Petition for Writ of Certiorari — Dordies v. Illinois

No.

IN THE SUPREME COURT OF THE UNITED STATES

October Term 1992

Robert Dordies,

Petitioner,

V NS) >

eee ee ee

People of the )

State of Illinois, |

Respondent. )

PETITION FOR WRIT OF

CERTIORARI

TO THE SUPREME COURT OF ILLINOIS

PETITION FOR WRIT OF CERTIORARI

AM J. STEVENS

ney for Petitioner

outh La Salle Street

ite i407

hicaco, IL 60603

ioieé 64 97"429

4a

S)

th

L

QUESTIONS PRESENTED FOR REVIEW

1. Does the inference that petitioner

intended to distribute cocaine drawn by

the Illinois Court that possession:-of

2.01 grams of cocaine, $868 in cash and

a beeper where the petitioner was

employed as an auto mechanic and was

arrested near a shopping center violate

due process of law as guaranteed by 14th

Amendment to the U.S.Constitution and

conflict with the due process

interpretations adopted by the federal

courts in Turner v. United States 396

U.S. 398, 423 (1970); United States v.

Franklin 728 F2d 994 (8th Cir. 1984);

United States v. Olvera 523 F2d 1252

(Sth Cir. 1975)?

2. Is a 12 year sentence for possession

of 2.01 grams of cocaine with intent to

distribute based on a reckless disregard

of the fact that petitioner successfully

2

completed parole and was never

adjudicated a parole violator a

violation of due process of law?

3. Was petitioner's conviction procured

with the knowing use of false testimony

in violation of due process of law where

substantial evidence contradicted the

officer who testified against petitioner

and 5 witnesses including the officer

who assisted in petitioner's arrest

testified that they did not see

petitioner throw any object (the

cocaine) to the ground?

PARTIES

1. Robert Dordies was defendant in the

Circuit Court of Cook County, Illinois,

Criminal Division, appellant in the

Illinois Appellate Court, First

District, petitioner for Leave to Appeal

in the Illinois Supreme Court and

petitioner for Writ of Certiorari in

this Court.

2. The People of the State of Illinois

was plaintiff in the Circuit Court of

Cook County, Illinois, Criminal

Division, appellee in the Illinois

Appellate Court, First District,

respondent on Petition for Leave to

Appeal in the Illinois Supreme Court and

respondent in this Court.

TABLE OF CONTENTS

QUESTIONS PRESENTED...

PARTIES . .. .

TABLE OF CONTENTS ......

TABLE OF AUTHORITIES ....

REPORTS OF OPINIONS .....

JURISDICTION

TEXT OF 14th AMENDMENT...

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT

CONCLUSION . . .« © « « « «

JUDGMENTS AND OPINIONS BELOW

18

i9

TABLE OF AUTHORITIES

Alcort v. Texas 355 U.S. 28 (1957) . 17

Mooney v. Holohan 294 U.S. 103 (1935!

17

Napue v. Illinois 360 U.S. 264 (1959) .

17

Townsed v. Burke 334 U.S. 736, 739-742

28 | ae ee ee ee oe © © 16

Turner v. United States 396 U.S. 398,

OOS (1970) 2 6 sn ct tt a sess Le

United States v. Franklin 728 F 2q@ 994

(Sth Cir. 1964) -. 2. , ‘ * ¢ ee’ = oe

United States vy. Olvera 523 F 24 1252

(Sth Cir. 1975) ..... ‘eee « ££

DECISIONS BELOW

The order of the Illinois Appellate

Court affirming petitioner's conviction

an.. the order of the Illinois Supreme

Court denying leave to appeal are

unpublished and the tables reporting

those dispositions have yet to be

E iished. The orders are reproduced in

tne appendix to this petition.

JURISDICTION

On August 28, 1992 the Illinois

Appellate Court entered an order

affirming petitioner's conviction and

sentence. On September 16, 1992

petitioner filed a timely petition for

leave to appeal in the Illinois Supreme

Court. On December 2, 1992 the Illinois

Supreme Court denied leave to appeal.

