1st Dist. 12-4-98 |
THIRD DIVISION
December 4, 1998
No. 1--95--1422
| THE PEOPLE OF THESTATE OF ILLINOIS, Plaintiff-Appellee, v. REGINALD WARD, Defendant-Appellant. | Appeal from the Circuit Court of Cook County. Honorable Dennis A. Dernbach, Judge Presiding. |
JUSTICE BURKE delivered the opinion of the court:
Following a jury trial, defendant Reginald Ward was found guilty ofpossession of a controlled substance with intentto deliver and sentenced to 16 years' imprisonment. On appeal, defendant contends that the trialcourt erred in (1)failing to suppress the introduction into evidence of his State of Illinois Identification Card (I.D.card); (2) failing togrant him a continuance to prepare for an evidentiary hearing on a motion to suppress the I.D.card; and (3) allowinga police officer to testify that he ran a check on defendant's I.D. card and a positive result cameback from the check,which all resulted in depriving defendant of a fair trial. For the reasons set forth below, weaffirm.
Prior to defendant's trial, defendant filed a motion inlimine to bar the State from introducing any evidence ofcontraband found within the house where the police subsequently discovered defendant lived,which the trial courtgranted. At this time, the State informed the trial court and defendant that the officers hadviewed photographs ofdefendant inside the house and that is how they had originally identified him. Defendant'scounsel inquired whetherany of the photographs were inventoried or any report made relating to the photographs that hadnot been disclosed. The State responded that everything had been disclosed. The trial court ruled, "Picture goes in.*** But the drugsand guns don't go in." The trial court then proceeded with jury selection.
The following day, the issue of suppressing evidence recovered from thehouse arose again when the partiesinformed the trial court that at 9:23 p.m. the night before, the State had discovered defendant'sI.D. card in aninventory. It had been inventoried in conjunction with another case, of another defendant, thatarose out of relatedincidents. Defendant also presented another motion in limine to bar the State fromintroducing testimony of aconversation between Yolanda McGee and the police officers investigating the ownership of aBuick they hadstopped. McGee had answered the door after the police discovered the Buick they had pulledover was registered tothe house in which she lived. The police asked McGee who was driving the vehicle and sheanswered that"Reginald Ward" was. The trial court ruled that this conversation was inadmissible because itwas more prejudicialthan probative. Defendant then sought to bar the introduction of the I.D. card because it wasillegally obtained or, inthe alternative, as a sanction for failing to produce the card in discovery. The trial court ruledthat the I.D. card wasnot subject to suppression as hearsay because the officers in the course of their investigationcame across the I.D.card which had a picture of defendant and his name on it. As to barring the admission of thedocument as a sanctionfor failing to disclose it, the trial court ruled:
"[A]s to the photograph, I will deny the motion in limine. I will allow thestate to use the photograph on thestandard that it was tendered to counsel--counsel was given that last night, informed of that lastnight as soonas the state found out about it. It's one of those things which goes to--which was filed in anothercase, *** itcame to attention last night, upon finding out about it they notified defense counsel. I think inbalancing thestatement and the pictures to entitle defendant a fair trial and to allow [sic] state topresent their evidence, thatbeing the conduct of the police officers, I think that balancing all the factors that is theappropriate ruling.*** [The] state can introduce the evidence of observing the photographs of the defendant andintroduce theI.D. that was recovered in the house."
After the trial court denied the motion inlimine, defendant asked for a continuance to "investigate the fact they gotthe photograph and also to make an oral motion to quash arrest and suppress evidence." Defendant requested acontinuance to locate a witness he felt necessary for an evidentiary hearing on the suppression ofthe I.D. card. Defendant's counsel stated that he was not aware whether defendant lived at the house where theI.D. card wasdiscovered by the police. The trial court then initially questioned whether defendant hadstanding to challenge theseizure of the I.D. card. The trial court ultimately ruled:
"I'm going to deny your motion. I find that the photograph is not evidenceof defendant's guilt. I'm allowingit in only for the purposes of showing the police officers' conduct. I'm allowing it in because Ihave grantedthe motion in limine barring the statement of Yolanda McGee. All this evidence we're talkingabout, thestatement of Yolanda McGee and the photographs do not go to the issue of whether thedefendant possesseddrugs, the allegations in the indictment, they only go to show the course of conduct of the policeofficers. I'mleaving that in for that limited purpose, not as evidence against the defendant.
For those reasons your request to ask that a motion toexclude, a motion to suppress, is denied. Yourobjection to the introduction of that evidence is denied."
