People v. McCoy
Annotate this Case
FOURTH DIVISION
MARCH 19, 1998
No. 1--96--4306
THE PEOPLE OF THE STATE OF ILLINOIS,
Plaintiff-Appellee,
v.
ROBAIRE MCCOY,
Defendant-Appellant. )
)
)
)
)
)
)
)
) Appeal from the
Circuit Court of
Cook County
No. 93--CR--28532
Honorable
Leo E. Holt,
Judge Presiding.
PRESIDING JUSTICE CERDA delivered the opinion of the court:
Following a bench trial, defendant, Robaire McCoy, was
convicted of possession of a controlled substance with the intent
to deliver (720 ILCS 570/401 (West 1992)) and possession of
cannabis with the intent to deliver (720 ILCS 550/5 (West 1992)).
He was sentenced to concurrent sentences of six years' and four
years' imprisonment. On appeal, defendant asserts that (1) the
trial court erred when it allowed the State to amend the
information; (2) his right to a speedy trial was violated; (3) he
was not proven guilty beyond a reasonable doubt; (4) the trial
court erred when it denied him a Franks hearing; (5) his
statement was involuntary; and (6) the trial court erred when it
did not allow certain testimony. For the following reasons, we
affirm.
On October 11, 1993, Chicago police detective Robert O'Neill
filed a complaint requesting a warrant to search the person of a
black man named Tony, who was approximately 25 years old, 5 foot
10 inches tall, and 320 pounds, and the second floor apartment at
9221 South Laflin Street, Chicago. In his complaint, Detective
O'Neill stated that an informant told him that the informant was
at the apartment on October 10, 1993. After Tony let the
informant into the apartment, he and Tony discussed the sale of
white heroin. Tony went to a different part of the apartment and
returned with a paper bag, from which he removed a large plastic
bag containing a white powder and an electronic scale. After
weighing a portion of the white powder, Tony gave it to the
informant, who gave Tony $40 in return. The informant tested the
powder on his tongue and determined it to be heroin. O'Neill
further stated that he had known the informant for at least one
year. During the previous six months, the informant had given
O'Neill information three times, which led to the recovery of
heroin, cocaine, and unlawfully possessed firearms.
According to O'Neill's testimony at the hearing to suppress
defendant's statements, he and five other police officers went to
the second floor apartment at 9221 South Laflin Street at 9 p.m.
on October 11, 1993. When defendant answered the door, O'Neill
learned that he was Tony, then gave him the search warrant.
Detective Dennis Cullom advised defendant of his Miranda rights.
Tracy Pitts, the mother of defendant's son, was 15 to 20 feet
away. O'Neill denied that he or any other police officer
threatened to arrest Pitts or take her three-year-old son to the
Department of Children and Family Services (DCFS) if defendant
did not confess to criminal activity. O'Neill spoke to Alicea
McCoy, defendant's mother, when she came to the apartment door
during the search, but did not allow her into the apartment.
O'Neill denied ever telling McCoy that Pitts might be arrested
and her son taken to the DCFS.
Chicago police detective Dennis Cullom and Chicago police
officer Steven Worshum testified that neither they nor any other
police officer in their presence threatened to arrest Pitts or
take her son to DCFS if defendant failed to confess to criminal
activity.
Tracy Pitts testified that she answered the door when the
police arrived. Defendant was sitting in the living room,
playing a video game. Their three-year-old son was also present.
The police officers told Pitts to sit in the living room and
asked defendant for his name. Pitts did not see anyone hand
defendant the search warrant and did not hear anyone give
defendant his Miranda rights. According to Pitts, the police
officers threatened to arrest her and take her son away if
defendant did not tell them if he had any weapons or drugs in the
apartment.
Alicea McCoy testified that she lives on the third floor of
9221 South Laflin Street. On October 11, 1993, she went to her
son's apartment after hearing noises, but the officer at the door
would not let her enter the apartment. In the hallway, Officer
O'Neill told McCoy that they were going to arrest Pitts and call
DCFS to take her grandson if she did not talk with her son about
cooperating with the police.
Defendant testified that he was seated in front of the
television when Pitts answered the door to the police. They told
her to sit on the sofa, then began questioning defendant. They
did not give him a copy of the search warrant or advise him of
his Miranda rights, but did ask if there were weapons or
narcotics in the apartment. After defendant's mother came to the
apartment, defendant spoke with her in the hallway. There,
O'Neill threatened to arrest Pitts and take her son to DCFS if
defendant did not cooperate with them.
Based on its determination that the State's witnesses were
more credible than defendant's witnesses, the trial court found
that Officer Cullom advised defendant of his Miranda rights
before any interrogation occurred. The court also found that
defendant's statements were not involuntary due to threats or
coercion by the police. As a result, the court denied
defendant's two motions to quash statements.
On January 24, 1996, the State asked that they be allowed to
amend count 1 of the information to read "heroin" instead of
"cocaine" because "cocaine" was a misprint. The trial court
allowed the amendment on the basis that it was a formal defect.
At trial, Officer Worshum testified that he searched the
bedroom located off the dining room. In the closet, he found
suspected marijuana, white powder, some electronic scales
containing white powder residue, a strainer with brown residue, a
box of clear sandwich bags, numerous zip-lock bags, empty
capsules, a small silver spoon, approximately 50 small silver
tinfoil packets, small red plastic envelopes, and three bottles
of Dormin, one of which contained pills. In the dresser, Worshum
found an Illinois State I.D. card, an electric bill, a gas bill,
a Chicago parking ticket notice, and an Illinois Environmental
Protection Agency notice, all with defendant's name and address.
According to Worshum, there was large male clothing in the
dresser and closet in the bedroom. The clothing would be
suitable for defendant, who was about 5 feet 11 inches tall and
over 270 pounds.
There was a stipulation that Arthur Kruski, a Chicago Police
Department forensic chemist, analyzed the contents of the
inventory. It contained 532.6 grams of cannabis and 45.78 grams
of heroin.
Alicea McCoy testified that defendant had a roommate,
Reginald Robinson, on October 11, 1993. McCoy stated that
defendant resided in the front bedroom, near the front door, and
Robinson resided in the middle bedroom, off the dining room.
Defendant testified that his bedroom was off the front door
and Robinson's bedroom was off the dining room. At the time of
trial, Robinson was in a federal prison in Duluth, Minnesota.
Defendant described Robinson as one-half inch taller and 100
pounds lighter than himself.
After closing arguments, the trial court found defendant
guilty of possession of heroin and marijuana with intent to
deliver. The court found that defendant had constructive
possession of the contraband confiscated, based on the several
pieces of defendant's identification and large male clothing
found in the bedroom where the drugs and paraphernalia were
found. The court determined that the clothes were defendant's,
considering the disparate sizes of defendant and Robinson.