Petitioner seeks to invoke this court's

Jurisdiction under 28 USC Sec. 1293 by

filing this petition by mail on February

24, 1993 and within 90 days of the

judgment of the Illinois Supreme Court

as required by rule 13.1 of the Court.

CONSTITUTIONAL PROVISION INVOLVED

AMENDMENT XIV

eee; nor shall any State deprive any

person of life, liberty, or property,

without due process of law; ....

STATEMENT OF THE CASE

Petitioner was among 16 to 18 men

in a breezeway connecting a shopping

center and high rise apartment buildings

in the vicinity of Dearborn and Federal

Streets in Chicago. Chicago Police

Officers David Baez and Rick Diaz

responded to a call reporting men

loitering at 3920 State Street. (R. 9-

ll) Baez used the public address system

on his squad car to order the men to

disperse. (R. 11) All of the men except

2, Robert Dordies, the petitioner, and

Bryant Reed left the area. (R. 11-13)

Officer Baez arrested Reed for

disorderly conduct. (R.14) While Officer

Baez was hand cuffing Reed, he claims

that he saw petitioner drop a bag behind

him (R. 14). Officer Rick Diaz was

watching the petitioner and did not see

10

the petitioner or anyone else drop the

packet Officer Baez allegedly recovered.

(R. 162) Four occurrence witnesses James

Winters, Debra Branner, Donna Siller and

Dwane Evans did not see the petitioner

drop anything ana did not see Officer

Baez recover anything. (R. 52, 68-9, 80,

88, 106, 135). Officer Baez stated that

he went to arrest Reed and the

petitioner for disorderly conduct as

they were the only 2 remaining after the

order to disperse and that he saw no

narcotics transaction and no narcotics

paraphernalia. (R. 27)

Upon arresting the petitioner

Officer Baez found that the petitioner

had $868 and a beeper. (R.17-18)

ll

Officer Baez inventoried a clear

plastic bag which contained 8 smaller

packets with yellowish powder in them

(R. 15, 18, 19) The total weight of the

packets was 2.01 grams and the powder

was cocaine (R. 36)

Petitioner was 32 years of age at

the time of the alleged offense. (R.

208) He worked as an automobile mechanic

and supported his 3 children. (R 206)

Petitioner had prior convictions for

murder and armed robbery and had served

time concurrently for those offenses

from 1976 to 1982. He remained at

liberty without incident for 9 years and

6 months. He successfully completed

parole without being adjudicated a

parole violator. (R. 206)

In a bench trial the Circuit Court

of Cook County found him guilty of

12

possession of cocaine with intent to

deliver cocaine and sentenced petitioner

to 12 years. On appeal he attacked his

conviction and sentence on due process

grounds. The Appellate Court affirmed.

The Illinois Supreme Court denied leave

~——_-— *

to appeal on December 2, 1992.

—

(J

REASONS FOR GRANTING THE WRIT

I.

Due Process of Law is offended when

the Illinois Court infers an intent to

distribute cocaine from the possession

of 2.01 grams of cocaine, $868 in cash

and a beeper. Sinister inferences

should not be drawn from the cash and

the beeper where the petitioner was

employed as an auto mechanic and his

arrest occurred near a shopping center.

The Federal courts have refused to infer

an intent to distribute narcotics from

evidence of possession of small

quantities of drugs. In Turner v.

United States 396 U.S. 398, 423 (1970)

14.68 grams of cocaine was insufficient

to support an inference of possession

with intent to deliver. In United

States v. Franklin 728 F 2d 994 (8th

14

Cir. 1984) 35 grams of 42% pure cocaine

was insufficient to support an inference

of possession with intent to deliver.

In United States v. Olvera 523 F 2d 1252

(Sth Cir. 1975) 2 grams of cocaine was

insufficient to support an inference of

possession with intent to deliver.

The inference that petitioner

intended to deliver cocaine drawn here

by the Illinois courts, offends the due

process clause of the 14th Amendment and

is contrary to the interpretation of

federal law adopted by the federal

courts. .