At defendant's trial, the State's evidence consistedof the testimony of two Chicago police officers and the stipulatedtestimony of a chemist and an expert on narcotics value. Officer Mike Jedlowski testified that onJune 18, 1994, heand his partner were assigned to the Special Operations section of the Chicago policedepartment. SpecialOperations is a unit that patrols different areas of the city designated as high crime areas. OnJune 18, he was onpatrol with his partner, Officer Walter Muszynski, when he observed a Buick exit an alley nearSt. Louis andAugusta in Chicago without stopping. Officer Jedlowski was the passenger in an unmarkedsquad car. He and hispartner proceeded to activate their vehicle's emergency equipment to curb the Buick. The Buickstopped atapproximately 949 North Drake. After stopping their vehicle, Officer Jedlowski and his partnerexited their vehicleand the driver of the Buick exited his vehicle. At this time, Jedlowski heard the driver of theBuick ask, "Why areyou stopping me? I didn't do nothing." The driver of the Buick was approximately 10 feet fromJedlowski at thistime. The weather was bright and sunny, and Jedlowski testified he had a clear view of thedriver. Jedlowskiidentified the driver of the Buick as defendant. Jedlowski further stated that after defendantasked why he had beenpulled over, defendant turned around and ran. After defendant ran, Jedlowski pursued him southon Drake, and thenwest through some gangways. Jedlowski was unable to locate defendant and returned to wheredefendant hadabandoned the Buick. Jedlowski looked inside the driver's door and observed "on the floor of thevehicle on theright side *** a brown paper bag was open." Inside the bag, he could "see two large clear plasticbags with whiterock suspect cocaine and bunches of U.S.C. that were rubber banded or tied together." Jedlowskirecovered the bagand placed it in the trunk of his police vehicle.
Jedlowski further testified that at this time he and his partner called inthe Buick's license plate to receive registrationinformation. The information disclosed that the car was registered to an individual with anaddress of 946 NorthDrake. The officers proceeded to that address and knocked on the door. A female answered thedoor and identifiedherself as Yolanda McGee. McGee allowed the officers into the home, and after asking her, "Doyou know whosecar this is? The car registers here," McGee directed the officers to a basement bedroom. In thebasement,Jedlowski observed a collage of pictures on the wall. Within the pictures, Jedlowski recognizeddefendant. Inaddition to the photographs on the wall, Jedlowski recovered defendant's I.D. card with hisphotograph and name. Approximately 10 minutes had passed from the time defendant ran from Jedlowski to the timeJedlowski sawdefendant's picture in the house.
After recovering the I.D. card, the officers returned to the police station,where they inventoried the cocaine and bag. Officer Jedlowski then began the paperwork associated with the case, and ran a check ondefendant using the I.D.card. With respect to the check on defendant's I.D. card, the following colloquyoccurred:
Q. [MR. GEBHARDT, Assistant State's Attorney] As part of thepaperwork, in doing your paperwork didyou do anything to find the defendant, Reginald Ward?
A. [OFFICER JEDLOWSKI] We ran a check on thedefendant.
Q. And did you get a result of that check?
MR. SPECTOR [defendant's attorney]: Objection.
THE COURT: Read back that question.
(The record was read back by the court reporter as requested.)
THE COURT: Overruled.
BY MR. GEBHARDT:
Q. Your answer to that question was yes, is thatcorrect?
A. Yes.
Q. You got a result of the check that was made?
A. Yes."
Jedlowski further stated thatafter receiving the I.D. check information, he took the information downtown to get anarrest warrant.
On June 20, after securing an arrest warrant, Officer Jedlowski wentback to 946 North Drake to try and serve thewarrant. At that time, he spoke with Dorothy Esco and informed her that an arrest warrant wasout for defendant. Jedlowski and Muszynski went to 5430 West Monroe which was defendant's mother's home, andthe address on theI.D. card Jedlowski had recovered from the North Drake house on June 18. Jedlowski furtherstated that he adviseddefendant's mother of the arrest warrant. On June 29, defendant entered Area 4 policeheadquarters and surrenderedhimself. Jedlowski then identified several State exhibits, including the cocaine and I.D.card.
On cross-examination, Jedlowski testified that defendant turned himselfin as soon as possible the next time theofficers were on duty. Defendant's counsel attempted to impeach Jedlowski by showing thatJedlowski had testifiedbefore the grand jury that the events on June 18 occurred at 12 p.m., as opposed to 12:30 p.m., ashe had testified toon direct examination. In addition, Jedlowski had issued traffic citations to defendant for failingto have statelicense plates when, in fact, he had admitted that the plates were merely expired. The time on thetraffic citationsstated the violations occurred at 12:50 p.m., as opposed to the 12:30 p.m. Jedlowski had testifiedto on directexamination or the 12 p.m. he had testified to before the grand jury. He also issued a violation todefendant forfailing to yield the right of way on a through street even though he had stated that there were noother vehiclesexcept his police vehicle which was approximately a quarter of a block away from defendant'sBuick. Jedlowskifurther stated that defendant did not cut off or fail to yield to his vehicle. Jedlowski had alsostated that he only sawdefendant's face for a second or two while defendant took a step or two toward him and beforedefendant turned andran in the opposite direction. However, in his police report, Jedlowski did not mention thatdefendant ever walkedtoward him. Jedlowski also testified that the bag with the cocaine "was on the floor by the frontseat," butpreviously he had testified that the bag was "in the front seat." Further, even though Jedlowskistated that theidentification of an offender is an important part of an investigation, he did not mention theexistence of thephotographs or I.D. in his police report. In the inventory list for defendant's case, the I.D. carddid not appear,which Jedlowski explained as a clerical error because an inventory number was voided.
On redirect, Officer Jedlowski testified that all the times on the trafficcitations and reports were approximate times. He stated that police reports are not meant as a complete record of every event, but a summary. According toJedlowski, the collage of pictures from which he initially identified defendant consisted of 25 to30 photographs. Hedid not inventory any of the pictures because he had already identified defendant and he had theI.D. card which hewas going to inventory.
