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People v. Jackson

NOVEMBER 15, 1971.




APPEAL from the Circuit Court of Cook County; the Hon. THOMAS R. McMILLEN, Judge, presiding.


On January 17, 1967, defendant, R.D. Jackson, and Jonnie Mae Kimmons, his mother-in-law, were indicted for unlawfully possessing marijuana, in violation of section 22-3 of the Criminal Code. (Ill. Rev. Stat. 1965, ch. 38, par. 22-3.) Both Jackson and Mrs. Kimmons pleaded not guilty and waived their right to trial by jury. At the bench trial the charge against Mrs. Kimmons was dismissed when the prosecution concluded its case-in-chief. Jackson was found guilty, convicted of the crime as charged, and subsequently sentenced to serve a term of no less than two, nor more than four years in the penitentiary. Defendant appeals.

It appears from the record that on June 8, 1966, pursuant to a duly executed search warrant, Detective Richard McKelvey of the Chicago Police Department, with three other police officers, searched the third floor apartment of the building at 4053 West Van Buren Street, Chicago. Mrs. Kimmons was the only adult in the apartment at this time.

The search of this apartment revealed a quantity of marijuana in a hat box under the bed in the front bedroom. When Mrs. Kimmons was confronted with this contraband, she stated that she had no knowledge of its presence. Officer McKelvey testified that while the search was being conducted the telephone rang and he heard the caller say, "Get the key, get the stuff out of the room, the police are coming." Mrs. Kimmons indicated to the investigating officers that she was unaware of the identity of the caller.

In addition to the marijuana, an electric bill and final reminder from the electric company were found in the dresser which was located in the same room where the marijuana was discovered. These bills were addressed to the name of Jimmie Brown. Letters addressed to R.D. Jackson and letters and magazines addressed to Jimmie Brown were found in other portions of the apartment. Articles of male and female clothing were also found in the bedroom where the marijuana was found as well as in its adjacent closet.

On direct examination by the prosecution, Officer McKelvey testified that he was aware of the fact that defendant used the following aliases: Jimmie Brown, Flip, Robert Jackson and R.D. Jackson. This officer further testified that he was not present at the time of defendant's arrest.

At the trial, Mrs. Kimmons testified that defendant had been married to her daughter for four or five years and that they resided together in the apartment. She further stated that the door to the room where the marijuana was found was always locked, that she never cleaned this room and that she paid defendant $65.00 per month for her part of the rent. At the conclusion of her testimony, the trial judge, being of the opinion that Mrs. Kimmons was not aware of the presence of the marijuana, dismissed the charge against her.

Sergeant Kurowski testified that pursuant to a warrant, he and Officer Donald Dura arrested the defendant on the evening of September 7, 1966, at a pool room located at 1144 South Kedzie Avenue, Chicago. Officer Kurowski testified that upon seeing the defendant, he asked him to identify himself. Defendant identified him to be R.D. Jackson and was then placed under arrest. When advised of his constitutional rights, this officer stated that the only statement which defendant made at that time was; "I know that." When asked if Jackson said anything other than: "I know that," Officer Kurowski responded negatively.

Detective Donald Dura testified that when he and Officer Kurowski informed Jackson that he was under arrest, he immediately responded stating: "What do you want me now for? You put me out of business when you got my stuff at the house." Over defendant's objection, the trial judge ruled the evidence of that statement to be admissible in evidence.

Jackson, when called to testify in his own behalf, stated that he did not reside in the 4053 West Van Buren apartment during June of 1966, that he did not use the name, Jimmie Brown; that at the time of his arrest he did not make the statement which Officer Dura testified to, and that he knew nothing about the marijuana which was found in the apartment. Defendant further testified that to his knowledge, the other occupants of the apartment had access to the bedroom where the narcotic was found.

The last witness to testify on defendant's behalf was Carol Jackson, defendant's wife. She stated that she resided in the Van Buren apartment during June of 1966, but that her husband did not Mrs. Jackson testified that she and her husband separated in January of 1966, and that since then, he had not been to their apartment.

In prosecuting this appeal, defendant has raised four contentions. They are: (1) that the testimony of Mrs. Kimmons should not have been considered against him; (2) that the evidence of the statement which he allegedly made at the time of his arrest should have been suppressed; (3) that the lower court erred in refusing to allow the defense to read to Officer McKelvey, the transcript of the testimony which he rendered at the preliminary hearing; and (4) that the evidence was insufficient to establish his actual or constructive possession of the marijuana.

• 1, 2 Regarding the admissibility of Mrs. Kimmons testimony as it related to the issue of defendant's guilt, it is urged that this testimony should not have been considered by the trial judge due to the fact that defendant's attorney was not afforded the opportunity to cross-examine her. It does not appear from the record that defendant objected to the consideration of this testimony, that defendant requested to cross-examine this witness, or that defendant was precluded from cross-examining this witness. The failure to object to the admission of evidence must be considered to constitute a waiver of that objection. Callaghan v. Miller, 17 Ill.2d 595; Bonczkowski v. Kucharski, 13 Ill.2d 443.

• 3 The introduction of the evidence of the statement allegedly made by defendant at the time of his arrest, did not, as he now contends, violate the holdings of the Supreme Court in Miranda v. ...

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