Subsequently, defendant was sentenced to concurrent sentences of
six years' imprisonment for the heroin conviction and four years'
imprisonment for the marijuana conviction.
Defendant's first assertion is that the trial court erred
when it allowed the State to amend the information from
possession of cocaine with an intent to deliver to possession of
heroin with an intent to deliver. The State contends that the
change was a formal change, but defendant argues that it was a
substantive change.
Although a trial court's determination as to whether a
charging instrument complied with statutory requirements is
subject to de novo review (People v. Wilkinson, 285 Ill. App. 3d
727, 732, 674 N.E.2d 794 (1996)), an abuse of discretion standard
is used when reviewing the trial court's decision to allow or
deny an amendment to the charging instrument (People v. Wallace,
106 Ill. App. 3d 580, 583, 435 N.E.2d 1322 (1982)).
Section 111-5 of the Criminal Code permits a charging
instrument to be amended to correct formal defects, including a
miswriting. 725 ILCS 5/111-5 (West 1996); People v. Dunskus, 282
Ill. App. 3d 912, 916, 668 N.E.2d 1138 (1996); People v. Nemecek,
277 Ill. App. 3d 243, 246, 660 N.E.2d 133 (1995). The amendment
is permissible if the change is not material or does not alter
the nature and elements of the offense charged. Dunskus, 282
Ill. App. 3d at 916-17; Nemecek, 277 Ill. App. 3d at 246. A
formal amendment is warranted especially where there is no
resulting surprise or prejudice to the defendant or where the
record shows that he was otherwise aware of the actual charge.
Dunskus, 282 Ill. App. 3d at 917. If an amendment to an
information corrected a formal defect, no reverification is
required. People v. Hewitt, 212 Ill. App. 3d 496, 504, 571 N.E.2d 223 (1991).
This case is similar to People v. Flores, 250 Ill. App. 3d
399, 621 N.E.2d 142 (1993), on which the State relies. In
Flores, the defendant was charged with three counts of delivery
of a controlled substance. Two counts involved cocaine, and one
count involved heroin. Flores, 250 Ill. App. 3d at 399.
However, during the trial, a police officer testified that he
purchased cocaine from the defendant three times and there was a
stipulation that the substance sold on all three occasions was
cocaine. Flores, 250 Ill. App. 3d at 400.
During closing arguments, the trial court allowed the State
to amend the heroin count to cocaine. Flores, 250 Ill. App. 3d
at 400. The appellate court affirmed the conviction because the
amendment changed the type of controlled substance to reflect
what the grand jury intended to charge, which was delivery of
cocaine. Flores, 250 Ill. App. 3d at 403. Although the
indictment technically specified the substance as heroin, the
testimony before the grand jury established unequivocally that
the substance delivered was cocaine, not heroin. Flores, 250
Ill. App. 3d at 402. Similarly, all the evidence at trial
pertained exclusively to cocaine. Flores, 250 Ill. App. 3d at
402. As a result, the court concluded that the amendment was
formal and did not surprise or prejudice the defendant. Flores,
250 Ill. App. 3d at 403.
In this case, the original complaint, verified by Detective
O'Neill on October 12, 1993, charged defendant with the
possession of white heroin. At the preliminary hearing on
November 23, 1993, Detective O'Neill testified that the white
powder found in defendant's bedroom was sent to the crime lab,
where it tested positive for 45.78 grams of heroin.
Nevertheless, in error, the information, verified on December 6,
1993, charged defendant with possession of cocaine with the
intent to deliver. On January 24, 1996, four months before
trial, the State was allowed to amend the information to read
"heroin" instead of "cocaine" because "cocaine" was a miswriting.
The amendment was allowed by interlineation without
reverification.
Given all the evidence, we conclude that "cocaine" in the
information was in fact a miswriting. It is clear that the State
intended to charge defendant with possession of heroin with the
intent to deliver, not cocaine. The original complaint, the
testimony at the preliminary hearing, and the lab report
indicated that the substance involved was white heroin, not
cocaine. Thus, we find that the amendment properly corrected a
formal defect and did not need to be reverified.
Next, defendant argues that his right to a speedy trial was
violated because the State made a substantive change to the
information more than 700 days after he had demanded trial.
Because we have determined that the amendment to the information
corrected a formal defect, defendant's argument fails.
Defendant also asserts that the State failed to prove him
guilty beyond a reasonable doubt because it failed to prove that
he had constructive possession of the heroin and cannabis.
We disagree. The record shows that the trial court
carefully considered the evidence when determining whether
defendant had constructive possession. The court found that
defendant had constructive possession of the contraband
confiscated, based on the several pieces of defendant's
identification and the large male clothing found in the bedroom.
To sustain a charge of unlawful possession of a controlled
substance, the State must prove that the defendant knew of the
presence of the substance and that the substance was in the
defendant's immediate and exclusive control. People v. Frieberg,
147 Ill. 2d 326, 361, 589 N.E.2d 508 (1992); People v. Walensky,
286 Ill. App. 3d 82, 98, 675 N.E.2d 952 (1996). Possession of
drugs may be constructive, which exists without actual personal
present dominion over a controlled substance if there is an
intent and capability to maintain control and dominion.
Frieberg, 147 Ill. 2d at 361. If the narcotics are found on the
premises rather than on the defendant, the State must prove that
the defendant had control of the premises in order to permit the
inference that the defendant had knowledge and control over the
narcotics. Frieberg, 147 Ill. 2d at 361; People v. Valdez, 249
Ill. App. 3d 1058, 1062, 621 N.E.2d 35 (1993). Possession may be
proved by circumstantial evidence. Walensky, 286 Ill. App. 3d at
98; Valdez, 249 Ill. App. 3d at 1063.
When the sufficiency of the evidence is challenged, a
criminal conviction will not be set aside unless the evidence is
so improbable or unsatisfactory that it creates a reasonable
doubt of the defendant's guilt. People v. Gilliam, 172 Ill. 2d 484, 515, 670 N.E.2d 606 (1996); People v. McDonald, 168 Ill. 2d 420, 443, 660 N.E.2d 832 (1995). The reviewing court may not
retry the defendant. People v. Rivera, 166 Ill. 2d 279, 287, 652 N.E.2d 307 (1995). Instead, the trier of fact has the
responsibility to determine the credibility of the witnesses, the
weight given their testimony, and the reasonable inferences to be
drawn from the evidence. People v. Enis, 163 Ill. 2d 367, 393,
645 N.E.2d 856 (1994); People v. Mullen, 141 Ill. 2d 394, 403,
566 N.E.2d 222 (1990). The relevant inquiry is whether, after
viewing the evidence in the light most favorable to the
prosecution, a rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789 (1979); Gilliam, 172 Ill. 2d at 515.