Officer Walter Muszynski testified to many of the same events as hadJedlowski, with a few exceptions. He testifiedthat he was driving the police vehicle on June 18 and that when defendant exited the alley, hehad to slam on thebrakes to avoid a collision. After defendant exited his vehicle and asked why he was beingstopped, OfficerMuszynski explained that if defendant would come to the back of the Buick he would explain. Defendant thenbegan running, and Muszynski started to give chase but quickly abandoned it after rememberingboth vehicles wereleft unattended on Drake. After returning to the vehicles, Muszynski checked the Buick for signsthat it was stolen,and then ran a short distance down the block to see if he could tell where Jedlowski had chaseddefendant. Muszynski then ran the Buick's registration number, gave a description of defendant, and calledfor assistance. Muszynski described defendant as "a male black subject, he appeared to be 18, 19 years old, ***black shorts, blackshirt." Approximately a minute or a minute and one-half later, Jedlowski returned. At that time,Muszynskiinformed Jedlowski that he had run the registration. Muszynski then observed Jedlowski reachinside the Buick andpull out a brown bag, which was subsequently identified as containing cocaine andcurrency.
After the check revealed that the registration indicated the 946 northDrake address, Jedlowski and Muszynski wentto the house and spoke with McGee, who allowed them entry. Muszynski further stated thatJedlowski went into thebasement alone while he stayed with McGee. Jedlowski was downstairs for less than a minute. At this time,Muszynski saw a board with many pictures on it from which he recognized a male in some ofthem as defendant. He then saw the I.D. card with a picture that he recognized as defendant.
On cross-examination, Officer Muszynski reiterated that he had to hithis brakes to avoid striking defendant's vehicleand estimated the distance between the two vehicles as a couple car lengths. Muszynski admittedthat although hetestified on direct examination that he summoned defendant to the rear of the Buick to explainwhy he stoppeddefendant, he did not include those facts in his report. Muszynski also admitted that the reportdid not mention thatdefendant ever walked toward the officers. Although Muszynski looked inside the vehicle tocheck for signs it wasstolen, by looking at the steering column, he did not notice the bag near the front passenger seat. There was a periodof time after the first radio transmission and the discovery of narcotics until the next transmissionwhen Muszynskiinformed the dispatcher that the investigation was a narcotics investigation. On redirect,Muszynski explained thatduring this period he was speaking with assisting officers who had arrived, spoken with hispartner, secured thenarcotics and currency in his vehicle, and recovered evidence from the 946 North Drake house.
The State next presented the stipulated testimony of a chemist thatestablished the white rock substances recoveredfrom the Buick were in fact 232.14 grams of cocaine. The State also presented the stipulatedtestimony of anotherpolice officer, who was an expert on the street value of narcotics. The expert calculated the valueof the cocainerecovered to be between $12,000 and $24,000 and, based on the amount of the narcotics, theywere for distribution,not personal use.
After closing arguments, the jury retired and returned a verdict of guilty. The trial court, after conducting a Rule402 conference and denying defendant's motion for a new trial, sentenced defendant to 16 years'imprisonment forpossession of a controlled substance with intent to deliver. The reason for the 402 conferencewas that defendanthad accumulated at least 3 other charges while out on bond and through a plea agreement pledguilty to 2 morecounts of possession of a controlled substance with intent to deliver for which he received 6years' imprisonment foreach count, to run consecutively, and the State nolle prossed an unlawful weaponscharge. In total, defendant wassentenced to 28 years' imprisonment. On appeal, defendant seeks review of only the firstpossession of a controlledsubstance charge.
Defendant argues that the trial court erred in ruling that he was "notentitled to attempt to suppress the State ofIllinois identification card and the illegal fruits of the State of Illinois identification card." Inresolving this issue, itis necessary to determine: whether (1) defendant had standing to contest the search, (2) defendantwaived the issueof McGee's consent to the search by failing to raise it in the trial court, (3) McGee could consentto the search underthe theory of joint or common authority, (4) it was reasonable for the police to rely on McGee'sapparent authority toconsent if, in fact, she lacked actual authority, (5) defendant was entitled to an evidentiaryhearing on his motion tosuppress, and (6) if defendant was entitled to a hearing, the failure of the trial court to grant ahearing mandatesreversal.
The relevant factors in determining whether a defendant has standing tochallenge the seizure of evidence are "hispossessory interest in the area or property seized; prior use of the area searched or propertyseized; ability to controlor exclude others' use of the property; and a subjective expectation of privacy." People v.Delgado, 231 Ill. App. 3d117, 119, 596 N.E.2d 149 (1992). Here, the trial court denied defendant's oral motion tosuppress and exclude theI.D. card after a brief argument before opening statements. The trial court received no evidenceregarding the searchand seizure of the I.D. card, and heard no testimony from witnesses concerning the officers'authority to search thehouse. The thrust of defendant's arguments in his oral motion to quash arrest and suppress theevidence is unclear. It appears from the record that defendant requested a continuance in order to bring McGee in totestify, presumablyto the alleged consent she gave to search, whether the consent was voluntary, and the scope ofthe consent. TheState represented to the trial court that a similar motion had been presented in a related casedealing with the samehouse and McGee. According to the State, "what actually came out was that the officers weregiven consent to gointo the house, into the [defendant's] bedroom, which is also Yolanda's McGee's bedroom andthat the items in thatbedroom were properly viewed by the officers. They were in a place they had a right to bebecause they hadconsent." Immediately after this representation, the trial court denied defendant's motion, butgranted him leave tofile a written motion to suppress, which defendant did the following day, arguing that the searchand seizure wasillegal because defendant had not given his consent for the search. Defendant argues that he hadstanding to seeksuppression of the I.D. card based upon the State's admission that the bedroom belonged tohim.
