ellee,
)
Cook County.
)
v.
)
No. 05 CR 7923
)
CLEO BELL,
)
Honorable
)
Joseph M. Claps,
Defendant-Appellant.
)
Judge Presiding.
JUSTICE ROBERT E. GORDON delivered the opinion of the court:
Defendant Cleo Bell was convicted of possession of a controlled substance with intent to
deliver after a bench trial. A sentencing hearing was conducted where mitigation and aggravation
were presented. The trial court sentenced defendant to 38 months in the Illinois Department of
Corrections, with a credit of 122 days for time served while awaiting sentencing, and assessed
fines and fees in the amount of $1,114. Defendant filed a motion for a new trial, which was
denied. Defendant appeals arguing that (1) the trial court violated defendants sixth amendment
right to confront witnesses against him when the trial court did not allow defendant to cross
examine the surveillance officer as to his exact surveillance location, (2) the trial court erred by
failing to appoint new counsel to represent defendant on his posttrial claim that his attorney took
insufficient steps to locate a key witness, and (3) the trial court improperly assessed a $20 Violent
Crime Victims Assistance Fund fine.
1 No. 1-05-2493
Paralysis Cure Research Trust Fund fine is unconstitutional in light of our Illinois Supreme
Courts decision in People v. Jones, 223 Ill. 2d 569, 605-06 (2006), which upheld the fines
constitutionality.
2
BACKGROUND
Officers Fron and Purvis of the Chicago police department were part of a surveillance
team in the area of a vacant lot located at 4413 West Gladys Street (subject property) on March
1, 2005, at approximately 11 a.m. Officer Fron was the surveillance officer for the operation.
Officer Fron testified that he had a southwest view of the subject property from an elevated
position approximately 20 feet above ground level. Officer Purvis was positioned at the West
4300 block of Adams Street and was in radio contact with Officer Fron but did not have a view of
the subject property.
From his surveillance point, Officer Fron observed defendant standing alone in the vacant
lot located at the subject property yelling blows to passing motorists and pedestrians. Officer
Fron testified that the nearest person to defendant was 80 to 90 feet away. About eight or nine
minutes after setting up surveillance, Officer Fron observed a blue automobile driven by a white
male pull over to the curb of the street in front of defendant. After a brief conversation, the driver
of the blue automobile handed defendant money, which he placed in his pants pocket. Officer
Fron then observed defendant walk approximately 30 feet to a covered black garbage can.
Without opening the garbage can, the defendant retrieved a brown paper bag that was wedged
between the plastic lid covering the garbage can and the garbage can itself. Defendant opened the No. 1-05-2493
3
brown paper bag and removed a clear plastic bag containing several shiny items. Defendant
removed one of the shiny items, placed the clear plastic bag inside the brown paper bag and
returned the brown paper bag to its original location wedged between the garbage can and the
garbage can lid. Defendant walked back to the blue automobile and handed the shiny item to the
driver. The driver of the blue automobile drove off after receiving the shiny item and was never
stopped by the police.
Believing that he had witnessed a drug transaction, Officer Fron radioed Officer Purvis to
pick him up from his surveillance location. Together, the officers proceeded to defendants
location in Officer Purviss squad car. Officer Fron lost sight of defendant for approximately two
to three minutes while traveling from his surveillance location to defendants location. The
officers arrived at the subject property and detained the defendant. The nearest person to
defendant when the police detained him was 30 feet away. Officer Fron then went to the subject
garbage can and retrieved the brown bag, which contained a clear plastic bag and five tinfoil
packets containing suspected heroin. After the officers placed defendant under arrest, a search of
defendants person revealed $74, but no narcotics.
The officers then transported defendant and the suspected narcotics to the police station.
The officers placed the five tinfoil packets of suspected heroin, the brown paper bag, and the clear
plastic bag into an inventory bag, wrote the case information on the inventory bag, entered the
same information into the station computer, and assigned the inventory bag and its contents an
inventory number and gave it to the officer in charge of evidence. One of the tinfoil packets
tested positive for .1 gram of heroin. No. 1-05-2493
4
Defendant was subsequently charged by information with possession of a controlled
substance with intent to deliver and possession of a controlled substance with intent to deliver
within 1,000 feet of a school. 720 ILCS 570/401(d), 407(b) (West 2004).