Considering the evidence in the light most favorable to the
prosecution, we find that defendant was proven guilty beyond a
reasonable doubt. The trial court carefully considered all the
evidence when making its decision. Because the evidence was not
so improbable or unsatisfactory that it created a reasonable
doubt of the defendant's guilt, we affirm the conviction.
Defendant's next assertion is that the trial court erred by
denying a Frank's hearing on the basis that Detective O'Neill,
the affiant, knew or should have known that the information
supplied by the informant was false.
The U.S. Supreme Court held in Franks v. Delaware, 438 U.S. 154, 155-56, 57 L. Ed. 2d 667, 672, 98 S. Ct. 2674, 2676 (1978),
that the fourth amendment requires that a hearing be held at the
defendant's request if he or she makes a substantial preliminary
showing that a false statement knowingly and intentionally, or
with reckless disregard for the truth, was included by the
affiant in the warrant affidavit, and if the allegedly false
statement is necessary to the finding of probable cause. People
v. Taylor, 269 Ill. App. 3d 772, 779, 646 N.E.2d 1280 (1995).
In Franks, the Supreme Court explained the procedure as
follows:
"There is***a presumption of validity with
respect to the affidavit supporting the
search warrant. To mandate an evidentiary
hearing, the challenger's attack must be more
than conclusory and must be supported by more
than a mere desire to cross examine. There
must be allegations of deliberate falsehood
or of reckless disregard for the truth, and
those allegations must be accompanied by an
offer of proof. They should point out
specifically the portion of the warrant
affidavit that is claimed to be false; and
they should be accompanied by a statement of
supporting reasons. Affidavits or sworn or
otherwise reliable statements of witnesses
should be furnished, or their absence
satisfactorily explained. Allegations of
negligence or innocent mistake are
insufficient. The deliberate falsity or
reckless disregard whose impeachment is
permitted***is only that of the affiant, not
of any non-governmental informant." Franks,
438 U.S. at 171, 57 L. Ed. 2d at 682, 98 S. Ct. at 2684.
For a substantial preliminary showing, a defendant faced
with anonymous-informant-based warrants is not required to
establish what the alleged informant did or did not say. People
v. Lucente, 116 Ill. 2d 133, 150, 506 N.E.2d 1269 (1987); Taylor,
269 Ill. App. 3d at 780. The amount of proof required to trigger
a hearing lies somewhere between mere denials by the defendant
and proof by a preponderance of the evidence. Lucente, 116 Ill. 2d at 152. When the defendant's challenge is based on an alibi,
the determination must be based on a careful balancing of the
statements in the warrant affidavit versus those in support of
the defendant's challenge to the warrant. Lucente, 116 Ill. 2d
at 152. Whether the defendant has made a sufficient "substantial
preliminary showing" is a matter within the trial court's
discretion. People v. Phillips, 265 Ill. App. 3d 438, 445, 637 N.E.2d 715 (1994).
The following cases are helpful. In People v. Phillips, 265
Ill. App. 3d 438, 445, 637 N.E.2d 715 (1994), the affidavits
presented by the defendant that he did not sell drugs to anyone
on the day in question did not rise to the level of making a
substantial preliminary showing of a deliberate falsehood. The
affidavits were from the defendant, his mother, and a friend, all
interested parties, which tend to be weaker support for a motion
to quash the warrant. Phillips, 265 Ill. App. 3d at 445. More
importantly, the affidavits did not establish that the defendant
could not have sold cocaine to the informant on the day in
question. Phillips, 265 Ill. App. 3d at 445.
First, the defendant's mother stated that she was in the
apartment all day and did not observe any drug sales. However,
as the trial judge noted, the affidavit did not state whether the
defendant's mother had a clear view of the door and the remainder
of the premises. Phillips, 265 Ill. App. 3d at 445. Second, the
defendant's friend asserted that he was asleep the entire day,
which did not allow him to be aware of everyone who may have
entered the apartment. Phillips, 265 Ill. App. 3d at 445. In
the defendant's affidavit, he asserted that he was asleep the
whole time, which did not create enough doubt concerning the
truthfulness of the search warrant affidavit. Phillips, 265 Ill.
App. 3d at 445.
In People v. Tovar, 169 Ill. App. 3d 986, 989, 523 N.E.2d 1178 (1988), the affidavit for the search warrant stated that the
informant told the officer that on July 25, 1983, while he was in
the second-floor apartment, he purchased two grams of heroin for
$200 from an Hispanic man known as Domingo. Tovar, 169 Ill. App.
3d at 989. The informant said that he used a quantity of the
brown powder purchased from Domingo and determined it to be
heroin. Tovar, 169 Ill. App. 3d at 989. The informant had been
a regular user of heroin and other controlled substances for the
past five years. Tovar, 169 Ill. App. 3d at 989.
To support his motion for a Franks hearing, the defendant
presented two affidavits. Tovar, 169 Ill. App. 3d at 991. One
was his own affidavit, saying that he went to work on that day,
returned at 4:45 p.m., had dinner with his family, went out at 6
p.m. to visit friends, and did not return until 10:30 p.m.
Tovar, 169 Ill. App. 3d at 991. The defendant also presented his
wife's affidavit, which corroborated his affidavit. Tovar, 169
Ill. App. 3d at 991.
The reviewing court ruled that the defendant was not
entitled to an evidentiary hearing under Franks. Tovar, 169 Ill.
App. 3d at 991. Not only were the affidavits from interested
parties, but they did not establish that it was impossible for
the informant to have bought heroin from the defendant as he
described. Tovar, 169 Ill. App. 3d at 991.
In People v. Torres, 200 Ill. App. 3d 253, 263, 558 N.E.2d 645 (1990), the police officer stated in the affidavit for a
search warrant that the informant was at the defendant's house
within 48 hours before 4:05 p.m. on June 2. The defendant
attached her own affidavit, her babysitter's affidavit, and an
affidavit by an employee of a moving company to her motion for a
Franks hearing. Torres, 200 Ill. App. 3d at 262-63. Those
affidavits asserted that the only people at the defendant's home
on May 31, June 1, and June 2 were the defendant, her two
children, her boyfriend, her babysitter, and employees of a
moving company. On May 31, the moving company employees were
moving her furniture from 12 to 6 p.m., and on June 1, they were
at the house from 12 to 8 p.m. On June 2, the defendant left the
house at 7:45 a.m. with her children and her babysitter and
returned with the same occupants at 9 a.m. The only person
present when she returned was her boyfriend. At 10:30 a.m.,
defendant left by herself and returned at 12:30 p.m. The only
people at the house until 4:30 p.m., when she left the house
again, were her children and her babysitter. The defendant
returned to the house at 5:30 p.m. At no time on June 2, 1988,
did the defendant show anyone cocaine in her residence. Torres,
200 Ill. App. 3d at 262. The affidavits by the babysitter and
the moving company employee essentially corroborated the
defendant's affidavit. Torres, 200 Ill. App. 3d at 262-63.