We find that defendant had standing to challenge the seizure of the I.D.card. The record shows that McGee told thepolice that the bedroom was hers and defendant's. It is clear from the record that the policebelieved the bedroombelonged, at least in part, to defendant. The trial court, after first doubting whether defendanthad standing, accepteddefendant's argument that the State's admission that McGee told the police it was defendant'sbedroom was sufficientto give defendant standing or act as an admission that defendant had standing. The State'sargument that becausedefendant's counsel admitted not knowing whether defendant lived in the bedroom depriveddefendant of standing iswithout merit. Immediately after that exchange, the record discloses that what defendant'scounsel was arguing wasthat there was no evidence of where in the house the I.D. card was recovered. There was morethan one bedroom inthe house. Once the State represented to the trial court that the I.D. was located in defendant'sbedroom, and theState never refuted its police officers' belief, we find that the trial court properly found thatdefendant had standing.
Having found that defendant had standing, we turn to whether thewarrantless search of the bedroom was inviolation of defendant's fourth amendment rights. As a general rule, warrantless searches of aresidence are per seunreasonable. See Illinois v. Rodriguez, 497 U.S. 177, 181, 111 L. Ed. 2d 148, 110S. Ct. 2937 (1990). However,no warrant is necessary if a person gives consent for a search. Rodriguez, 497 U.S.at 181. It is well settled thatanyone with common authority over property has the ability to effectively give consent to searchthat property and itneed not be the defendant. Matlock v. U.S., 415 U.S. 164, 39 L. Ed 2d 242, 94 S.Ct. 988 (1974). The rationale isthat a defendant takes the risk that someone with common authority over areas will allow asearch of those areas. Matlock, 415 U.S. at 164. Thus, the question in the present case becomes whetherany consent McGee may havegiven was effective and valid for the search of defendant's bedroom. As a preliminary matter, theState argues thatdefendant has waived any objection to McGee's consent by failing to raise the issue at trial. Inresponse, defendantargues that he adequately preserved all issues.
In People v. Walensky, 286 Ill. App. 3d 82, 615 N.E.2d952 (1996), the defendant was convicted of possession of acontrolled substance with intent to deliver. Before trial, he sought the suppression of evidencebased upon adefective warrant. The trial court initially ruled that the facts supporting the warrant lackedprobable cause, andsuppressed the evidence. The State successfully argued a motion to reconsider based upon the"good faith"exception to the fourth amendment. See United States v. Leon, 468 U.S. 897, 82 L.Ed. 2d 677, 104 S. Ct. 3405(1984). The defendant sought an evidentiary hearing to demonstrate the police officer's lack ofgood faith. The trialcourt stated it would allow the introduction of such evidence only if the defendant filed a writtenmotion supportedby affidavits. The defendant failed to comply with the trial court's order and the request for anevidentiary hearingwas subsequently denied. On appeal, this court held that defendant had waived the issue of thetrial court's denial ofhis request for an evidentiary hearing. The Walensky court found that thedefendant had failed to adequatelypreserve the issue by raising it specifically in his post-trial motion for a new trial. In that motion,the defendantsimply stated that he was entitled to a new trial based on his "objections during the course of thetrial." Walensky,286 Ill. App. 3d at 96. This court found that statement too general "to have alerted the circuitcourt to any proposederror in its ruling regarding an evidentiary hearing" and, therefore, the defendant had waived theissue. Walensky,286 Ill. App. 3d at 96.
In the present case, defendant was unaware that the police recovered anyproperty from their search. Until helearned that the State was planning on introducing the I.D. card, he would have had no reason torequest anevidentiary hearing. Once he learned of the card, he asked the court for a continuance toinvestigate the matter andprepare a motion to suppress the evidence. He specifically stated that he would locate a witnessto come in andtestify at the suppression hearing. Although defendant never mentioned McGee's namespecifically during this oralargument, there is no other witness that defendant could have sought to call with respect to thisissue. The State andtrial court both recognized this fact when they spoke of McGee's consent to allow a search. Additionally, in hispost-trial motion, defendant asserted the following errors:
"3. That the Court committed error when it denied the Defendant's motionfor a continuance after ruling thatthe State could use the Defendant's picture ID.
4. That the Court committed error when it denied theDefendant's motion for a continuance in order toproceed on a hearing on Defendant's motion to suppress the picture ID.