At trial, Officer Fron testified that he observed defendant from an elevated position, 20
feet above ground level, on March 1, 2005, alone, pacing and yelling blows to passing motorists
and pedestrians from the subject property. Defendant was as close as 60 and as far as 90 feet
away from Officer Frons surveillance point depending on defendants movement during the eight
to nine minutes the officer maintained sight of him. Officer Fron testified that he observed
defendant under premium weather conditions, he had an unobstructed view of defendant and he
used binoculars periodically during his surveillance. He also testified that the nearest person to
defendant other than the driver of the blue vehicle during the surveillance was at least 80 to 90
feet away from defendant. On cross-examination, Officer Fron testified that the surveillance
location that he was using that day was frequently used by police to monitor the area around the
subject property because the area was known to have high narcotics activity. Defense counsel
showed Officer Fron a defense exhibit consisting of a blank piece of paper with a drawn
intersection depicting Gladys Street and Kostner Avenue not drawn to scale. Officer Fron was
asked to mark the exhibit with the letter D to indicate where the officer first observed defendant
and he did so. Defense counsel then asked if the officer would place an S on the exhibit to
mark the officers surveillance location at which point the prosecution invoked the surveillance
location privilege. The following took place at trial:
Q.
Officer, with respect to this D, would you be able to No. 1-05-2493
5
indicate with an S approximately where your surveillance location
was?
A.
It is actually private property. So I dont know if I
am obliged to give up that location.
Q.
I am not asking you to give up the location. I am
asking you to indicate with an S approximately where your
surveillance location was on this diagram.
MR PARK (prosecutor): Objection.
THE COURT: What is the objection?
MR. PARK:
Judge, as the officer indicated, marking on
that even though not to scale rough drawing, he would still give up
that location. It is private property. Other peoples safety and
officers may be at risk. The officer can testify as to the distance,
the angle, whether there was [an] obstruction or not, whether he
was elevated, whether he used binoculars, to what direction he was
looking at. All that should suffice for the Defenses ability to cross-
examine him on officers ability to observe. But marking on that
rough diagram not to scale may jeopardize safety of others.
THE COURT: It sounds like the State is invoking the
secrecy of the surveillance location. What is your position on that?
DEFENSE COUNSEL:
Judge, I dont think this is No. 1-05-2493
6
going to reveal the location. I am not saying what building were
you in, where in the building were you.
THE COURT: You can ask questions about the direction he
was facing. He has given you a distance. But marking on the plat
you have there would significantly identify which building, which
would cause difficulty for the people who are apparently giving the
police permission. Objection sustained. *** He can testify if his
view was going south, east, west, if he was in front or behind, but I
will not allow him to mark on the paper."
After the invocation of the surveillance privilege, defense counsel cross-examined Officer
Fron as to what direction the defendant was facing from the officers surveillance point and
whether any trees obstructed the officers view of defendant. The officer answered that he had a
southwest view of the defendant and that his view was unobstructed. Officer Fron was also asked
to describe his familiarity with the area and describe buildings and landmarks in the area, which he
did.
Defendant testified on his own behalf at trial and claimed that he was in the area because
he worked in a garage located near the subject property with his partner, Phillip Baker.
Defendant testified that he was walking to his partners home, located on West Gladys Street, to
wake his partner so that they could open the garage, when two police officers stopped him in a
squad car on Van Buren Street. He testified that one of the officers exited the car on Van Buren
Street and walked through a nearby alley to Gladys Street, while the other officer drove defendant No. 1-05-2493
7
to the subject property. He testified that when he and the officer reached 4413 West Gladys
Street, he was placed under arrest and that the $74 found on his person was from working in the
garage.
On direct examination, defendant testified that he was in the vacant lot at the subject
property, but on cross-examination stated that he was never in the vacant lot on that day. At one