The appellate court ruled that the affidavits failed to
establish a substantial preliminary showing under Franks.
Torres, 200 Ill. App. 3d at 263. The defendant's affidavit was
merely a denial and the other affidavits did not cover the entire
48 hours. Torres, 200 Ill. App. 3d at 263.
In People v. Pavone, 241 Ill. App. 3d 1001, 1003, 609 N.E.2d 906 (1993), the officer stated in the complaint for a search
warrant that a confidential informant told him that on August 1,
1989, the informant purchased drugs from a white man known as
Angelo. Attached to the defendant's Franks motion was an
affidavit from the defendant stating that he awoke at 1 p.m. on
August 1, 1989, arrived at his place of business at 1:30 p.m.,
and discovered that his telephone had been disconnected. Pavone,
241 Ill. App. 3d at 1006. He went to a currency exchange to pay
his phone bill and returned to work. An affidavit from the
defendant's wife corroborated the time the defendant left the
house. Pavone, 241 Ill. App. 3d at 1006. An affidavit from the
owner of the currency exchange stated that the defendant was at
the currency exchange on the afternoon of August 1, 1989, and
paid an overdue bill. Pavone, 241 Ill. App. 3d at 1006. Based
on these affidavits, the trial court's decision denying defendant
a Franks hearing was not an abuse of discretion. Pavone, 241
Ill. App. 3d at 1006.
Based on the above cases and the evidence in this case, we
conclude that the trial court did not abuse its discretion when
it denied defendant's motion for a Franks hearing. In his
complaint for a search warrant, Detective O'Neill stated that an
informant told him that he was at defendant's apartment on
October 10, 1993. Defendant submitted several affidavits with
his motion for a Franks hearing. In his own affidavit, he stated
that his roommate and his roommate's girlfriend were in the
roommate's room when defendant arrived home on the evening of
October 9, 1993. Defendant's mother woke him up at 8 a.m. on
October 10, 1993. Between 8:45 a.m. and 9 a.m., he spoke to his
roommate before leaving the apartment building with his mother.
After picking up his grandmother, he took the two women shopping
for about three hours. When defendant returned to his apartment,
his roommate and the roommate's girlfriend were there. Defendant
stayed in the apartment for five to ten minutes before going to
his mother's apartment, where he stayed until a friend picked him
up. Defendant went to his friend's home until he returned to his
apartment about 11 p.m. Defendant immediately went to sleep and
did not awake until 9 a.m. the next morning.
Defendant's mother stated in her affidavit that she woke
defendant at 8 a.m. on October 10, 1993. Between 9 and 9:30
a.m., defendant drove her to her mother's house. After picking
up her mother, the three of them went shopping and then to lunch.
After lunch, they went home. At 1:15 p.m., defendant was in her
apartment. He called some friends to pick him up and stayed
until they arrived. Defendant's mother did not hear defendant
return home before she went to bed around 10 p.m. that night.
Joseph Stamps, the friend who defendant called for a ride,
stated in his affidavit that defendant called him at 1:15 p.m. on
October 10, 1993. Stamps's brother picked up defendant and took
him to Stamps's home, where defendant stayed until Stamps drove
him home, arriving at defendant's apartment between 11 and 11:15
p.m.
Angela Ross, defendant's roommate's girlfriend, stated in
her affidavit that she and defendant's roommate were in
defendant's apartment until 1:30 p.m. on October 10, 1993.
Defendant left around 9:30 a.m. and returned about 1:30 p.m. She
did not see anyone come to the apartment during the time
defendant was in the apartment.
Reginald Robinson, defendant's roommate, stated in an
affidavit that defendant left the apartment at 9:30 a.m. and
returned at 1:15 p.m. on October 10, 1993. No one came to the
apartment while defendant was there. Robinson spoke briefly with
defendant before leaving the apartment shortly after 1:15 p.m.
Robinson did not return until the next evening.
We find that the affidavits were not sufficient to establish
that the trial court abused its discretion in denying defendant's
motion for a Franks hearing. Not only were the affidavits
executed by interested parties, but there were times when
defendant was in his apartment on October 10, 1993, during which
time the informant could have purchased narcotics from him:
between midnight and 9 a.m., the five or ten minutes when he
returned from shopping, and after 11 p.m. when he returned home.
Next, defendant asserts that the statements he made during
the search were involuntary because he was not given his Miranda
rights and he was coerced by the police officer's threats against
his son and the mother of his son. Both arguments are meritless.
The test for the voluntariness of a confession is whether,
under the totality of the circumstances, the statement was made
freely, without compulsion or inducement, with consideration
given to the characteristics of the accused and the details of
the interrogation. People v. Jones, 156 Ill. 2d 225, 242, 620 N.E.2d 325 (1993). The trial court's function at the suppression
hearing is to determine the credibility of the witnesses and to
resolve any conflicts in their testimony. People v. Redd, 135 Ill. 2d 252, 289, 553 N.E.2d 316 (1990). The trial court's
finding that a confession was voluntary will not be overturned by
the reviewing court unless it is against the manifest weight of
the evidence. Jones, 156 Ill. 2d at 242-43; Thomas, 137 Ill. 2d
at 516. After considering the totality of the circumstances, we
find that the trial court's denial of defendant's motion to
suppress statements was not against the manifest weight of the
evidence.
Finally, defendant argues that the trial court erred when it
refused to allow testimony that defendant's roommate, Reginald
Robinson, had previously been convicted of possession with the
intent to distribute cocaine. Defendant asserts that the
excluded evidence was relevant under the theory of modus operandi
to show that Robinson had sole possession of the heroin in this
case. We reject this argument. The only evidence linking
Robinson to the white heroin was testimony by defendant and his
mother that the room where the heroin was found was Robinson's
room, not defendant's. However, the identification found in the
room belonged to defendant and the clothes found were in
defendant's size, not Robinson's size. As a result, evidence of
Robinson's previous conviction was irrelevant.
Based on the foregoing, we affirm the circuit court's
judgment.
Affirmed.