5. That the Court committed error when it denied theDefendant's motion to suppress evidence."
It is beyond argument that since defendant was notat the house to give his consent to a search that someone otherthan defendant must have consented to the search of his bedroom. The only person this couldhave been wasMcGee because she was the only person the officers spoke to in the house. Consequently, anymotion to suppressthe evidence based upon an illegal search would have to address McGee's consent, the scope ofthat consent,whether the consent was voluntary, and whether she had authority to consent to the search ofdefendant's bedroom. Defendant's oral argument and written motion to suppress made it clear he was challenging theState's authority toseize the I.D. card. His post-trial motion made it clear that he was advising the trial court that hebelieved it erred innot suppressing the evidence. Unlike Walensky, defendant in the present case hadinformed the trial court whatrulings he objected to, not just a blanket statement of all objections he made during the course oftrial. Therefore,we find that Walensky is distinguishable and that defendant has not waived thisissue for review.
We turn now to the issue of whether McGee could consent to the searchof defendant's bedroom. The recordindicates that the police believed McGee shared the bedroom with defendant, who was herboyfriend. Living withanother person is a type of common authority. People v. Steinberg, 260 Ill. App.3d 653, 657, 633 N.E.2d 142(1994). The record, however, is completely silent on what McGee would have testified to at asuppression hearing,and it is silent on whether McGee actually had authority to consent, the scope of her consentgiven to the police, andthe circumstances surrounding that consent. McGee never testified at trial, and the only versionof the events therecord contains is that of the police officers. As such, it is impossible to determine, without moreevidentiary facts,whether McGee actually had authority to consent to a search of the bedroom. The question thenarises whether thepolice could have reasonably relied on apparent authority to consent if the person consentingdoes not have actualauthority.
In Rodriguez, the defendant was charged with possessionof a controlled substance with intent to deliver. The policediscovered the narcotics after a former girlfriend of the defendant's consented to a search of hisapartment. Therecord in Rodriguez was unclear whether the girlfriend indicated to the police thatshe still lived there. When theyarrived at the apartment, the girlfriend opened the door with a key she had, and consented to theofficers entering. In plain view were narcotics. The defendant was asleep in another room containing morenarcotics. At that time,the police arrested the defendant. Subsequently, the trial court suppressed all the evidence,ruling that the State hadfailed to demonstrate the defendant's girlfriend had actual authority to consent to the search. Thetrial court alsoruled that any reasonable belief the officers may have had that the girlfriend possessed authority,even though shedid not, would not cure the fourth amendment violation. This court affirmed the trial court, andour supreme courtdenied the State's petition for leave to appeal. Rodriguez, 497 U.S. at 180-81. After granting a petition forcertiorari, while the Supreme Court agreed with this court that the State had failedto demonstrate the defendant'sgirlfriend had "joint access or control for most purposes" of the apartment and, as such, lackedactual authority toconsent to a search of the apartment, the Rodriguez Court nonetheless reversed thedefendant's convictions andremanded the case, finding that the police properly could have reasonably relied on thegirlfriend's apparentauthority to consent. Rodriguez, 497 U.S. at 182. More specifically, theRodriguez Court stated:
"We see no reason to depart from this general rule [of reasonableness] withrespect to the facts bearing uponthe authority to consent to a search. Whether the basis for such authority exists is the sort ofrecurring factualquestion to which law enforcement officials must be expected to apply their judgment; and allthe FourthAmendment requires is that they answer it reasonably. The Constitution is no more violatedwhen officersenter without a warrant because they reasonably (though erroneously) believe that the personwho hasconsented to their entry is a resident of the premises, than it is violated when they enter without awarrantbecause they reasonably (though erroneously) believe they are in pursuit of a violent felon who isabout toescape." Rodriguez, 497 U.S. at 186, quoting Archibald v. Mosel,677 F.2d 5 (1st Cir. 1982).
In the present case, there is no direct evidence fromMcGee or defendant of what McGee's authority within thehouse was, their relationship, or who lived in the bedroom. The only evidence presented was thehearsay statementsof the police officers that McGee told them defendant lived in the bedroom, that she shared thebedroom with him,and that they were romantically involved. As stated above, there was no way for the trial court todetermine thescope of McGee's actual authority. There was no evidence of who owned the house, and theregistration on theBuick that led the officers to the house in the first place belonged to neither McGee or defendant. The trial courtnever actually ruled on McGee's authority or consent. In its ruling, the trial court accepted theState's representation,that in a prior motion on a related case, McGee was found to have consented to the search, andthat the bedroomMcGee claimed as hers, was one she shared with defendant. However, without more evidentiaryfacts, it isimpossible for us to determine whether the police reasonably relied on any statements McGeemay have made.
Defendant next argues that he was entitled to an evidentiary hearingregarding the admissibility of the I.D. cardoutside the presence of the jury. The State contends otherwise, and further argues that the I.D.card was properlyadmitted to demonstrate the officers' investigatory process. The State also argues that even if thepolice had notsearched the residence and found defendant's I.D. card, it would still have located defendantbecause McGee hadgiven the police defendant's full name when asked who was driving the Buick, thus making anyerror harmless.
