People v. Meyer

SUPREME COURT CASES

Laws-info.com » Cases » Illinois » 4th District Appellate » 2010 » People v. Meyer

People v. Meyer

State: Illinois

Court: 4th District Appellate

Docket No: 4-09-0153 Rel

Case Date: 07/08/2010

Preview:NO. 4-09-0153 IN THE APPELLATE COURT OF ILLINOIS FOURTH DISTRICT THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GREGORY L. MEYER, Defendant-Appellant.

Filed 7/8/10

) Appeal from ) Circuit Court of ) Adams County ) No. 06CF743 ) ) Honorable ) Scott H. Walden, ) Judge Presiding. _________________________________________________________________ JUSTICE McCULLOUGH delivered the opinion of the court: In February 2007, the State charged defendant with two counts of unlawful possession of a weapon by a felon, a Class 3 felony (720 ILCS 5/24-1.1(a), (e) (West 2006)). The State

alleged that defendant knowingly possessed a Llama 9-millimeter handgun (count IV) and 9-millimeter ammunition (count V), while having a prior felony conviction for burglary. At that time, the

State also charged defendant with two counts of delivery of a controlled substance (hydrocodone), one count of unlawful delivery of a controlled substance (morphine), and one count of unlawful possession with intent to deliver a controlled substance (hydrocodone) (720 ILCS 570/401(d) (West 2006)). The State later

severed defendant's drug and weapons charges, going to trial first on the weapons charges. In June 2007, a jury convicted defendant of two counts of unlawful possession of a weapon by a felon. In July 2007,

defendant entered a negotiated guilty plea to one count of delivery of a controlled substance, and the State dismissed the

remaining charges.

In August 2007, the trial court sentenced

defendant to three years' imprisonment on each weapons count and four years on the delivery count, with all sentences to be served concurrently. In November 2008, this court dismissed defendant's

initial appeal from his weapons convictions because of a pending motion to reduce sentence in People v. Meyer, No. 4-08-0039, slip order at 9 (November 13, 2008) (unpublished order pursuant to Supreme Court Rule 23). On remand, the court permitted defendant

to withdraw his motion to reduce sentence because he had finished serving his prison term. Defendant again appeals his convictions for unlawful possession of a weapon and ammunition by a felon. Defendant

argues (1) his trial counsel was ineffective for failing (a) to move to suppress video taken of the inside of his home by a confidential informant, (b) to challenge the warrant application as fatally defective, and (c) to stipulate to defendant's status as a convicted felon; (2) the evidence was insufficient to sustain a conviction for possession of handgun ammunition, as the State failed to show that the ammunition was live; (3) the State committed plain error when it introduced evidence regarding defendant's prior felony conviction; (4) plain error occurred when the videotape was admitted without a proper foundation; and (5) the prosecutor committed reversible error when he made improper comments on the evidence during closing arguments. We affirm. On December 20, 2006, Harold Meyers, a confidential - 2 -

informant of the West Central Illinois Task Force, agreed to wear a buttonhole camera during the controlled purchase of narcotics from defendant. Following the purchase, Meyers filled out an

affidavit, which stated the following: "1. Jane Doe is not my real name, but is the name I am using for this search warrant. 2. *** I have read the description for [defendant's] trailer that is contained in the search warrant and it is true and correct. 3. *** I am familiar with the color and texture of Hydrocodone, Morphine, and Adderal through my own personal use. 4. Within the last 72 hours I have been to the residence of [defendant] ***. At the

time I was inside the residence, I saw approximately 20-30 Hydrocodone pills lying on top of a table in plain view inside of the kitchen area ***. 5. On prior occasions I have received and purchased Hydrocodone from [defendant]. 6. I was also shown a photograph of a subject who I identified as [defendant]. 7. I have not been promised anything in return for my cooperation in this case." In conjunction with Meyers's affidavit, Officer Brian - 3 -

Martin of the Quincy police department filed a complaint for a search warrant of defendant's trailer. The application further

alleged Meyers had informed police that defendant was selling prescription narcotics out of his home for between $3 and $10 per pill. On December 21, a trial judge granted police a warrant to Neither

search for prescription narcotics in defendant's home.