McNamara, J., and Wolfson, J., concur.
MARCH 19, 1998
No. 1--96--4306
THE PEOPLE OF THE STATE OF ILLINOIS,
Plaintiff-Appellee,
v.
ROBAIRE MCCOY,
Defendant-Appellant. )
)
)
)
)
)
)
)
) Appeal from the
Circuit Court of
Cook County
No. 93--CR--28532
Honorable
Leo E. Holt,
Judge Presiding.
PRESIDING JUSTICE CERDA delivered the opinion of the court:
Following a bench trial, defendant, Robaire McCoy, was
convicted of possession of a controlled substance with the intent
to deliver (720 ILCS 570/401 (West 1992)) and possession of
cannabis with the intent to deliver (720 ILCS 550/5 (West 1992)).
He was sentenced to concurrent sentences of six years' and four
years' imprisonment. On appeal, defendant asserts that (1) the
trial court erred when it allowed the State to amend the
information; (2) his right to a speedy trial was violated; (3) he
was not proven guilty beyond a reasonable doubt; (4) the trial
court erred when it denied him a Franks hearing; (5) his
statement was involuntary; and (6) the trial court erred when it
did not allow certain testimony. For the following reasons, we
affirm.
On October 11, 1993, Chicago police detective Robert O'Neill
filed a complaint requesting a warrant to search the person of a
black man named Tony, who was approximately 25 years old, 5 foot
10 inches tall, and 320 pounds, and the second floor apartment at
9221 South Laflin Street, Chicago. In his complaint, Detective
O'Neill stated that an informant told him that the informant was
at the apartment on October 10, 1993. After Tony let the
informant into the apartment, he and Tony discussed the sale of
white heroin. Tony went to a different part of the apartment and
returned with a paper bag, from which he removed a large plastic
bag containing a white powder and an electronic scale. After
weighing a portion of the white powder, Tony gave it to the
informant, who gave Tony $40 in return. The informant tested the
powder on his tongue and determined it to be heroin. O'Neill
further stated that he had known the informant for at least one
year. During the previous six months, the informant had given
O'Neill information three times, which led to the recovery of
heroin, cocaine, and unlawfully possessed firearms.
According to O'Neill's testimony at the hearing to suppress
defendant's statements, he and five other police officers went to
the second floor apartment at 9221 South Laflin Street at 9 p.m.
on October 11, 1993. When defendant answered the door, O'Neill
learned that he was Tony, then gave him the search warrant.
Detective Dennis Cullom advised defendant of his Miranda rights.
Tracy Pitts, the mother of defendant's son, was 15 to 20 feet
away. O'Neill denied that he or any other police officer
threatened to arrest Pitts or take her three-year-old son to the
Department of Children and Family Services (DCFS) if defendant
did not confess to criminal activity. O'Neill spoke to Alicea
McCoy, defendant's mother, when she came to the apartment door
during the search, but did not allow her into the apartment.
O'Neill denied ever telling McCoy that Pitts might be arrested
and her son taken to the DCFS.
Chicago police detective Dennis Cullom and Chicago police
officer Steven Worshum testified that neither they nor any other
police officer in their presence threatened to arrest Pitts or
take her son to DCFS if defendant failed to confess to criminal
activity.
Tracy Pitts testified that she answered the door when the
police arrived. Defendant was sitting in the living room,
playing a video game. Their three-year-old son was also present.
The police officers told Pitts to sit in the living room and
asked defendant for his name. Pitts did not see anyone hand
defendant the search warrant and did not hear anyone give
defendant his Miranda rights. According to Pitts, the police
officers threatened to arrest her and take her son away if
defendant did not tell them if he had any weapons or drugs in the
apartment.
Alicea McCoy testified that she lives on the third floor of
9221 South Laflin Street. On October 11, 1993, she went to her
son's apartment after hearing noises, but the officer at the door
would not let her enter the apartment. In the hallway, Officer
O'Neill told McCoy that they were going to arrest Pitts and call
DCFS to take her grandson if she did not talk with her son about
cooperating with the police.
Defendant testified that he was seated in front of the
television when Pitts answered the door to the police. They told
her to sit on the sofa, then began questioning defendant. They
did not give him a copy of the search warrant or advise him of
his Miranda rights, but did ask if there were weapons or
narcotics in the apartment. After defendant's mother came to the
apartment, defendant spoke with her in the hallway. There,
O'Neill threatened to arrest Pitts and take her son to DCFS if
defendant did not cooperate with them.
Based on its determination that the State's witnesses were
more credible than defendant's witnesses, the trial court found
that Officer Cullom advised defendant of his Miranda rights
before any interrogation occurred. The court also found that
defendant's statements were not involuntary due to threats or
coercion by the police. As a result, the court denied
defendant's two motions to quash statements.
On January 24, 1996, the State asked that they be allowed to
amend count 1 of the information to read "heroin" instead of
"cocaine" because "cocaine" was a misprint. The trial court
allowed the amendment on the basis that it was a formal defect.
At trial, Officer Worshum testified that he searched the
bedroom located off the dining room. In the closet, he found
suspected marijuana, white powder, some electronic scales
containing white powder residue, a strainer with brown residue, a
box of clear sandwich bags, numerous zip-lock bags, empty
capsules, a small silver spoon, approximately 50 small silver
tinfoil packets, small red plastic envelopes, and three bottles
of Dormin, one of which contained pills. In the dresser, Worshum
found an Illinois State I.D. card, an electric bill, a gas bill,
a Chicago parking ticket notice, and an Illinois Environmental
Protection Agency notice, all with defendant's name and address.
According to Worshum, there was large male clothing in the
dresser and closet in the bedroom. The clothing would be
suitable for defendant, who was about 5 feet 11 inches tall and
over 270 pounds.
There was a stipulation that Arthur Kruski, a Chicago Police
Department forensic chemist, analyzed the contents of the
inventory. It contained 532.6 grams of cannabis and 45.78 grams
of heroin.
Alicea McCoy testified that defendant had a roommate,
Reginald Robinson, on October 11, 1993. McCoy stated that
defendant resided in the front bedroom, near the front door, and
Robinson resided in the middle bedroom, off the dining room.
Defendant testified that his bedroom was off the front door
and Robinson's bedroom was off the dining room. At the time of
trial, Robinson was in a federal prison in Duluth, Minnesota.
Defendant described Robinson as one-half inch taller and 100
pounds lighter than himself.
After closing arguments, the trial court found defendant
guilty of possession of heroin and marijuana with intent to
deliver. The court found that defendant had constructive
possession of the contraband confiscated, based on the several
pieces of defendant's identification and large male clothing
found in the bedroom where the drugs and paraphernalia were
found. The court determined that the clothes were defendant's,
considering the disparate sizes of defendant and Robinson.