In People v. Robinson, 46 Ill. 2d 229, 263 N.E.2d 57(1970), the defendant was convicted of armed robbery. Onappeal, the defendant argued, and the record established, that he was denied a fair hearing on hismotion to suppressevidence of his identification. Our supreme court held that, under the circumstances of the case,"there is noquestion that a defendant has a right to a fair and impartial hearing to determine whether hisidentification was basedsolely on the victim's observation of the robber at the time of the crime or whether it wasimproperly influenced." Robinson, 46 Ill. 2d at 232-33; see also People v. DeJesus, 163 Ill.App. 3d 530, 533, 516 N.E.2d 801 (1987)(following Robinson); People v. Stiles 95 Ill. App. 3d, 959, 964-65,420 N.E.2d 1204 (1981) (holding it "isfundamental that a defendant is entitled to a full and fair hearing on [a] motion tosuppress").
In attempting to distinguish Robinson and the other casesrelied upon by defendant, the State argues that in thepresent case defendant was given a suppression hearing at which he failed to offer evidence thatMcGee's consentwas not given voluntarily or even that McGee's consent was an issue in the case. InPeople v. Gacho, 122 Ill. 2d221, 229, 522 N.E.2d 1146 (1988), relied upon by the State, the defendant claimed his fourthamendment rightswere violated when the State impermissibly interjected a victim's statement into evidencethrough a police officer. The Gacho court held that the substance of the conversation was admissible toshow the officer's investigatoryprocedure, based on the officer's personal knowledge, and "is admissible although the inferencelogically to bedrawn therefrom is that the information received motivated the officers' subsequent conduct." Gacho, 122 Ill. 2d at248.
In the present case, defendant made it clear to the trial court as soon ashe became aware of the I.D. card, and theState's proposed use of it, that he wanted a continuance to investigate and prepare a motion tosuppress. We find theState's argument, that defendant was afforded a "full and fair hearing," disingenuous. Therecould have been no wayfor defendant to prepare an argument for the suppression of a piece of evidence he did not evenknow was in thepossession of the police until immediately before the trial court's ruling. Defendant did not havethe opportunity tocall witnesses because he could not have anticipated the need to do so before the State disclosedthe location of theI.D. card. Defendant could not make arguments to the trial court without first investigating thefacts surrounding theseizure of the I.D. card. Until he became aware that the police had seized property to be used attrial, there wouldhave been no reason for defendant to file a motion to suppress, and no reason to question McGee. Only once itbecame apparent that the actions of the police in retrieving evidence during a warrantless searchwould produceevidence against him was defendant aware that there was evidence subject to suppression. Infact, even in Gacho,the case relied upon by the State, the defendant was afforded a full evidentiary suppressionhearing where witnessestestified before the trial court made a ruling on the admissibility of the contestedevidence. Accordingly, we findthat, based on Robinson and Stiles, the trial court erred in denyingdefendant's request for a full evidentiary hearingon his motion to suppress.
Defendant next argues that the State should have been either barredfrom using the I.D. card as a sanction for failingto disclose it, or in the alternative, he should have been granted a continuance to investigate theevidence andprepare a motion to suppress. The State argues that defendant was not entitled to any sanctionsagainst it or acontinuance because it did tender the I.D. card to defendant and immediately notified him whenit was apparent theI.D. card was inventoried under another defendant's name. The State further argues thatdefendant's counsel was onnotice that the I.D. card was inventoried because counsel represented all the other defendants inrelated cases,including the one in which the I.D. card was inventoried. The State also argues that defendantwas given asuppression hearing and, even if he did not receive the hearing as he so argues, he has waivedthis issue by failing toproperly preserve his objection.
For the reasons previously discussed above, we find that defendant hasnot waived this issue on appeal. As to themerit of defendant's argument, the record shows that the State disclosed that it possessed the I.D.card the nightbefore opening statements, after defendant's trial had begun. The State informed the trial court itintended tointroduce the I.D. card as evidence for the limited purpose of establishing the officers' course ofconduct inidentifying defendant. The previous day, however, defendant had questioned the State onwhether any photographsor other materials had not yet been disclosed, and the State answered that everything had beendisclosed. The Statemaintains, nonetheless, that it did not violate the discovery rules because the document wastendered, and even if itdid violate the rules, any violation was harmless.
In People v. Chambers, 258 Ill. App. 3d 73, 629 N.E. 2d606 (1994), the defendant was charged with delivery of acontrolled substance. He was arrested for selling narcotics to an undercover police officer. Athis trial, the Stateintroduced police photographs of the defendant that the officers used to confirm his identity. Inaddition, the Stateelicited testimony about how the police received their initial information about the defendant,mainly by filling out acontact card when he was interviewed immediately after the sale, but before he was arrested. Onappeal, thedefendant claimed the State failed to timely present the contact card and police photographs tohim and as suchviolated the discovery rules. The Chambers court held that any argument relatingto the contact card had beenwaived by the defendant in failing to raise it at trial or in a post-trial motion. As for thephotographs, the court notedthe general rule that Supreme Court Rule 412 relating to discovery, "is mandatory, andcompliance is only excusedwhen the State, exercising due diligence, could not have learned of the information before trial." Chambers, 258 Ill.App. 3d at 86. However, the Chambers court noted that not every instance ofnoncompliance will automaticallynecessitate a new trial. A new trial is only necessary when the defendant was prejudiced. Chambers, 258 Ill. App.3d at 86. The court further noted that "[a]mong the factors to be considered in determiningwhether a new trial isrequired because of a discovery violation are the closeness in the evidence, the strength of theundisclosed evidence,and the likelihood that prior notice could have helped discredit the undisclosed evidence." Chambers, 258 Ill. App.3d at 86. It is the defendant's burden to demonstrate how he was prejudiced and to show howearlier disclosure"would have altered [his] trial strategy and possibly changed the outcome of the case." Chambers, 258 Ill. App. 3dat 86, quoting People v. Cisewski, 118 Ill. 2d 163, 173, 514 N.E. 2d 970 (1987). Inaffirming the defendant'sconvictions, the Chambers court found that the defendant had not demonstratedhow he was prejudiced by theintroduction of the photographs; he had prior knowledge that there were photographs, had notrequested acontinuance to investigate, and failed to show how previous knowledge would have helped himin discrediting thephotographs. Chambers, 258 Ill. App. 3d at 86-87.