15

ah«

The Circuit Court and the Appellate

Court heavily relied on an assertion

that the petitioner was returned to

prison as a parole violator in 1984 as

an aggravating factor in imposing and

affirming the 12 year sentence in this

case. The record is plain that

petitioner was never adjudicated a

parole violator and was never returned

to prison as a parole violator. (R. 206)

After his release from prison he

remained at liberty for 9 years 6 months

without incident. The Illinois courts'

reckless disregard for the actual state

of the record in order to rationalize

its sentence violates fundamental due

process. Townsed v. Burke 334 U.S. 736,

739-742 (1948).

16

Iii.

The case that petitioner possessed

cocaine rested entirely on the un-

corroborated testimony of Officer David

Baez to the effect that petitioner threw

a bag on the ground and that Baez

recovered that bag. The prosecution

“new that Baez was lying when his fellow

officer Rick Diaz testified that he was

wa*ching the petitioner that he did not

see petitioner throw anything to the

ground. Once Officer Baez's testimony

waS supported by four additional

witnesses, the prosecution was under a

due process duty to halt the prosecution

sed on planted dope and the lies of an

crupulous officer. Napue v. Iilinois

360 U.S. 264 (1959); Mooney v. Holohan

294 U.S. 103 (1935); Alcort v. Texas 355

U.S. 28 (1957).

17

BEST AVAILABLE COPY ®

CONCLUSION

For the foregoing reasons

petitioner asks the court to grant

certiorari to the Supreme Court of

Illinois to review the petitioner's

conviction and sentence.

Respectfully submitted,

William J. Stevens

WILLIAM J. STEVENS

135 S. LaSalle Street

Suite 1407

Chicago, IL 60603

(312) 845-2900

18

August 28, 1992

No. 1-91-2060

IN THE

APPELLATE COURT OF ILLINOIS

FIRST JUDICIAL DISTRICT

People of the State of Illinois

Plaintiff-Appellee

vs.

Robert Dordies

Defendant~-Appellee

ORDER

Following a bench trial in the

circuit court of Cook County, defendant

was convicted of possession of a

controlled substance with intent to

deliver. (Ill. Rev. Stat. 1989, ch 56

1/2, par. 1401(a)(2)) and sentenced to

12 years imprisonment. Defendant raises

these issues on appeal: (1) the State

failed to prove him guilty beyond a

reasonable doubt; (2) it was reversible

L$

error to allow the State to introduce

evidence of a defense witness' gang

affiliation; and (3) his sentence is

excessive.

Police officer David Baez testified

that about 5:15 p.m. on April 28, 1989,

he and his partner received a radio call

about men loitering at 3920 South State

Street in Chicago, Illinois. He

proceeded to the location and observed a

large group of men standing in a

breezeway that connects a shopping mall

and a housing project. He ordered the

men to disperse, and everyone left

except for defendant and Bryant Reed.

Defendant appeared to be signaling

everyone to return to the breezeway, so

Baez decided to arrest defendant and

Reed for disorderly conduct. Baez

blocked the breezeway with his police

vehicle, then exited the car. Reed

20

walked towards Baez and attempted to get

in his way, so Baez hand cuffed him.

Then Baez saw defendant drop a plastic

bag onto the ground. He arrested

defendant and recovered the plastic bag

which contained several smaller clear

bags of white-yellowish powder.

Defendant also had a mobile beeper and

$868 in currency in his possession.

The parties stipulated that if

Gloria Grindle, a police chemist, were

called to testify, she would state that

she analyzed the substance in the eight

clear plastic bags recovered frem

defendant and determined that it was

2.01 grams of cocaine.

Donna Siller, a long-time

acquaintance of defendant, testified

that she lived in a 13-floor apartment

overlooking the shopping center. About

5 p.m., she saw two policemen drive into

21

the breezeway, stop the vehicle, and

then chase "some guy" toward a building.

