{ "id": 5261249, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RONALD PARSONS, Defendant-Appellant", "name_abbreviation": "People v. Parsons", "decision_date": "1991-12-06", "docket_number": "No. 1\u201490\u20141038", "first_page": "823", "last_page": "832", "citations": [ { "type": "official", "cite": "222 Ill. App. 3d 823" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "567 N.E.2d 450", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "208 Ill. App. 3d 586", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2548262 ], "weight": 2, "pin_cites": [ { "page": "597" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/208/0586-01" ] }, { "cite": "548 N.E.2d 433", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "191 Ill. App. 3d 940", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2512252 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/191/0940-01" ] }, { "cite": "478 N.E.2d 267", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "106 Ill. 2d 237", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3138930 ], "pin_cites": [ { "page": "261-62" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/106/0237-01" ] }, { "cite": "572 N.E.2d 895", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "143 Ill. 2d 82", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5591083 ], "weight": 2, "pin_cites": [ { "page": "134-35" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/143/0082-01" ] }, { "cite": "474 N.E.2d 466", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "131 Ill. App. 3d 128", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3436205 ], "weight": 2, "pin_cites": [ { "page": "139" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/131/0128-01" ] }, { "cite": "464 N.E.2d 1045", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "102 Ill. 2d 181", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3156888 ], "opinion_index": 0, "case_paths": [ "/ill-2d/102/0181-01" ] } ], "analysis": { "cardinality": 947, "char_count": 22939, "ocr_confidence": 0.767, "pagerank": { "raw": 1.669330647658913e-07, "percentile": 0.6956731840350537 }, "sha256": "9944f7d6e05d54eff763d0b10a2c3aa101c28a7926d0d7b43d449f75002efbc8", "simhash": "1:c36ae0ae70a98c59", "word_count": 3820 }, "last_updated": "2023-07-14T18:31:20.627609+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RONALD PARSONS, Defendant-Appellant." ], "opinions": [ { "text": "PRESIDING JUSTICE RAKOWSKI\ndelivered the opinion of the court:\nDefendant-appellant Ronald Parsons was charged by information with possession of more than 15 grams of a controlled substance, namely cocaine, with intent to deliver. A jury found defendant guilty of the charge, and defendant was sentenced to a term of imprisonment of 12 years, three years\u2019 mandatory supervised release and a fine of $40,000. Defendant appeals this judgment requesting that his conviction be reversed outright, remanded for a new trial or remanded for an evidentiary hearing.\nChicago police officers Frank Goff, Victor Guerrieri and Gerry Hutch testified at trial. They related that on August 4, 1987, they were at the home of Ronald Nemerow, along with Detective Abreu. The reason for their presence was to execute a search warrant for marijuana. During execution of the warrant, Nemerow asked how he could become an informant. Nemerow was told that he would have to give the officers two arrests to prove himself reliable, and the amount he would be paid would depend on the amount of drugs eventually seized. Nemerow asked the officers, \u201cHow about if I could get you four ounces?\u201d Officer Goff told Nemerow that this would be a good start.\nNemerow proceeded to make a phone call. Goff testified that Nemerow said \u201cHi, its me. Yeah. You got that information we talked about. Yeah. Where? What time? Okay.\u201d Nemerow then hung up the phone and told the officers to go to the Edens Plaza shopping center, and that there defendant would have four ounces of cocaine. Both Nemerow and his van were searched. In the van, the officers found a number of electric ceiling Casablanca fans and track lighting fixtures. The officers and Nemerow then proceeded to the shopping plaza.\nOnce there, Nemerow parked his van near the entrance to a store. One of the police officers stayed in the van while Officers Goff and Abreu stationed themselves in the entranceway to the store. Defendant drove his car, a white Volvo station wagon, into the parking lot, circled the area and parked across from the van. Defendant\u2019s car was about 100 feet from the van and faced in the opposite direction. Goff and Abreu, who were in undercover garb, were about 100 feet from defendant\u2019s vehicle.\nNemerow then exited his van and walked toward defendant\u2019s car. At this time, Goff and Abreu began to approach the vehicle as well. Goff testified that when he got to a point of about 15 feet from the vehicle, he saw defendant peer over his shoulder and peel the horn section of his car off. Defendant then removed a clear plastic bag containing white powder from the steering column. According to Goff, when defendant saw the officers, he tried to put the bag back into the steering column. The officers were on the driver\u2019s side of defendant\u2019s vehicle.