In People v. Heinzmann, 232 Ill. App. 3d 557, 597 N.E.2d 942 (1992), the defendant and a codefendant werecharged with stealing pigs. The defendants' first trial resulted in a mistrial after the State failedto disclose somediscovery materials. Heinzmann, 232 Ill. App. 3d at 558. After declaring themistrial, the trial court "stronglysuggest[ed]" the State sit down with the defendants' attorney and make sure all discoverablematerials had beendisclosed. Heinzmann, 232 Ill. App. 3d at 558. During the examination of the firstwitness at defendant's secondtrial, it was discovered that yet another piece of material had not been disclosed. This time it wasa prior writtenstatement of a witness, who was also involved in the theft, to the police that also mentionedanother individualpreviously unknown to the defendants. The trial court dismissed all the charges against thedefendants as a result ofthe State's failure to comply with discovery. Heinzmann, 232 Ill. App. 3d at 558. This court affirmed, stating thatnone of the less severe discovery sanctions would provide acceptable relief to the defendantsbecause the trial hadalready begun, the jury was sworn, the nondisclosed document contained the name of a potentialwitness for thedefendants who was previously unknown, and any continuance would have highlighted theincriminating testimonyof the witness in the jurors' minds. Heinzmann, 232 Ill. App. 3d at561.
In the present case, unlike Chambers, defendant didrequest a continuance to investigate. We do not understand howa short continuance, which, as the Heinzmann court noted is the "preferred sanctionfor a discovery violation"(Heinzmann, 232 Ill. App. 3d at 560), would have substantially prejudiced eitherside. The State's entire caserevolved around the identification of the man the officers saw flee from the Buick. Obviously,any evidence theState sought to introduce relating to that identification is relevant, and defendant should havebeen given anopportunity to challenge it. However, unlike Heinzmann, a lesser sanction thandismissal is appropriate in this case. While we recognize that the jury had been sworn, and the trial court was not at liberty to simplydismiss the jurywithout implicating double jeopardy concerns (see People v. Blake, 287 Ill. App.3d 487, 490-91, 678 N.E.2d 761(1997)), we fail to see how a short continuance would have prejudiced either party. Instead, acontinuance wouldhave afforded defendant an ability to have a full and fair hearing to which he was entitled on hismotion to suppress. Accordingly, we find that the trial court's denial of defendant's request for a continuance was anabuse of discretion. See generally Robinson, 46 Ill. 2d 232-33 (a defendant is entitled to a full and fairevidentiary hearing).
We also reject the State's argument, that defendant was on notice of theexistence of the I.D. card because hiscounsel was representing other defendants who lived in the same house, including the defendantwhose case the I.D.card was actually inventoried under, is unsupported by the record. The State makes blanketstatements thatdefendant's counsel must have been aware of the information because it was contained in othercourt files, but failsto point to anywhere in the record where the information appears. Discovery documents fromanother case arisingfrom the seizure of narcotics from the same house appear in the record but nowhere in that reportdoes the I.D. cardappear even though there is a long narrative of events, and a long list of narcotics, currency, andweaponsinventoried. Moreover, assuming arguendo that the I.D. card was disclosed duringthe course of the case of anotherdefendant who was represented by the same counsel representing both defendants in separatetrials, the State fails tocite to authority, and our research reveals none, supporting its argument that the disclosure in onedefendant's casecan be deemed to have been disclosed pursuant to a discovery request in another defendant'scase.
The State also argues that even if the trial court should have granted acontinuance and had a full evidentiary hearingon defendant's motion to suppress, reversal is not necessary because the error was harmlessbeyond a reasonabledoubt. Defendant argues that it is impossible to determine whether the error washarmless.
A harmless error is one where "a reviewing court [is] satisfied beyond areasonable doubt that the error did notcontribute to the defendant's conviction." People v. St. Pierre, 122 Ill. 2d 95,113-14, 522 N.E.2d 61 (1988). "[T]odetermine whether an error is harmless, 'it is necessary to review the facts of the case and theevidence at trial' todetermine the effect of the unlawfully admitted evidence 'upon the other evidence adduced attrial and upon theconduct of the defense." St. Pierre, 122 Ill. 2d at 114, citing Fahy v.Connecticut, 375 U.S. 85, 87, 11 L. Ed. 2d171, 84 S. Ct. 229 (1963).