An officer walked back towards the

shopping center and was "tussling" with

defendant. Then the officer pulled out

a gun and arrested defendant. She did

not see defendant drop any package upon

the ground.

James Winters, who did not know

defendant, testified that on April 28,

1989, he was employed at the Main Street

Game Room in the shopping mall. About 5

P-m. two police officers had a suspect

confined in the squad vehicle ana they

were walking on the sidewalk in the

shopping mall. The police stopped by a

grocery store and requested several

individuals to leave the area. The

police got back into the vehicle, then

used the vehicle to prevent defendant

and Reed from leaving the breezeway.

22

When an officer grabbed defendant, they

"were scuffling." Winters did not see

defendant drop anything on the ground.

Dwayne Evans testified that he was

walking out of the .grocery store in the

shopping mall when he saw a policeman

chasing "a few other members" through

the breezeway. The officer struck

defendant with a stick, pulled out a

gun, and arrested him. He did not see

defendant drop anything on the ground.

Evans denied being a member of the Black

Gangster Disciples or having known

defendant previously.

Debra Branner testified that she

was going into the grocery store when

she saw a police vehicle blocking the

breezeway and a police officer running

towards the building. The officer

approached the defendant, there was a

"scuffle," the officer pulled out his

23

gun and hand cuffed defendant. She did

not see defendant drop anything on the

ground. She had seen defendant in the

neighborhood, but they were not friends.

Police officer Enrique Diaz

testified in rebuttal that he

accompanied Baez on April 28, 1989.

Baez ordered the men in the breezeway to

disperse, and everyone complied except

defendant and Reed. Baez stopped the

police vehicle in the breezeway, exited

and hand cuffed Reed. Baez called for

assistance because defendant was

Signaling the other men to return to the

area. Baez saw defendant walking away

and ordered him to en When defendant

failed to respond, Baez hand cuffed him,

then Baez walked to the location where

he had been standing and retrieved a

plastic bag. There was no one else in

the police vehicle besides the two

24

officers prior to entering the

breezeway. Baez “pushed [defendant] a

little bit to get him toward the wall"

to handcuff him, but Baez did not hit

him with a police baton. There was no

one else in the breezeway besides the

two police officers, defendant and Reed

at the time of the arrest.

Police officer Michael Rooks

testified in rebuttal that he and his

partner, Sam Pollack, provided

additional assistance that day. Reed

was placed in their squad vehicle and

taken to the police station.

The State then called police

officer Sandra LaPorta as a rebuttai

witness and defendant objected. The

State argued that the purpose of

LaPorta's testimony would be to impeach

Dwayne Evens' statement that he was not

a member of the Black Gangster Disciples

25

and to show bias of the defense witness.

The trial court overruled defendant's

objection and allowed the witness to

testify.

Police officer Sandra LaPorta

testified that in the early morning

hours of September 22, 1990, she had a

conversation with Dwayne Evans. Evans

admitted that he was a member of the

Biack Gangster Disciples.

The State then sought to call

police officer McCullan as a witness to

testify about his knowledge regarding

gangs. The trial court sustained

defendant's objection.

Initially, we consider whether the

State failed to prove defendant guilty.

Defendant claims that the evidence was

not sufficient to support his conviction

for possession of a controlled substance

with intent to deliver, and that his

26

conviction should be reduced to the

lesser offense of possession of a

controlled substance. When reviewing

the sufficiency of the evidence on

appeal, the relevant question is

whether, after reviewing the evidence

in the light most favorable to the

presecution, any rational trier of fact

coule have found the essential elements

of the crime beyond a reasonable doubt.

People v. Young (1989), 128 Ill. 2d l,

49, 538 N.E. 2d 461.

We have examined the record in the

present case and find that the evidence

establishes that defendant had 2.01

grams of cocaine on his person, which

supports a finding of possession. We

also find that the mobile beeper and

$868 in currency found in defendant's

possession establishes an intent to

deliver the controlled substance. In

27

People v. Crenshaw (1991), 202 Ill. App.

