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People v. Olivas

OPINION FILED JUNE 23, 1976.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

AUGUSTINE OLIVAS, A/K/A AUGUSTIN OLIVOS, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. ROBERT E. CHERRY, Judge, presiding.

MR. JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT:

Rehearing denied September 15, 1976.

The defendant, Augustine Olivas, was charged by indictment with possession of a controlled substance (heroin) in violation of section 402(a) of the Controlled Substances Act. (Ill. Rev. Stat. 1973, ch. 56 1/2, par. 1402(a).) Subsequent to a jury trial, he was found guilty of the offense charged and sentenced to the Department of Corrections for a term of not less than 5 years nor more than 15 years. On appeal, the defendant seeks a reversal of his conviction on the bases that (1) his right to a fair trial was prejudicially denied as a result of the trial court's improper admission of evidence and argument relating to the issuance of a search warrant; (2) the trial court erred in admitting evidence of his other purported criminal activity; and (3) the State's closing argument was prejudicially improper in that the prosecutor not only insinuated improprieties on the part of defense counsel, but he also commented on facts that were not proven by the evidence.

A review of the record reveals that subsequent to a conversation on June 13, 1973, with an individual well known to them, Sergeant Richard McKelvey and Investigators Bernard Brown and James Hanrahan of the vice control division of the narcotics section of the Chicago police department conducted a 2-hour surveillance of the defendant's jewelry store located at 1039 West Belmont in Chicago, Illinois. During the course of this surveillance, these police officers observed a number of individuals, many of whom were personally known to them as a result of their official activities in the narcotics division, enter the store, engage in a conversation with the defendant, and then give money to the defendant in return for some unidentifiable item that the latter would hand each individual.

On the following day, these police officers procured a search warrant for the defendant's premises. They thereupon proceeded to the jewelry store and conducted another surveillance of the locale. At approximately 6 p.m., they entered the store, identified themselves initially to an employee standing behind a counter in the front part of the store and then to the defendant who was situated in the storeroom of the jewelry shop. The defendant was presented with the search warrant and subsequent to being afforded time to read said document, he informed the police officers that they could search the store. Sergeant McKelvey and Investigator Hanrahan commenced searching the premises and uncovered a brown paper bag located in a shelf area above a work bench in the storeroom. This bag contained two large tin foil packages of tan powder which, after a field test was conducted, was ascertained to be heroin. The defendant was then placed under arrest and, upon being advised of his constitutional rights, voluntarily remarked, "Oh, my God, if I ever get out of this, I will never sell dope again."

On November 21, 1973, the defendant was indicted by the grand jury for knowingly and unlawfully possessing a controlled substance in violation of section 402(a) of the Controlled Substances Act. (Ill. Rev. Stat. 1973, ch. 56 1/2, par. 1402(a).) Subsequent to entering a plea of not guilty to the offense charged, the defendant moved on October 31, 1974, to quash the search warrant and suppress the evidence on the basis that the affidavit of probable cause was insufficient. This motion was denied by the trial court on December 2, 1974, and the cause was set for trial on the next day.

After the jury was selected and both sides presented their respective opening statements, the State commenced its case-in-chief by eliciting testimony from Sergeant McKelvey and Investigator Brown regarding their involvement in the instant case. Besides recounting what transpired on the 13th and 14th of June, 1973, the police officers opined that the street value of the heroin seized from the defendant was between $750,000 to $1 million. Subsequent to the testimony of the above police officers, the State called Veronica Drantz, a chemist at the Chicago police department crime laboratory. She testified that the substance found on the day in question was heroin and that it weighed slightly more than 1.3 pounds.

Prior to the State resting its case, it sought to introduce into evidence various exhibits which comprised the tin foil packets, the heroin itself, and the search warrant and complaint for search warrant used by the instant police officers to investigate the defendant's premises. These latter two items of evidence prompted a colloquy between the trial court and the counsels for the State and the defendant concerning the admissibility of such exhibits. Such discussion resulted in the trial court admitting the search warrant into evidence, but precluding the submission of said documents to the jury for its deliberations.

Subsequent to defense counsel eliciting testimony from the landlord of the store which the defendant rented as well as the latter's other attorney, the defendant took the stand in his own behalf. He stated that on June 14, 1973, approximately at 1 p.m., a man named Salvadore left the brown bag containing the heroin with him. Moreover, he testified that Salvadore, who had left packages with him on two prior occasions, informed him that someone would call for the package. He further related that he never opened the bag nor was he cognizant of what heroin looked like since he never sold or possessed drugs.

