People v. Mullins

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People v. Mullins

State: Illinois

Docket No: 108909 NRel

Case Date: 04/21/2011

Preview:Docket No. 108909.

IN THE SUPREME COURT OF THE STATE OF ILLINOIS

THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. IRA MULLINS, Appellee. Opinion filed April 21, 2011.

JUSTICE FREEMAN delivered the judgment of the court, with opinion. Justice Burke concurred in the judgment and opinion. Chief Justice Kilbride specially concurred, with opinion. Justice Garman specially concurred, with opinion, joined by Justices Thomas, Karmeier, and Theis.

OPINION After a jury trial, defendant, Ira Mullins, was convicted of possession of a controlled substance with intent to deliver (720 ILCS 570/401(d) (West 2004)), and sentenced to nine years in prison. The appellate court reversed and remanded for a new trial. We granted the State's petition for leave to appeal and now reverse the judgment of the appellate court. BACKGROUND Defendant was charged with possession of a controlled substance

with intent to deliver (720 ILCS 570/401(d) (West 2005)). Prior to trial, defense counsel moved in limine to bar the State from using defendant's three prior felony narcotics convictions1 as impeachment should he testify. In response, the State asked that the court "withhold judgment as to whether [the convictions are] more prejudicial than probative if and when the defendant does actually testify." The court agreed, ruling it would reserve its decision. At trial, Chicago police officer Matt McGrory testified that at about 11 p.m. on February 1, 2005, he and his partner, Jeffrey Zwit, were part of a narcotics surveillance operation near the 4500 block of West Washington Boulevard, an area known for narcotics transactions. McGrory was stationed on the rooftop of a three-flat residence at 4451 West Washington Boulevard, while the other officers waited in two marked squad cars about a block away. Using binoculars, McGrory observed defendant standing alone on the sidewalk in front of 4506 West Washington Boulevard, a residence with a wire fence encircling the front of the property. The area in which defendant was standing was "well-lit" by street lights, and he was approximately 10 feet away from one of these lights. McGrory observed a man approach defendant and engage him in brief conversation. The man then handed defendant an item which defendant shoved into his pants pocket. Based upon the size and tint of the paper, McGrory believed defendant had accepted money, but he could not discern the denomination of the bills. Defendant walked over to a nearby metal fence post and retrieved an unknown object from inside that post. Defendant then gave the object to the man who had given him the money. Although McGrory could not exactly determine what the item was, he saw it was the size of a coin. The other person then left on foot. This same series of events occurred twice more, within the span of a few minutes. Based upon his experience and training, McGrory believed he was observing illegal narcotics transactions. McGrory conducted this surveillance for approximately 30 minutes, during which time he was in contact with Zwit and the

Defendant's most recent conviction occurred in 2001, with the two other convictions occurring in 1997.

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backup officers by two-way radio. After witnessing the third transaction, McGrory gave his colleagues a description of defendant and asked that they approach and detain him. McGrory maintained his surveillance as the other officers drove to defendant's location. While the two backup officers detained defendant, McGrory directed Zwit via the police radio to the fence post from which defendant had retrieved the objects. After he observed Zwit recover items from the post, McGrory joined the others at the scene, where defendant was arrested. McGrory testified that during the surveillance period, defendant had no bags or suitcases with him. In addition, McGrory never saw defendant walk into 4506 West Washington Boulevard and never saw anyone come out of that house. McGrory and Zwit transported defendant to the police station, where Zwit showed McGrory the plastic bag he had retrieved from the fence post. The bag contained three tinfoil packets of white powder. McGrory then processed defendant and asked for his address. Defendant stated that he resided at 210 North Central in Chicago. On cross-examination, McGrory was asked why his written arrest report failed to include several facts to which he testified during direct examination: that he used binoculars during the surveillance operation; that the fence post had no cap; that defendant stood 10 feet away from the street light; and that defendant placed something in his pocket after every transaction. McGrory acknowledged that he did not include these specific facts, but explained that the purpose of the written report is to summarize the incident and, therefore, not every fact is included. Officer Zwit's testimony largely mirrored that of McGrory regarding the initiation and execution of the surveillance operation. Zwit additionally testified that he and the two backup officers did not personally witness the three transactions, because they were stationed around the corner waiting for McGrory to give the signal to move to the scene. When they did, McGrory directed him to look inside the fence post, which was hollow. Zwit found a plastic bag inside the post that contained three tinfoil packets of white powder suspected to be heroin. The plastic bag was held up inside the post by "random garbage," including chip bags and other debris. From his experience with narcotics investigations, Zwit recognized the tinfoil packets as those commonly used in the individual sale of heroin. The packets -3-

resembled items commonly referred to as "nickel" bags worth $5, in contrast to larger packets typically sold for $10. Zwit transported the three packets back to the station, where he inventoried them. Zwit also inventoried $18 in United States currency given to him by one of the backup surveillance officers who had recovered the money from defendant's pockets. The currency consisted of three $5 bills and three $1 bills. No narcotics were recovered from defendant's person. Officer Almanza also took part in the surveillance operation, and his testimony corroborated that of McGrory and Zwit. Almanza additionally stated that, at the scene, he conducted a protective patdown of defendant and found nothing illegal. He did notice, however, that defendant had money in his pockets, which was retrieved during the later custodial search of defendant at the station. Almanza recovered $18 from defendant, consisting of three $5 bills and three $1 bills. Each individual bill was crumpled up and stuffed in defendant's pockets. According to Almanza, "[u]sually what happens in narcotics when we *** arrest people, they just grab money from the buyer and they just shove it into their pocket immediately." Dr. Monica Kinslow, a forensic chemist employed by the Illinois State Police, testified that she tested the substance in the foil packets retrieved from the fence post and determined it was heroin. She further determined that the weight for one packet was 0.1 grams, and, therefore, that the total weight of the three packets was 0.3 grams. The State then rested. After the trial court denied defendant's motion for a directed verdict, defendant called Trenton Grayer to testify on his behalf. Grayer was 15 years old at the time of trial, and 14 at the time of this incident. Grayer was a "good friend" of defendant and knew him for approximately three years as a result of working together at a Chicago car wash. Grayer sometimes saw defendant socially on the weekends, but they had not been to each other's homes. Grayer did not have defendant's phone number, but defendant had his. Grayer stated that on February 1, 2005, defendant called Chiquita Chambers

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