\nAll of the officers testified that Nemerow never entered defendant\u2019s car. The distance from the car Nemerow got, however, varied from the officers\u2019 accounts, from being alongside the car to 15 feet away. The officers testified that as defendant saw them, he tried to drive away, but that his car was blocked by another officer in a police vehicle. Goff testified that Abreu entered defendant\u2019s car and recovered a bag of cocaine from the horn section. Goff testified at trial that he took a second bag from the horn section, although at a hearing on a motion to suppress Goff had testified that he wasn\u2019t sure whether it was Abreu or Goff himself who recovered the second bag. Officer Guerrieri testified that Goff removed both bags, while Officer Hutch testified that he saw Goff remove one bag. It was stipulated that 218.53 grams of cocaine were recovered from defendant\u2019s car.\nDefendant testified in his own behalf. He stated he did not even know what four ounces of cocaine looked like. He was 49 years old at the time of trial and had no prior convictions. He was in the real estate business and had a net worth of over $2 million, primarily through real estate investments in condominiums and shopping centers.\nDefendant knew Nemerow through a lease agreement regarding a condominium unit located in Vernon Hills, Illinois. The named lessee was Nemerow\u2019s girl friend, although Nemerow paid the rent. Defendant collected his own rents and saw Nemerow once a month for this purpose. Also, Nemerow sold various goods after buying out store inventories. Defendant had purchased carpeting and sweatshirts from Nemerow.\nIn July of 1987, defendant was remodeling his basement and arranged to purchase track lighting and four Casablanca ceiling fans from Nemerow. On August 4, 1987, Nemerow called defendant. Defendant asked if Nemerow had the lights and fans, and Nemerow, according to defendant, said \u201cYeah.\u201d They decided to meet at the Edens Plaza and not at the condominium because Nemerow said he wanted to remain near his address.\nDefendant further testified that he drove his car in the parking lot and parked it next to Nemerow's van. Nemerow then debarked from the van and entered defendant\u2019s car. Within seconds, two men approached the car. Defendant said that Nemerow put a plastic bag on the floor, and then said \u201cGet the hell out of here.\u201d Defendant drove a few car lengths but was cut off by a car. Defendant then got out of his car, and the police pulled Nemerow from the passenger seat. Defendant said that both he and Nemerow were then searched. According to defendant, Officer Abreu went in the car, held up the bag Nemerow had dropped and said \u201cWe got the cane.\u201d Goff never entered the car. Defendant denied ever removing the horn assembly and placing any cocaine in his car.\nDuring the hearing on post-trial motions, defendant was allowed to make a statement on his own behalf. During this statement, which included arguments in mitigation and numerous other matters, defendant made the following comments:\n\u201cSam [defense counsel] is overworked. I think Sam when he gets out on the floor here, you can\u2019t get any better. But if you take a juggler and give him four balls and then five balls, and then eight balls and then ten balls, sooner or later there is going to be mistakes made *** Sam\u2019s got a system that he\u2019s got like tunnel vision. He only works at one case at a time. For two and a half years I\u2019m on the outside and Sam doesn\u2019t talk to you and its frustrating.\n* * *\nOver the two and a half years, twice I set up a deposition meeting with Ron Nemerow to come down to Sam\u2019s office. One time it took about two months to set up this meeting because Sam is too busy. *** And its hard to set up appointments with Sam, you know, you\u2019ve been here; how many times have I shown up for court and Sam is in Springfield. Sam is some place else.\n* * *\nBut twice I set up depositions so we could get Nemerow down there [at defense counsel\u2019s office] *** I talked him into coming down to Sam\u2019s office. The first time I sat in Sam\u2019s office with Ron Nemerow for three and a half hours; Sam never showed up. The second time I\u2019m walking in through the vestibule and Sam says T can't do it right now; call me tomorrow.\u2019 Well there goes the deposition right down the toilet.\nOn Monday morning when our trial started, Sam looks over at me and he says \u2018Who is Helen Velante[,]\u2019 one of the witnesses *** he doesn\u2019t know who my witnesses are ***. And it wasn\u2019t Helen Velante, it was her son *** we don\u2019t have a witness[.]\n* * *\nSam didn\u2019t even know until after the thing was done that I had a land contract selling my condominium to Ron Nemerow.\n* * *\nSam didn\u2019t even knoyz my business. He introduced me as a real estate agent. I never have been a real estate agent.\u201d\nWhen defendant observed during the statement that his counsel was not present when the jury returned with its verdict, defendant observed, however: \u201cThere is nothing wrong with Sam. He\u2019s a good, good attorney ***.