Defendant here has failed to demonstrate how the introduction of theI.D. card, used simply in the identification ofdefendant, prejudiced him. See Chambers, 258 Ill. App. 3d at 86. Additionally,defendant has failed to show howearlier disclosure would have altered his trial strategy or possibly changed the outcome of thecase. See Chambers,258 Ill. App. 3d at 86. Since the police officers had all the information they needed to identifydefendant, based ontheir discussion with McGee, before even seeing any photographs of defendant or the I.D. card,and could have usedthis previously obtained information to identify defendant, we find that any error in failing tohold an evidentiaryhearing and allowing introduction of the I.D. card was harmless beyond a reasonabledoubt.
In summary, since the State had conceded, and the trial court properlyfound, that defendant had standing tochallenge the search of his bedroom and the seizure of the I.D. card, and there was no evidencethat a shortcontinuance would have unduly prejudiced The State, it was error for the trial court not tocontinue the matter andhold an evidentiary hearing to determine the factual question of what authority McGee had toconsent to a searchand whether it was reasonable for the officers to rely on her assertion of authority if in fact shehad no actualauthority. However, the officers would have discovered all the necessary facts of defendant'sidentification with theinformation they previously obtained from McGee, mainly defendant's name. Therefore, we holdthat defendant wasnot prejudiced, and the trial court's error in denying him a continuance and an evidentiaryhearing, was harmless,and does not require reversal for a new trial or a remand for a hearing on his motion tosuppress.
We also reject defendant's additional contention that he was denied afair trial "when officer Jedlowski testified, overobjection, that he ran a check at the police station on the defendant's State of Illinoisidentification card and on thedefendant and a positive result came back from the check." Defendant argues the testimonytended to show that hewas a bad person who had prior contact with the police. Defendant further argues that since heturned himself in tothe police, any testimony concerning the officers' attempt to procure a warrant against himbecame irrelevant. TheState argues that the testimony of the actions taken by Jedlowski after receiving defendant's namewas admissible toshow the officers' investigatory procedure based on the officers' direct knowledge.
Defendant fails to cite to authority in support of the proposition that anofficer's testimony concerning his proceduresafter receiving information to investigate is inadmissible. There was no evidence presented thatthe officer stated heran a criminal history check on defendant which came back positive. Nor does defendant cite toany authority insupport of his argument that simply because a defendant surrendered himself makes the officers'attempt to procurea warrant irrelevant. On the contrary, we believe it is logical that there would have been noreason for defendant tosurrender himself had a warrant not been issued. Defendant did not surrender himself during theday after theseizure of the evidence, but instead waited until after he knew the police were looking forhim.
In People v. Griggs, 104 Ill. App. 3d 527, 432 N.E.2d1176 (1982), the defendant was charged with armed robbery. During his trial, a police investigator testified that after speaking with a witness, he went back tothe police stationand ran a partial license plate that subsequently came back registered to the defendant. Thiscourt held that thetestimony was proper. Specifically, the Griggs court found, citing with approvalthe rule articulated in People v.Dunning, 88 Ill. App. 3d 706, 410 N.E.2d 1052 (1980), that "[w]here a police officertestifies that he had aconversation with an individual and that he subsequently acted thereon, without revealing thesubstance of theconversation, such testimony is based upon the officer's personal knowledge and is competent toshow the officer'sinvestigatory procedure." Griggs, 104 Ill. App. 3d at 531, citingDunning, 88 Ill. App. 3d at 709.
In People v. Wilson, 168 Ill. App. 3d 847, 523 N.E.2d 43(1988), the defendant was convicted of murder andattempted armed robbery. On appeal, he argued the trial court erred in admitting an officer'stestimony concerningthe officer's investigatory procedures. At the trial, a police detective testified that he received ananonymoustelephone call, and as a result, gathered evidence on the defendant's accomplice and arranged fora witness to view aphotobook with the accomplice's photograph in it. Wilson, 168 Ill. App. 3d at 849. The detective testified that afterthe accomplice's arrest and questioning, the defendant became a suspect. This court, inreaffirming the ruleestablished in Dunning and Griggs, further stated that "[w]here suchtestimony is confined strictly to the officer'sphysical activities, the bare occurrence of the conversation and the testimony is subject tocross-examination, thisevidence is not within the legal definition of hearsay. Wilson, 168 Ill. App. 3d at850, citing People v. Sander, 37Ill. App. 3d 236, 345 N.E.2d 757 (1976).
In the present case, Officer Jedlowski testified that after he askedMcGee, "Do you know whose car this is," she tookhim downstairs to defendant's bedroom. After recovering the I.D. card, Jedlowski then ran acheck on defendantand received a result from that check. The evidence Jedlowski testified to was confined to hisphysical activities andJedlowski was subject to cross-examination. The evidence in the present case, like that inGriggs and Wilson,demonstrated Jedlowski's investigatory procedure and, as such, we find that it was not error toadmit the testimony.
For the reasons stated, we therefore affirm defendant's convictions andsentences.
Affirmed.
CAHILL, P.J., and LEAVITT, J., concur.