon him because his conviction was not a violation of the Illinois Vehicle Code or a similar provision; and (5) his mittimus should be corrected to properly state the

1-08-2753 name of the crime under which he was convicted, possession of a controlled substance with intent to deliver. For the following reasons, we reverse and remand this cause to the circuit court for a new trial. Defendant was charged by information with possession of 1 to 15 grams of heroin within 100 feet of a park (720 ILCS 570/401(b)(1) (West 2006)), and possession of 1 to 15 grams of heroin with intent to deliver (720 ILCS 570/401(c)(1) (West 2006)). The following evidence was adduced at his bench trial. Officer Thomas Carey testified that around 6 p.m. on December 14, 2007, he was conducting a narcotics surveillance near 340 North Avers on the west side of Chicago. He was working with a team of three other officers. It was dark at that time of evening at that time of year, but the area was illuminated by street lamps. Officer Carey had positioned himself between the first and second floors of a building that was under construction. From roughly 150 feet away, with the aid of binoculars, Officer Carey observed defendant, a man named "Greer," and an unidentified woman on the sidewalk below. The woman was yelling, "Blows!" Shortly thereafter, a vehicle arrived at the scene, and a man got out and approached Greer. After a short conversation, the man gave Greer money. Greer then turned in the direction of defendant and the woman and said something. Defendant, in turn, proceeded to a vacant lot. In that lot, near the base of a large tree, was a "garbage can type" barbeque grill. Defendant reached inside of the grill and produced a cigarette box. Defendant then removed something from the cigarette box, walked over to Greer, and gave him the item. Defendant returned to where the woman was, and Greer gave the item to the man from the vehicle. The man then departed.

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1-08-2753 A few minutes later, a man drove up in a pickup truck. He got out, approached Greer, and after a short conversation, gave him money. Greer then turned in defendant's direction and said something. As he had done before, defendant proceeded to retrieve an item from the cigarette box inside of the grill and gave the item to Greer. Greer, in turn, gave the item to the man, who then departed. A few minutes after that, Officer Carey observed a third similar transaction. A few more minutes later, a fourth transaction occurred. However, after observing the fourth transaction, Officer Carey radioed the other officers on his team and directed them to arrest defendant and Greer. After they did so, Officer Carey directed one of them, Officer Brian Town, to the cigarette box inside of the grill. Officer Town, who also testified at trial, explained that Officer Carey directed him to a tree. He then told him that by the tree, inside of a grill, was a box. Officer Town then retrieved a Newport cigarette box, which contained 24 ziploc bags, each of which contained what he suspected to be powdered heroin. Officer Towns transported the items to the police station, where he inventoried them and sent them to the crime lab for testing. Officer Towns also performed a custodial search of Greer, which yielded $67. On cross-examination, defense counsel confronted Officer Carey with the vice case report of the incident. The report had been prepared by one of the other officers on the team, but Officer Carey had reviewed it and signed it. The report contained approximately 15 lines of narration describing the incident. However, Officer Carey admitted that the report made no mention of the barbeque grill. Rather, the report stated that after receiving communications from

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1-08-2753 Greer, defendant "relocated to a large tree inside an empty lot at approximately 340 North Avers, bent down, and picked up a green-white Newport cigarette box." On redirect by the State, the assistant State's Attorney began to ask about certain testimony Officer Carey gave at the preliminary hearing describing how defendant would retrieve the drugs. However, defense counsel objected, contending that the rehabilitation was improper. The court overruled the objection without comment. Nevertheless, defense counsel persisted, arguing that the State was attempting to introduce a prior consistent statement. The following exchange then occurred: "THE COURT: You impeached him by the vice case report, giving an inference of recent fabrication, she's allowed to go into. [sic] MR. FOX [Defense Attorney]: But, Judge, I would like to object also and say whatever they are going to try to use had to exist before the police report. There are [sic] talking about Preliminary Hearing which was afterwards. THE COURT: Your record is made. Overruled." The State then proceeded to ask Officer Carey about his testimony at the preliminary hearing, during which he spoke about the grill located at the base of the tree and how defendant would open the grill and remove an object. The State also asked Officer Carey about two arrest reports he had prepared regarding the incident, one for defendant and one for Greer. The State then elicited testimony that in each of those reports, Officer Carey described defendant removing the cigarette box from the grill, and removing the suspected drugs from the cigarette box.

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1-08-2753 Prior to the conclusion of the evidence, the parties stipulated that the items inventoried by Officer Towns were received at the Illinois State Police crime lab in a sealed condition, a proper chain of custody having been maintained at all times. There, a forensic chemist tested them and would have testified that she determined, to a reasonable degree of scientific certainty, that the items were positive for the presence of heroin in the amount of 6.4 grams. The court ultimately found defendant guilty of possession of a controlled substance with intent to deliver. In announcing its decision, the court noted that "the suggestion of recent fabrication of the grill" had been "dispelled" by the fact that Officer Carey mentioned the grill at the preliminary hearing and in the arrest reports he had prepared. Defendant subsequently filed a motion for a new trial, in which he contended, inter alia, that the admission of the testimony regarding the arrest reports and the preliminary hearing was improper.1 The court denied the motion. The court subsequently sentenced defendant to seven years' imprisonment. Defendant then filed this timely appeal. Defendant now contends that his conviction should be reversed because the trial court improperly allowed the State to introduce out-of-court statements to bolster the credibility of Officer Carey. Defendant maintains that the court erred in allowing the prior consistent statements because there was no suggestion of recent fabrication, because the prior consistent statements did not predate the inconsistent statement, and because any motive for the officer to lie existed the entire time he was involved in the case. We review the trial court's admission of

The written motion itself is not contained in the record; however, the fact that it was filed and that it had raised this issue is clear from the report of proceedings. 5

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1-08-2753 evidence for abuse of discretion. People v. Caffey, 205 Ill. 2d 52, 89 (2001). Generally, statements made prior to trial are inadmissible for the purpose of corroborating trial testimony or rehabilitating a witness. People v. Cuadrado, 214 Ill. 2d 79, 90 (2005); People v. Heard, 187 Ill. 2d 36, 70 (1999). This is because the trier of fact is likely to unfairly enhance a witness's credibility simply because the statement has been repeated. M. Graham, Cleary & Graham's Handbook of Illinois Evidence

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