Besides testifying as to the reason for the bag being present in the jewelry store, the defendant unequivocally denied making the remark to the police officers at the time of his arrest that if he ever got out of this, he would never sell dope again. Rather, he informed the police that if he would go clear and free, he would "never hall [sic] any package for nobody." However, on cross-examination, it was brought out that the defendant acknowledged making the prior statement at the preliminary hearing.

Upon the conclusion of the testimony of the defendant, two character witnesses who were called in his behalf, and the rebuttal witnesses proffered by the State, counsels for the State and the defendant presented their respective closing arguments and the trial court instructed the jury. After a short deliberation, the jury returned a verdict finding the defendant guilty of the offense charged. The trial court then entered a judgment on the verdict and placed the defendant in the custody of the sheriff of Cook County. On December 26, 1974, the defendant filed a motion for a new trial which the trial court denied on January 13, 1975. On that date, the trial court sentenced the defendant to a prison term of 5 to 15 years. The defendant filed a notice of appeal on February 11, 1975, with the clerk of the circuit court of Cook County seeking a reversal of his conviction.

We first consider the defendant's contention that the evidence and argument relating to the issuance of a search warrant was improperly admitted and prejudicially denied him the right to a fair trial. In support of such assertion, the defendant maintains that commencing with the State's opening statement to the jury and progressing to the respective testimony elicited from Sergeant McKelvey and Investigator Brown, the jury was improperly permitted to hear evidence and argument relating to the fact that the police officers had appeared before a circuit court judge who issued a search warrant authorizing the search of the defendant's jewelry store. The defendant argues that the obvious implication of such testimony to the jury was that the trial judge had made a prior determination that he had committed the offense for which he was charged. We are not in accord.

• 1 It has uniformly been held that evidence concerning acts which are closely and inextricably mixed up with the history of the guilty act itself as to form part of one chain of relevant circumstances is admissible. (United States v. Sebo, 101 F.2d 889, 891 (7th Cir. 1939).) Considering such tenet in light of the instant case, we believe that the various references throughout the trial to the issuance of a search warrant was so crucially intertwined with the police officers' surveillance of the premises as well as the defendant's arrest so as to form part of one chain of relevant circumstances. From our perusal of the record, we are convinced that the testimony elicited at trial concerning the issuance and execution of the search warrant solely demonstrated to the jury the formal procedure required of the law enforcement officials at bar before they could properly (1) engage in a lawful search of the defendant's jewelry store and (2) arrest the latter once they discovered the heroin in his premises. Moreover, the fact that the trial court granted defense counsel's motion to exclude the search warrant and the complaint for search warrant from jury deliberation and the State indicated in its closing argument to the jury that such documents were not really significant in their determination of the defendant's guilt or innocence further evinces the impropriety of the defendant's argument that he was prejudiced by the State's reference to the search warrant. Thus, based on the purpose underlying such evidence coupled with the respective conduct and closing comments of the trial court and counsel for the State, we believe that the controverted testimony and argument relating to the search warrant was not analogous to situations wherein a prosecutor either (1) renders a personal opinion as to whether or not the defendant committed an offense (People v. Mostafa, 5 Ill. App.3d 158, 164-65, 275 N.E.2d 846, 850) or (2) comments on what charges should be filed against defendant as well as defendant's failure to testify (People v. Blissitt, 12 Ill. App.3d 551, 554, 299 N.E.2d 562, 564) so as to warrant a reversal of his conviction.

We further do not subscribe to the defendant's assertion that the trial court erred in admitting evidence of other purported criminal activity. The stimulus for this basis of review centers on the fact that even though the defendant was charged and tried solely for the offense of possession of a controlled substance on June 14, 1973, the State was permitted over objection to introduce testimony to the jury inferring that the defendant was also guilty of the crime of selling a controlled substance on the previous day. To buttress such contention, the defendant cites the respective testimony elicited from Sergeant McKelvey and Investigator Brown that, during the surveillance of the defendant's jewelry store, they saw a number of individuals enter the store, engage in a conversation with the defendant, hand some money to him in return for some unidentifiable item. Moreover, the defendant contends that the prejudice attributable ...


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