APPEAL from the Circuit Court of Du Page County; the Hon.
GEORGE W. UNVERZAGT, Judge, presiding.
MR. JUSTICE DIXON DELIVERED THE OPINION OF THE COURT:
Defendant, Christopher Lyda, was indicted by the Du Page County grand jury on one count of possession of cannabis and one count of obstruction of justice. He was found guilty on both counts at a bench trial and sentenced to concurrent terms of 1 to 3 years on the possession count and 1 year on the obstruction of justice count. Defendant argues on appeal that the trial court erred in denying his motion to suppress because of lack of standing, that he was convicted under a fatally defective indictment, that the court erred in entering judgment and sentences for two offenses arising out of the same conduct or transaction, and that he was not proven guilty beyond a reasonable doubt.
The prosecution evidence indicated that on April 18, 1972, defendant walked into a pool hall and said that he had 19-20 "nickel" bags of marijuana to sell. Defendant and one Neely and one Macias then went to a storage room where defendant removed a plastic bag containing smaller bags from his crotch area. Neely asked defendant to stay and play pool. Defendant got some balls from Neely, took off his jacket and took the bag from his crotch area and placed it in a sleeve of the jacket, and played pool with one McCreary. Neely called the Wheaton police and spoke to Detective Leonard about defendant. Shortly thereafter Officer Matthews came to the pool hall. Matthews asked defendant to get his jacket and step outside to talk about some marijuana. Defendant told Matthews his jacket was in the washroom, so they both went there to get it. Matthews searched the washroom and did not find the jacket and again asked defendant to step outside.
Defendant then said that he wanted to use the bathroom and walked into the cubicle. Matthews grabbed defendant's left arm and defendant shoved Matthews away. Matthews then arrested defendant. Neely and another man named Doney then entered the washroom. Matthews tried to keep Doney in view. Defendant then returned to the cubicle, removed a clear plastic bag from his crotch area and flushed it down the toilet. Defendant blocked Matthews from retrieving this bag. The substance in the bag appeared to be marijuana.
Defendant then submitted to arrest and, when asked by Matthews where his jacket was, nodded toward the wall. Matthews asked which jacket it was. Neely pointed it out, and Matthews took it. At the police station defendant denied owning the jacket which was identified by others at trial as his jacket. A large plastic bag with nineteen smaller bags inside it was found in the jacket sleeve, each bag containing marijuana.
The defense evidence included a denial by defendant that he had any marijuana and a denial of a conversation about the sale of marijuana. McCreary, a defense witness, said defendant simply came up to him and asked him to play pool shortly after defendant came in. McCreary and defendant said that defendant and Doney went into the washroom together after defendant was arrested. McCreary stated that Neely went to the wall and got the jacket, which he gave to Officer Matthews.
There was also testimony that later in the afternoon, subsequent to defendant's arrest, some girls came to the pool hall and took defendant's jacket to defendant's house. At trial, defense witnesses identified this second jacket as belonging to defendant, based on a patch on the jacket which was not on the jacket seized by police.
Finally there was evidence that Macias and Neely, who were witnesses for the prosecution, could be biased. Macias had minor charges pending against him for which he expected leniency in return for his testimony. Neely was owed money by defendant and there was testimony that Neely would not testify against defendant if defendant paid back the money he owed.
The issues presented on appeal are:
I. Did the trial court err in denying defendant's motion to suppress evidence because of lack of standing?
II. Was defendant convicted under a fatally defective indictment?
III. Did the trial court err by entering judgment on both offenses and sentencing defendant to concurrent terms for two offenses which arose out of the same act, conduct, or transaction?
IV. Was defendant proven guilty beyond a reasonable doubt?
• 1, 2 I. It was held below that defendant had no standing to move to suppress the evidence against him because he denied owning the jacket in which the marijuana was found. It was held that absent a proprietary interest in the jacket, defendant could not raise the question of an invalid search and seizure. Under Jones v. United States, 362 U.S. 257, 4 L.Ed.2d 697, 87 S.Ct. 725, automatic standing to move to suppress is conferred upon a defendant where possession of the evidence seized is an element of the offense for which the defendant may be convicted. The continuing vitality of the Jones rule was indicated in Simmons v. United States, 390 U.S. 377, 19 L.Ed.2d 1247, 88 S.Ct. 967. In Brown v. United States, 411 U.S. 223, 36 L.Ed.2d 208, 93 S.Ct. 1565, the Supreme Court specifically refused to decide the continuing vitality of the Jones rule, in light of the fact that Simmons may have made it unnecessary. The Jones rule was restated in Illinois in 1966. (People v. DeFilippis, 34 Ill.2d 129.) DeFillipis also went beyond Jones and extended automatic standing to cases where possession merely formed the basis for a conviction, but was not an element of the offense charged. In People v. McNeil, 53 Ill.2d 187, DeFilippis was overruled ...