Subsequently, defendant was sentenced to concurrent sentences of
six years' imprisonment for the heroin conviction and four years'
imprisonment for the marijuana conviction.
Defendant's first assertion is that the trial court erred
when it allowed the State to amend the information from
possession of cocaine with an intent to deliver to possession of
heroin with an intent to deliver. The State contends that the
change was a formal change, but defendant argues that it was a
substantive change.
Although a trial court's determination as to whether a
charging instrument complied with statutory requirements is
subject to de novo review (People v. Wilkinson, 285 Ill. App. 3d
727, 732, 674 N.E.2d 794 (1996)), an abuse of discretion standard
is used when reviewing the trial court's decision to allow or
deny an amendment to the charging instrument (People v. Wallace,
106 Ill. App. 3d 580, 583, 435 N.E.2d 1322 (1982)).
Section 111-5 of the Criminal Code permits a charging
instrument to be amended to correct formal defects, including a
miswriting. 725 ILCS 5/111-5 (West 1996); People v. Dunskus, 282
Ill. App. 3d 912, 916, 668 N.E.2d 1138 (1996); People v. Nemecek,
277 Ill. App. 3d 243, 246, 660 N.E.2d 133 (1995). The amendment
is permissible if the change is not material or does not alter
the nature and elements of the offense charged. Dunskus, 282
Ill. App. 3d at 916-17; Nemecek, 277 Ill. App. 3d at 246. A
formal amendment is warranted especially where there is no
resulting surprise or prejudice to the defendant or where the
record shows that he was otherwise aware of the actual charge.
Dunskus, 282 Ill. App. 3d at 917. If an amendment to an
information corrected a formal defect, no reverification is
required. People v. Hewitt, 212 Ill. App. 3d 496, 504, 571 N.E.2d 223 (1991).
This case is similar to People v. Flores, 250 Ill. App. 3d
399, 621 N.E.2d 142 (1993), on which the State relies. In
Flores, the defendant was charged with three counts of delivery
of a controlled substance. Two counts involved cocaine, and one
count involved heroin. Flores, 250 Ill. App. 3d at 399.
However, during the trial, a police officer testified that he
purchased cocaine from the defendant three times and there was a
stipulation that the substance sold on all three occasions was
cocaine. Flores, 250 Ill. App. 3d at 400.
During closing arguments, the trial court allowed the State
to amend the heroin count to cocaine. Flores, 250 Ill. App. 3d
at 400. The appellate court affirmed the conviction because the
amendment changed the type of controlled substance to reflect
what the grand jury intended to charge, which was delivery of
cocaine. Flores, 250 Ill. App. 3d at 403. Although the
indictment technically specified the substance as heroin, the
testimony before the grand jury established unequivocally that
the substance delivered was cocaine, not heroin. Flores, 250
Ill. App. 3d at 402. Similarly, all the evidence at trial
pertained exclusively to cocaine. Flores, 250 Ill. App. 3d at
402. As a result, the court concluded that the amendment was
formal and did not surprise or prejudice the defendant. Flores,
250 Ill. App. 3d at 403.
In this case, the original complaint, verified by Detective
O'Neill on October 12, 1993, charged defendant with the
possession of white heroin. At the preliminary hearing on
November 23, 1993, Detective O'Neill testified that the white
powder found in defendant's bedroom was sent to the crime lab,
where it tested positive for 45.78 grams of heroin.
Nevertheless, in error, the information, verified on December 6,
1993, charged defendant with possession of cocaine with the
intent to deliver. On January 24, 1996, four months before
trial, the State was allowed to amend the information to read
"heroin" instead of "cocaine" because "cocaine" was a miswriting.
The amendment was allowed by interlineation without
reverification.
Given all the evidence, we conclude that "cocaine" in the
information was in fact a miswriting. It is clear that the State
intended to charge defendant with possession of heroin with the
intent to deliver, not cocaine. The original complaint, the
testimony at the preliminary hearing, and the lab report
indicated that the substance involved was white heroin, not
cocaine. Thus, we find that the amendment properly corrected a
formal defect and did not need to be reverified.
Next, defendant argues that his right to a speedy trial was
violated because the State made a substantive change to the
information more than 700 days after he had demanded trial.
Because we have determined that the amendment to the information
corrected a formal defect, defendant's argument fails.
Defendant also asserts that the State failed to prove him
guilty beyond a reasonable doubt because it failed to prove that
he had constructive possession of the heroin and cannabis.
We disagree. The record shows that the trial court
carefully considered the evidence when determining whether
defendant had constructive possession. The court found that
defendant had constructive possession of the contraband
confiscated, based on the several pieces of defendant's
identification and the large male clothing found in the bedroom.
To sustain a charge of unlawful possession of a controlled
substance, the State must prove that the defendant knew of the
presence of the substance and that the substance was in the
defendant's immediate and exclusive control. People v. Frieberg,
147 Ill. 2d 326, 361, 589 N.E.2d 508 (1992); People v. Walensky,
286 Ill. App. 3d 82, 98, 675 N.E.2d 952 (1996). Possession of
drugs may be constructive, which exists without actual personal
present dominion over a controlled substance if there is an
intent and capability to maintain control and dominion.
Frieberg, 147 Ill. 2d at 361. If the narcotics are found on the
premises rather than on the defendant, the State must prove that
the defendant had control of the premises in order to permit the
inference that the defendant had knowledge and control over the
narcotics. Frieberg, 147 Ill. 2d at 361; People v. Valdez, 249
Ill. App. 3d 1058, 1062, 621 N.E.2d 35 (1993). Possession may be
proved by circumstantial evidence. Walensky, 286 Ill. App. 3d at
98; Valdez, 249 Ill. App. 3d at 1063.
When the sufficiency of the evidence is challenged, a
criminal conviction will not be set aside unless the evidence is
so improbable or unsatisfactory that it creates a reasonable
doubt of the defendant's guilt. People v. Gilliam, 172 Ill. 2d 484, 515, 670 N.E.2d 606 (1996); People v. McDonald, 168 Ill. 2d 420, 443, 660 N.E.2d 832 (1995). The reviewing court may not
retry the defendant. People v. Rivera, 166 Ill. 2d 279, 287, 652 N.E.2d 307 (1995). Instead, the trier of fact has the
responsibility to determine the credibility of the witnesses, the
weight given their testimony, and the reasonable inferences to be
drawn from the evidence. People v. Enis, 163 Ill. 2d 367, 393,
645 N.E.2d 856 (1994); People v. Mullen, 141 Ill. 2d 394, 403,
566 N.E.2d 222 (1990). The relevant inquiry is whether, after
viewing the evidence in the light most favorable to the
prosecution, a rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789 (1979); Gilliam, 172 Ill. 2d at 515.