\u201d During defendant\u2019s statement, he referred to a \u201cthree-page confession or summary\u201d that Nemerow had given him. This document described, according to defendant \u201chow the day went,\u201d and defendant further related that Nemerow had apologized to him. Also at the hearing, defendant\u2019s wife stated: \u201cRon Nemerow has called me a couple of times, and the last point was the date that the jury came in with a guilty verdict. He called from Joliet stating that he was very sorry for the drugs that he dropped in Ron\u2019s car ***. He\u2019s called me twice on that.\u201d The three-page document defendant referred to, the record reveals, was in defense counsel\u2019s possession prior to trial. While it was shown to the State, it was never introduced into evidence and is not part of the record on appeal.\nThe first issue we address is whether the trial court erred in failing to hold a hearing or conduct further inquiry based on defendant\u2019s statements at the hearing on post-trial motions.\nDefendant contends that based on the facts of this case, \u201cthe trial judge was under a duty to make inquiry of defense counsel concerning the post-trial allegations\u201d raised by defendant and his wife. According to defendant, \u201ca real issue of neglect by defense counsel was raised.\u201d A number of factual contentions of defendant are not borne out by the record. It is clear that defendant claimed the defense of entrapment, not in his answer to discovery filed on the day of trial, but had raised the defense in his previous answer to discovery. Also, defense counsel never actually said during opening statement, as defendant contends, that the jury would hear Ron Nemerow\u2019s testimony, although defense counsel did comment upon Nemerow, indicating, for example, that Nemerow was arrested for drug offenses after the incident forming the basis of the instant charge.\nWith regard to the three-page statement of Nemerow \u2014 this document was never introduced into evidence and is not part of the record on appeal. While defendant has not argued the document\u2019s admissibility or that failure to move to introduce the document was neglect, it would appear to tie in heavily to the issue of defense counsel\u2019s alleged neglect in failing to interview or call Nemerow as a witness. The record does reveal that defense counsel showed this document to the State, and in conference with the trial judge, assured the court that if the State did not call Nemerow, defendant would call Nemerow.\nWhile defendant did not formally present a pro se petition alleging ineffective assistance, but rather made his statements during the sentencing phase of the post-trial motion hearing, the State does not contend that this is a reason why we should not apply the law pertaining to such a motion, nor do we perceive that it should be. Other matters upon which defendant appears to base his neglect case are the naming in answer to discovery of the -wrong witness, Helen Velante, when the witness who should have been named previous to trial was Helen Velante\u2019s son. Defendant\u2019s brief leaves us bereft of any reason why the failure to name or call this witness prejudiced defendant in any way. The witness appears from the record to simply have been at the informant\u2019s house when it was searched by the police. Also, defendant contends that his trial counsel should have revealed the existence of the lease between defendant and Nemerow\u2019s girl friend earlier than defense counsel did. It was turned over to the State during the course of the trial, and the trial judge ruled it inadmissible.\nIn support of his position that defense counsel neglected this case, defendant cites two cases. In People v. Krankel (1984), 102 Ill. 2d 181, 464 N.E.2d 1045, the defendant made a formal pro se motion alleging ineffective assistance of counsel and stated that he had informed .his counsel prior to trial of the existence of an alibi witness and an affirmative defense, but that trial counsel had failed to contact the -witness or raise the affirmative defense. The Illinois Supreme Court held that defendant should have had other counsel than his trial counsel to represent defendant on the ineffective assistance claim, and remanded the matter for a new hearing. In People v. Jackson (1985), 131 Ill. App. 3d 128, 474 N.E.2d 466, the defendant wrote to the trial judge, informing the judge that defendant\u2019s attorney was ineffective in representing defendant. At the hearings on post-trial motions, defendant verbalized his complaint, which went to his counsel\u2019s failure to call a witness to testify, who had in fact been interviewed by trial counsel. Trial counsel then stated why the witness had not been called (matters relating to the inability of the witness to place defendant at the witness\u2019 place of business at the time of the crime, and the cumulative nature of other testimony of the witness). The trial court denied defendant\u2019s motion, and the appellate court affirmed, stating:\n\u201cIn our opinion, the problems created by a defendant who, during post-trial proceedings, claims that his attorney has ineffectively represented him during trial, are best met by the objective tests ***. t\u00f1al court should examine the factual matters underlying the defendant\u2019s claim. There are several matters to be determined. If the claim goes to matters of trial tactics or strategy, the defendant\u2019s claim should be found spurious and his request for new counsel denied. *** If, however, the factual matters show possible neglect of the defendant\u2019s case, the court should appoint new counsel who can undertake an independent evaluation of the defendant\u2019s claim and present the matter to the court from a detached, yet adversarial, position. This was the case in Krankel, where defendant alleged that his attorney failed to interview an alibi witness.