the warrant application nor Meyers's affidavit mentioned the firearm, the ammunition, the controlled purchase, or the video. On December 22, 2006, police executed the search warrant. A search of the premises turned up a 9-millimeter Llama

handgun, 9 rounds of unfired ammunition, one 9-millimeter magazine, 20 tablets of hydrocodone, and proof of address. The

handgun was found inside a lockbox, which police also confiscated. Also on December 22, the State filed a four-count information against defendant. In February 2007, a grand jury

indictment containing the charges listed above superceded the original information. Prior to trial, the State sought defendant's stipulation that he had a 1972 felony burglary conviction. Defense

counsel declined to stipulate to the prior conviction. At defendant's June 2007 trial, the State introduced as evidence the testimony of Officer Martin and Inspector Lee Mangold of the Quincy police department, along with the digital video disc (DVD) showing defendant holding pills and a firearm taken by Meyers. The DVD was played for the jury. - 4 Defendant's

trial counsel did not object to the DVD being played. The State then offered defendant's indictment for burglary, guilty-plea form, jury-waiver form, and probation order as proof of defendant's 1972 felony burglary conviction. Defendant testified in his own behalf. Defendant

admitted that he was the person on the video holding the handgun. Defendant also admitted that he had received the handgun a few days before from a cousin for safekeeping. He placed it in the

lockbox because his relatives' children were frequently in his home over the holidays. Defendant also admitted that he did not

have a valid firearm owner's identification (FOID) card and had been convicted of burglary in 1972. David Winters testified that he was defendant's cousin. Winters purchased the handgun and ammunition, which was live, in Arkansas. Winters did not have a valid FOID card, so he gave the Defendant

handgun and ammunition to defendant for safekeeping.

had the only key to the lockbox in which the handgun and ammunition were found. As stated, this court dismissed defendant's initial appeal because the trial court had not ruled on his motion to reduce sentence. Meyer, slip order at 9. Following the dis-

missal, the court permitted defendant to withdraw his motion as moot because he had finished serving his prison term. This appeal followed. Defendant first argues that his trial counsel rendered ineffective assistance when he (1) failed to move to suppress the - 5 -

video as the product of an illegal search, (2) failed to challenge the warrant itself as defective, and (3) declined to stipulate to defendant's status as a felon. To sustain a claim for ineffective assistance of counsel, the defendant must show that counsel's performance was deficient and, but for the deficient performance, a reasonable probability exists that the outcome of the proceeding would have been different. People v. Colon, 225 Ill. 2d 125, 135, 866 Performance is deficient where it is Colon, 225

N.E.2d 207, 213 (2007).

unreasonable under prevailing professional standards. Ill. 2d at 135, 866 N.E.2d at 213.

A reasonable probability is

one sufficient to undermine our confidence in the outcome of the proceeding. People v. Manns, 373 Ill. App. 3d 232, 239, 869 The failure to satisfy either prong of Colon, 225

N.E.2d 437, 442 (2007).

the test is fatal to an ineffective-assistance claim. Ill. 2d at 135, 866 N.E.2d at 213.

Defendant first argues that the State violated his fourth-amendment right to be free from unreasonable searches when Inspector Mangold sent Meyers into his home with a concealed video camera without first obtaining a warrant. The fourth amendment protects people against unreasonable government searches and seizures of persons, houses, papers, papers, and effects. U.S. Const., amend. IV. The fourth amend-

ment does not protect anything that the defendant knowingly exposes to another member of the public, including a government agent. Hoffa v. United States, 385 U.S. 293, 302-03, 17 L. Ed. - 6 -

2d 374, 382-83, 87 S. Ct. 408, 413-14 (1966).

As the Hoffa Court

stated, the fourth amendment does not protect against "a wrongdoer's misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it." 302, 17 L. Ed. 2d at 382, 87 S. Ct. at 413. Hoffa, 385 U.S. at In Lopez v. United

States, the United States Supreme Court held that the defendant had no privacy interest sufficient to protect against the admission of the recording of a conversation between the defendant and a government agent, made by the agent himself. Lopez v. United

States, 373 U.S. 427, 438, 10 L. Ed. 2d 462, 470, 83 S. Ct. 1381, 1387-88 (1963). Following the Supreme Court's reasoning from

Lopez, federal courts of appeal have held that video recordings obtained by or with the consent of a government agent do not constitute an unconstitutional search. See, e.g., United States

v. Brathwaite, 458 F.3d 376, 381 (5th Cir. 2006); United States v. Lee, 359 F.3d 194, 201 (3d Cir. 2004) (holding no violation occurred where the defendant was in the room but the recording device was not on his person); United States v. Davis, 326 F.3d 361, 367 (2d Cir. 2003). Defendant had no constitutionally protected privacy interest in any activity that Meyers viewed in his home. includes defendant's possession of the handgun. This

Meyers simply

obtained the most reliable evidence of events that he witnessed and could have testified to. Because any motion to suppress the

video on the grounds that it was obtained in violation of the fourth amendment would have failed, defendant's counsel's deci- 7 -

sion not to challenge the video on constitutional grounds was not deficient. Moreover, no prejudice arose because the video would

not have been suppressed. Defendant further argues that article I, section 6, of the Illinois Constitution of 1970 (Ill. Const. 1970, art. I,

Download People v. Meyer.pdf