3rd 432, 549 N.E. 2d 1051, we held that

l1.3 grams of cocaine divided into 22

packets was insufficient to support an

inference of intent to deliver because

there was no evidence that defendant had

placed the substance in the packets, the

amount of currency in defendant's

possession was never determined, and the

police had not observed a transaction

that would have been indicative of a

drug delivery or sale. However in the

present case, it was determined that

defendant had $868 in cash in his

possession which could be indicative of

a drug transaction. The trial court

also inferred an intent to deliver

because defendant possessed a mobile

beeper which could have been used for

drug transactions. Therefore, a

rational trier of fact could have

28

concluded that defendant was guilty of

possession of a controlled substance

with intent to deliver.

We next consider whether the gang-

related evidence was properly admitted

for the limited purpose of impeaching a

defense witness. Defendant argues that

the States's rebuttal evidence regarding

the gang affiliation of a defense

witness was collateral to the

determination of his guilt or innocence

and therefore constitutes reversible

error.

Illinois courts have often held

that questions regarding gang

affiliations are proper when the State

has sought to introduce evidence of

defendant's gang activities in spite of

the risk of prejudice to defendant.

(People v. Gonzales (1984), 104 Ill. 2d

Boa, 220, S42 84.8. 24 417.) In the

29

present case, defendant did not object

when on cross examination Dwayne Evans

denied a gang affiliation. While the

trial court did allow Officer LaPorta to

impeach Evans testimony denying gang

affiliations, it would not allow a

police gang specialist to testify as a

witness. Therefore , we do not agree

with defendant's contention that

whatever probative value the evidence

had was outweighed by is prejudicial

effect. It is the function of the trial

court to weigh the probative value and

prejudicial affect of evidence in

determining whether it should be

admitted at trial. (People v. Gonzalez

(1991), 142 Ill. 2d 481, 489, 568 N.E.

2d 864.) We believe that the trial

judge acted properly in allowing Evans's

testimony and subsequent rebuttal

testimony by the police officer and then

30

refusing to allow the testimony of a

police gang specialist. We conclude

that the gang-related evidence was

admissable for the purpose of impeaching

a defense witness.

Finally, defendant argues that the

trial court abused its discretion by

sentencing him to an excessive term of

12 years' imprisonment. Defendant

contends that the trial court failed to

Give adequate consideration to his

rehabilitative potential.

The trial court is not required to

Give greater weight to the possibility

of ryehadbilitetion tHaen to tae

seriousness of the offense at the

sentencing hearing. (People v. Allen

(1990), 202 Ill. App. 3rd 487, 494. 559

N.E. 2a 1145, } It is not necessary for

the trial court to articulate or assign

a value to each fact upon which it

kB

relies in determining defendant's

sentence. (People v. Allen, 202 Ill.

App. 3rd at 494.) In the present case,

we find that the trial court did

consider the aggravating and mitigating

factors, the seriousness of the offense,

and the opportunity for the defendant's

rehabilitation. Defendant had been

convicted of murder and armed robbery in

1976 and sentenced to a term of 18 to 30

years' imprisonment. Moreover,

defendant had been paroled and was

returned to prison in 1984 for violation

of parole. Under these particular

Circumstances of the case, we do not

find that the trial court abused its

discretion in sentencing defendant. And

absent an abuse of discretion, the trial

court's decision will not be disturbed.

People v. Perruquet (1977), 68 Ill. 2a

149, 153, 368 N.E. 2d 882.

32

For the foregoing reasons, the

judgment of the circuit court is

affirmed. Pursuant to People v. Nicoile

(1978), 71 Ill 2d 166, 374 N.E. 194, we

Grant the State's request and assess

defendant $50 as costs for this appeal.

Judgment affirmed.

LORENZ, J. with MURRAY and GORDON, JJ. ,

concurring.

ce

IN THE SUPREME COURT OF ILLINOIS

No. 74286

Robert Dordies.

Petitioner,

vs.

People of the State of Illinois,

Respondent.

ORDER

Petitioner's Petition for Leave to

Appeal is DENIED.

Dated: December 2, 1992