Considering the evidence in the light most favorable to the
prosecution, we find that defendant was proven guilty beyond a
reasonable doubt. The trial court carefully considered all the
evidence when making its decision. Because the evidence was not
so improbable or unsatisfactory that it created a reasonable
doubt of the defendant's guilt, we affirm the conviction.
Defendant's next assertion is that the trial court erred by
denying a Frank's hearing on the basis that Detective O'Neill,
the affiant, knew or should have known that the information
supplied by the informant was false.
The U.S. Supreme Court held in Franks v. Delaware, 438 U.S. 154, 155-56, 57 L. Ed. 2d 667, 672, 98 S. Ct. 2674, 2676 (1978),
that the fourth amendment requires that a hearing be held at the
defendant's request if he or she makes a substantial preliminary
showing that a false statement knowingly and intentionally, or
with reckless disregard for the truth, was included by the
affiant in the warrant affidavit, and if the allegedly false
statement is necessary to the finding of probable cause. People
v. Taylor, 269 Ill. App. 3d 772, 779, 646 N.E.2d 1280 (1995).
In Franks, the Supreme Court explained the procedure as
follows:
"There is***a presumption of validity with
respect to the affidavit supporting the
search warrant. To mandate an evidentiary
hearing, the challenger's attack must be more
than conclusory and must be supported by more
than a mere desire to cross examine. There
must be allegations of deliberate falsehood
or of reckless disregard for the truth, and
those allegations must be accompanied by an
offer of proof. They should point out
specifically the portion of the warrant
affidavit that is claimed to be false; and
they should be accompanied by a statement of
supporting reasons. Affidavits or sworn or
otherwise reliable statements of witnesses
should be furnished, or their absence
satisfactorily explained. Allegations of
negligence or innocent mistake are
insufficient. The deliberate falsity or
reckless disregard whose impeachment is
permitted***is only that of the affiant, not
of any non-governmental informant." Franks,
438 U.S. at 171, 57 L. Ed. 2d at 682, 98 S. Ct. at 2684.
For a substantial preliminary showing, a defendant faced
with anonymous-informant-based warrants is not required to
establish what the alleged informant did or did not say. People
v. Lucente, 116 Ill. 2d 133, 150, 506 N.E.2d 1269 (1987); Taylor,
269 Ill. App. 3d at 780. The amount of proof required to trigger
a hearing lies somewhere between mere denials by the defendant
and proof by a preponderance of the evidence. Lucente, 116 Ill. 2d at 152. When the defendant's challenge is based on an alibi,
the determination must be based on a careful balancing of the
statements in the warrant affidavit versus those in support of
the defendant's challenge to the warrant. Lucente, 116 Ill. 2d
at 152. Whether the defendant has made a sufficient "substantial
preliminary showing" is a matter within the trial court's
discretion. People v. Phillips, 265 Ill. App. 3d 438, 445, 637 N.E.2d 715 (1994).
The following cases are helpful. In People v. Phillips, 265
Ill. App. 3d 438, 445, 637 N.E.2d 715 (1994), the affidavits
presented by the defendant that he did not sell drugs to anyone
on the day in question did not rise to the level of making a
substantial preliminary showing of a deliberate falsehood. The
affidavits were from the defendant, his mother, and a friend, all
interested parties, which tend to be weaker support for a motion
to quash the warrant. Phillips, 265 Ill. App. 3d at 445. More
importantly, the affidavits did not establish that the defendant
could not have sold cocaine to the informant on the day in
question. Phillips, 265 Ill. App. 3d at 445.
First, the defendant's mother stated that she was in the
apartment all day and did not observe any drug sales. However,
as the trial judge noted, the affidavit did not state whether the
defendant's mother had a clear view of the door and the remainder
of the premises. Phillips, 265 Ill. App. 3d at 445. Second, the
defendant's friend asserted that he was asleep the entire day,
which did not allow him to be aware of everyone who may have
entered the apartment. Phillips, 265 Ill. App. 3d at 445. In
the defendant's affidavit, he asserted that he was asleep the
whole time, which did not create enough doubt concerning the
truthfulness of the search warrant affidavit. Phillips, 265 Ill.
App. 3d at 445.
In People v. Tovar, 169 Ill. App. 3d 986, 989, 523 N.E.2d 1178 (1988), the affidavit for the search warrant stated that the
informant told the officer that on July 25, 1983, while he was in
the second-floor apartment, he purchased two grams of heroin for
$200 from an Hispanic man known as Domingo. Tovar, 169 Ill. App.
3d at 989. The informant said that he used a quantity of the
brown powder purchased from Domingo and determined it to be
heroin. Tovar, 169 Ill. App. 3d at 989. The informant had been
a regular user of heroin and other controlled substances for the
past five years. Tovar, 169 Ill. App. 3d at 989.
To support his motion for a Franks hearing, the defendant
presented two affidavits. Tovar, 169 Ill. App. 3d at 991. One
was his own affidavit, saying that he went to work on that day,
returned at 4:45 p.m., had dinner with his family, went out at 6
p.m. to visit friends, and did not return until 10:30 p.m.
Tovar, 169 Ill. App. 3d at 991. The defendant also presented his
wife's affidavit, which corroborated his affidavit. Tovar, 169
Ill. App. 3d at 991.
The reviewing court ruled that the defendant was not
entitled to an evidentiary hearing under Franks. Tovar, 169 Ill.
App. 3d at 991. Not only were the affidavits from interested
parties, but they did not establish that it was impossible for
the informant to have bought heroin from the defendant as he
described. Tovar, 169 Ill. App. 3d at 991.
In People v. Torres, 200 Ill. App. 3d 253, 263, 558 N.E.2d 645 (1990), the police officer stated in the affidavit for a
search warrant that the informant was at the defendant's house
within 48 hours before 4:05 p.m. on June 2. The defendant
attached her own affidavit, her babysitter's affidavit, and an
affidavit by an employee of a moving company to her motion for a
Franks hearing. Torres, 200 Ill. App. 3d at 262-63. Those
affidavits asserted that the only people at the defendant's home
on May 31, June 1, and June 2 were the defendant, her two
children, her boyfriend, her babysitter, and employees of a
moving company. On May 31, the moving company employees were
moving her furniture from 12 to 6 p.m., and on June 1, they were
at the house from 12 to 8 p.m. On June 2, the defendant left the
house at 7:45 a.m. with her children and her babysitter and
returned with the same occupants at 9 a.m. The only person
present when she returned was her boyfriend. At 10:30 a.m.,
defendant left by herself and returned at 12:30 p.m. The only
people at the house until 4:30 p.m., when she left the house
again, were her children and her babysitter. The defendant
returned to the house at 5:30 p.m. At no time on June 2, 1988,
did the defendant show anyone cocaine in her residence. Torres,
200 Ill. App. 3d at 262. The affidavits by the babysitter and
the moving company employee essentially corroborated the
defendant's affidavit. Torres, 200 Ill. App. 3d at 262-63.