\nIt seems elementary that during the evaluation of defendant\u2019s claims, some interchange between the court and the defendant\u2019s attorney must take place. Such an interchange is necessary to avoid potential abuses by those who would falsely claim situations of the Krankel type. *** [C]ounsel may simply answer questions and explain the facts and circumstances surrounding matters which are alleged by his client to demonstrate that he was not adequately represented at trial.\u201d 131 Ill. App. 3d at 139.\nMost recently, the Illinois Supreme Court has spoken on this issue in the case of People v. Nitz (1991), 143 Ill. 2d 82, 572 N.E.2d 895. There, defendant made a pro se motion for a new trial, alleging that his trial counsel was incompetent for failing to call witnesses defendant claimed would have provided evidence of his defense. In Nitz, the trial court listened to defendant\u2019s arguments as well as defense counsel\u2019s explanations for not calling the witnesses to testify. Then, the court ordered an evidentiary hearing regarding the failure to call some of the witnesses, and the trial court allowed defendant\u2019s counsel to examine the witnesses whose testimony could prove trial counsel ineffective. The court held that allowing trial counsel to do so was error, yet held the error to be harmless. Prior to announcing its holding, however, the court observed:\n\u201cIn interpreting Krankel, our appellate court has concluded that there is no per se rule that new counsel must be appointed every time a defendant presents a pro se motion for a new trial alleging ineffective assistance of counsel. [Citations.] Rather, to determine whether new counsel should be appointed, \u2018the trial court should examine the factual matters underlying the defendant\u2019s claim[.] *** [I]f the claim lacks merit or pertains to matters of trial strategy, then no new counsel need be appointedf, but] if the allegations show possible neglect of the case *** new counsel [should] be appointed.\u2019 [Citation.]\nWe agree with the appellate court\u2019s interpretation of Krankel. If the trial court conducts a preliminary investigation of the defendant\u2019s allegations and determines them to be spurious or pertaining only to trial tactics, no new counsel need be appointed to represent the defendant. If, however, the defendant\u2019s allegations of incompetence indicate that trial counsel neglected the defendant\u2019s case, the court should appoint new counsel to argue defendant\u2019s claims of ineffective assistance of counsel.\u201d 143 Ill. 2d at 134-35.\nIt seems apparent from Nitz and is spelled out in Jackson (which the Nitz court cited approvingly) that there should be some interchange between the trial court and the defendant\u2019s trial coutisel to explain complained-of possible neglect. Here, it seems clear that there was possible neglect. When one considers defendant\u2019s statement that his counsel failed to interview the informant, defendant\u2019s wife\u2019s comment that the informant told her he dropped the cocaine in defendant\u2019s car, and the existence of a written statement from the informant, whose precise contents are unknown to this court, but which may have been helpful to defendant, a serious question emerges as to whether Nemerow\u2019s testimony would have helped defendant. The record does not make clear that the decision not to call Nemerow as a witness was trial strategy\u2014 the facts imply the possibility that Nemerow was never even interviewed by defendant\u2019s counsel. The failure to call the witness (whose mother was erroneously disclosed) and the failure to reveal the existence of a lease seem to be quite harmless, given the apparent irrelevance of the witness\u2019 testimony and the cumulative nature of the lease.\nIt is not clear that the same could be said of favorable testimony on the part of Nemerow, whom defendant\u2019s counsel repeatedly stated in the record would be a witness at trial. The trial court did not follow up on defendant\u2019s complaints and ask for an explanation from trial counsel, as the cases indicate should occur. While the record reveals that defense counsel secured Nemerow\u2019s presence at trial, it does not establish that Nemerow was actually interviewed. Absent any explanation from trial counsel as to why Nemerow was not called and the lack of a showing that Nemerow was actually interviewed, we hold that the case is to be remanded for clarification of this issue.