The appellate court ruled that the affidavits failed to
establish a substantial preliminary showing under Franks.
Torres, 200 Ill. App. 3d at 263. The defendant's affidavit was
merely a denial and the other affidavits did not cover the entire
48 hours. Torres, 200 Ill. App. 3d at 263.
In People v. Pavone, 241 Ill. App. 3d 1001, 1003, 609 N.E.2d 906 (1993), the officer stated in the complaint for a search
warrant that a confidential informant told him that on August 1,
1989, the informant purchased drugs from a white man known as
Angelo. Attached to the defendant's Franks motion was an
affidavit from the defendant stating that he awoke at 1 p.m. on
August 1, 1989, arrived at his place of business at 1:30 p.m.,
and discovered that his telephone had been disconnected. Pavone,
241 Ill. App. 3d at 1006. He went to a currency exchange to pay
his phone bill and returned to work. An affidavit from the
defendant's wife corroborated the time the defendant left the
house. Pavone, 241 Ill. App. 3d at 1006. An affidavit from the
owner of the currency exchange stated that the defendant was at
the currency exchange on the afternoon of August 1, 1989, and
paid an overdue bill. Pavone, 241 Ill. App. 3d at 1006. Based
on these affidavits, the trial court's decision denying defendant
a Franks hearing was not an abuse of discretion. Pavone, 241
Ill. App. 3d at 1006.
Based on the above cases and the evidence in this case, we
conclude that the trial court did not abuse its discretion when
it denied defendant's motion for a Franks hearing. In his
complaint for a search warrant, Detective O'Neill stated that an
informant told him that he was at defendant's apartment on
October 10, 1993. Defendant submitted several affidavits with
his motion for a Franks hearing. In his own affidavit, he stated
that his roommate and his roommate's girlfriend were in the
roommate's room when defendant arrived home on the evening of
October 9, 1993. Defendant's mother woke him up at 8 a.m. on
October 10, 1993. Between 8:45 a.m. and 9 a.m., he spoke to his
roommate before leaving the apartment building with his mother.
After picking up his grandmother, he took the two women shopping
for about three hours. When defendant returned to his apartment,
his roommate and the roommate's girlfriend were there. Defendant
stayed in the apartment for five to ten minutes before going to
his mother's apartment, where he stayed until a friend picked him
up. Defendant went to his friend's home until he returned to his
apartment about 11 p.m. Defendant immediately went to sleep and
did not awake until 9 a.m. the next morning.
Defendant's mother stated in her affidavit that she woke
defendant at 8 a.m. on October 10, 1993. Between 9 and 9:30
a.m., defendant drove her to her mother's house. After picking
up her mother, the three of them went shopping and then to lunch.
After lunch, they went home. At 1:15 p.m., defendant was in her
apartment. He called some friends to pick him up and stayed
until they arrived. Defendant's mother did not hear defendant
return home before she went to bed around 10 p.m. that night.
Joseph Stamps, the friend who defendant called for a ride,
stated in his affidavit that defendant called him at 1:15 p.m. on
October 10, 1993. Stamps's brother picked up defendant and took
him to Stamps's home, where defendant stayed until Stamps drove
him home, arriving at defendant's apartment between 11 and 11:15
p.m.
Angela Ross, defendant's roommate's girlfriend, stated in
her affidavit that she and defendant's roommate were in
defendant's apartment until 1:30 p.m. on October 10, 1993.
Defendant left around 9:30 a.m. and returned about 1:30 p.m. She
did not see anyone come to the apartment during the time
defendant was in the apartment.
Reginald Robinson, defendant's roommate, stated in an
affidavit that defendant left the apartment at 9:30 a.m. and
returned at 1:15 p.m. on October 10, 1993. No one came to the
apartment while defendant was there. Robinson spoke briefly with
defendant before leaving the apartment shortly after 1:15 p.m.
Robinson did not return until the next evening.
We find that the affidavits were not sufficient to establish
that the trial court abused its discretion in denying defendant's
motion for a Franks hearing. Not only were the affidavits
executed by interested parties, but there were times when
defendant was in his apartment on October 10, 1993, during which
time the informant could have purchased narcotics from him:
between midnight and 9 a.m., the five or ten minutes when he
returned from shopping, and after 11 p.m. when he returned home.
Next, defendant asserts that the statements he made during
the search were involuntary because he was not given his Miranda
rights and he was coerced by the police officer's threats against
his son and the mother of his son. Both arguments are meritless.
The test for the voluntariness of a confession is whether,
under the totality of the circumstances, the statement was made
freely, without compulsion or inducement, with consideration
given to the characteristics of the accused and the details of
the interrogation. People v. Jones, 156 Ill. 2d 225, 242, 620 N.E.2d 325 (1993). The trial court's function at the suppression
hearing is to determine the credibility of the witnesses and to
resolve any conflicts in their testimony. People v. Redd, 135 Ill. 2d 252, 289, 553 N.E.2d 316 (1990). The trial court's
finding that a confession was voluntary will not be overturned by
the reviewing court unless it is against the manifest weight of
the evidence. Jones, 156 Ill. 2d at 242-43; Thomas, 137 Ill. 2d
at 516. After considering the totality of the circumstances, we
find that the trial court's denial of defendant's motion to
suppress statements was not against the manifest weight of the
evidence.
Finally, defendant argues that the trial court erred when it
refused to allow testimony that defendant's roommate, Reginald
Robinson, had previously been convicted of possession with the
intent to distribute cocaine. Defendant asserts that the
excluded evidence was relevant under the theory of modus operandi
to show that Robinson had sole possession of the heroin in this
case. We reject this argument. The only evidence linking
Robinson to the white heroin was testimony by defendant and his
mother that the room where the heroin was found was Robinson's
room, not defendant's. However, the identification found in the
room belonged to defendant and the clothes found were in
defendant's size, not Robinson's size. As a result, evidence of
Robinson's previous conviction was irrelevant.
Based on the foregoing, we affirm the circuit court's
judgment.
Affirmed.
McNamara, J., and Wolfson, J., concur.
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