\nIn holding as we do, we emphasize that we are not remanding for a full evidentiary hearing and appointment of counsel on the issue of trial counsel\u2019s incompetence. Rather, we remand only for the purpose of the interchange mandated by Jackson and Nitz. If, for example, defendant\u2019s trial counsel indicates to the court that Nemerow was in fact interviewed and that counsel determined Nemerow\u2019s testimony would not be helpful to defendant, then the matter would clearly be one of trial strategy, and defendant\u2019s informal pro se motion would properly be denied. We reject the implication of the State at oral argument that the trial court was in a position to reject defendant\u2019s factual contentions made at the hearing based upon conduct of counsel at the trial when such conduct does not resolve or contradict defendant\u2019s factual contentions.\nThe next issue we address is whether defendant was proven guilty beyond a reasonable doubt. Essentially, defendant points to certain inconsistencies in the officers\u2019 testimony relating to how far the informant was from defendant\u2019s car at the time of the incident, which officers actually grabbed the bags of cocaine, and whether one officer was in the informant\u2019s van or not. Defendant also would have us infer that both the informant\u2019s and Officer Abreu\u2019s testimony would have been unfavorable to the State.\nFirst of all, the inconsistencies as to positioning of the officers during the incident and who took the bags from the car are not major enough to create serious doubts about the officers\u2019 testimony. The officers were clear in testifying that the informant did not reach the car and that defendant himself peeled away the horn compartment and grabbed the bag. While defendant testified differently, this was an issue of fact for the trier of fact. It is for the jury to decide what witnesses to believe and what weight to give their testimony. People v. Collins (1985), 106 Ill. 2d 237, 261-62, 478 N.E.2d 267.\nDefendant relies heavily on our recent case of People v. Johnson (1989), 191 Ill. App. 3d 940, 548 N.E.2d 433, where the court did draw an adverse inference to the State due to the State\u2019s unexplained failure to call the informant. In Johnson, however, the facts revealed an unjustifiable refusal on the part of the State to tender the informant to the defense for interview, and the police testimony was inherently suspect. Here, it is apparent that Nemerow was available to defense counsel for both interview and testimony at trial. Moreover, as the State points out, cases have held that the uncalled witness must have testimony \u201cunique to the case in order to give rise to this negative inference.\u201d (People v. Ayala (1990), 208 Ill. App. 3d 586, 597, 567 N.E.2d 450.) Here, the officers and the defendant both presented their testimony as to whether the informant reached defendant\u2019s car and planted the cocaine.\nThe next issue we address, related to the last, is whether the trial court erred in refusing defendant\u2019s proffered jury instruction regarding the State\u2019s failure to call the informant and a police officer at trial.\nGiven the availability of the witnesses to the defense as well as the State (defendant has not argued the unavailability of either witness to him) and the fact that the testimony was not unique, defendant was not entitled to the instruction. The record reveals that Officer Abreu was on medical leave at the time of trial, so there is an explanation for his absence, and defense counsel in fact had secured Nemerow\u2019s presence, so that Nemerow was in the lockup during the trial. We therefore hold that the trial court did not abuse its discretion in failing to provide the non-Illinois Pattern Jury Instruction in this case, as this case is not a case where the negative inference should arise. See Ayala, 208 Ill. App. 3d 586, 567 N.E.2d 450.\nFinally, defendant argues that the trial court erred in refusing to allow defendant to admit the copy of the lease between defendant and the tenant of the apartment. The lease defendant sought to have introduced was turned over to the State only during the trial. Discovery had long since been completed and there was no error in the court\u2019s disallowing its introduction. Moreover, defendant himself testified to the lease that Nemerow paid on, so the lease itself was only cumulative as evidence. Any error occurring thus was harmless.\nAccordingly, the judgment of the circuit court is affirmed in part, reversed in part and remanded with directions.\nAffirmed in part; reversed in part and remanded with directions.\nMcNAMARA and LaPORTA, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE RAKOWSKI" } ], "attorneys": [ "Altheimer & Gray, of Chicago (Mark T. Hechinger and Phillip J. Zisook, of counsel), for appellant.", "Jack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb, Veronica X. Calderon, and Ketki M. Shroff, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RONALD PARSONS, Defendant-Appellant.\nFirst District (6th Division)\nNo. 1\u201490\u20141038\nOpinion filed December 6, 1991.\nAltheimer & Gray, of Chicago (Mark T. Hechinger and Phillip J. Zisook, of counsel), for appellant.\nJack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb, Veronica X. Calderon, and Ketki M. Shroff, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0823-01", "first_page_order": 843, "last_page_order": 852 }