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People v. Mertens





APPEAL from the Circuit Court of McHenry County; the Hon. ROLAND A. HERRMANN, Judge, presiding.


Defendants Gordon Mertens, Sr., his wife Marcella Mertens, and his sons Robert Mertens, and Gordon Mertens, Jr., appeal their convictions by a McHenry County jury of nine counts of theft.

On December 12, 1974, a search warrant was issued for the defendants' home located in Barrington Hills, Illinois. The warrant was executed that day and more than 400 items were seized as evidence. Two more warrants were issued and executed within the next three days and hundreds of other items were taken from the defendants' home.

Each defendant was subsequently charged in a nine-count indictment with nine separate offenses of theft. The defendants were not charged with the actual taking of the property in question, but with obtaining or exerting unauthorized control over property of the owner with the intent to deprive the owner permanently of the use or benefit of the property. (Ill. Rev. Stat. 1973, ch. 38, par. 16-1(a)(1).) The theory of the State was that all defendants were in possession of all the articles which were alleged to be stolen since they could not live together in their home with so many articles without all being part of a plan to possess stolen property.

Defendants filed a motion to quash the three search warrants. This motion alleged that the warrants were improperly issued as the affidavit in the first warrant did not supply probable cause for its issuance and that all three warrants did not set out a description of the items which were seized with sufficient particularity. After a hearing, on January 23, 1976, the warrants themselves were found to be proper. However, the court noted that it did not reach the question of whether in the execution of any of these warrants the police had exceeded their authority under the warrants. A second motion to suppress evidence was made more than a year later on April 11, 1977, the date set for trial. This motion was denied on the basis that the issues presented had already been determined in the January 23, 1976, proceeding. A third motion to suppress was filed on April 20, 1977, after the jury had been sworn but before any evidence had been presented. This motion, which was based solely on the scope of the searches, was denied as untimely.

The defendants also moved prior to the trial to compel compliance with the court's discovery orders. This motion was coupled with a request for a continuance of the impending trial date. On April 18, 1977, defense counsel again moved to stay the proceedings indicating that he was not ready for trial due to the failure of the State to comply with discovery. Also prior to trial defendants filed a motion seeking severance of the counts of the indictment as misjoined and of the defendants because of prejudice which would be caused to them by being tried together. This motion was denied.

At trial, police officers who were involved in the searches of defendants' home testified as to the details of those searches and the items taken. Other prosecution witnesses identified items seized in the searches as property stolen from them in burglaries. The items identified by the witnesses included the property listed in the indictment and many which were not. The latter were introduced by the State to show guilty knowledge and a limiting instruction to that effect was given.

The defendants testified in their own behalf. Each denied knowing that the articles were stolen. They claimed that they were avid collectors of old guns, silver, glassware, china, and other items. They further testified that many of the items were purchased at auctions. Defendant Mrs. Mertens claimed that she inherited some of the items from relatives. Some of the defendants claimed that the stolen goods were purchased from Jeffrey LaReno, a friend of the Mertens and the son of one of the State's witnesses. Gordon Mertens, Sr., claimed that at least some of the items had been planted in their home by the police.

A number of character witnesses testified on behalf of the defendants. Each testified as to the good reputation of the defendants for honesty and fair dealing. In rebuttal, the State presented witnesses who testified that defendants did not have a good reputation. These rebuttal witnesses, however, were not residents of Barrington Hills and were allowed to testify as to the general representation of the defendants in Lake Towers, Illinois, where they had lived some years earlier. Defendants also presented witnesses who testified that the defendants were collectors of the type of goods that were alleged to be stolen and that these kinds of goods had been in the defendants' home for a number of years.

The jury found each defendant guilty on each count. Gordon Mertens, Sr., was sentenced to three years probation; Marcella Mertens was sentenced to three years probation, with the first six months in the county jail; Robert Mertens and Gordon Mertens, Jr., were both sentenced to three to nine years in the penitentiary.

On appeal defendants assert that their guilt was not proved beyond a reasonable doubt, that evidence outside the indictment was improperly admitted, that the December 12, 1974, search warrant did not adequately particularize the items to be seized, that the searches of the defendants' home exceeded the authority of the warrants, that it was error to deny the motions to sever the counts and sever the trials of each defendant, that it was error for the trial court to deny a defense motion for a continuance, and that rebuttal testimony concerning the defendants' reputation was improperly admitted.


Defendants first argue that the evidence presented — while quantitatively large — was inadequate in quality and specificity to prove the offenses charged in the indictment. This argument is essentially a challenge to the State's basic theory that given the large number of stolen items commonly possessed in defendants' household, it would be impossible for defendant family members not to be aware that he or she was in possession of stolen property.

Defendants were charged with theft by possession under section 16-1(a)(1) of the Criminal Code of 1961, which provides that a person commits theft when he obtains or exerts unauthorized control over property of the owner, and intends to deprive the owner permanently of the use or benefit of the property. (Ill. Rev. Stat. 1973, ch. 38, par. 16-1(a)(1).) The phrase "obtains or exerts control" over property includes possession of property. Thus one may be in violation of the theft statute in question when he knowingly exerts unauthorized control through mere possession of property, intending to permanently deprive the owner of its use. (People v. Helm (1973), 10 Ill. App.3d 643, 295 N.E.2d 78, People v. Nunn (1965), 63 Ill. App.2d 465, 212 N.E.2d 342.) Therefore the key elements that the State was required to prove at trial were possession and requisite intent on the part of all defendants.

• 1-3 Defendants contend that possession by all defendants of all items was not shown. However, criminal possession can either be actual or constructive. (People v. Cogwell (1972), 8 Ill. App.3d 15, 288 N.E.2d 729; People v. Mack (1957), 12 Ill.2d 151, 145 N.E.2d 609.) A person is in constructive possession of contraband when such is in a place under his immediate and exclusive control. (Cogwell; People v. Bedford (1966), 78 Ill. App.2d 308, 223 N.E.2d 290.) Joint possession may still be considered to be exclusive possession (People v. Wheeler (1955), 5 Ill.2d 474, 126 N.E.2d 228), and where possession is joint, all in possession may be found guilty of theft (People v. Donald (1971), 132 Ill. App.2d 598, 270 N.E.2d 85). Thus in People v. Songer (1977), 48 Ill. App.3d 743, 362 N.E.2d 1127, the defendant was found to be in constructive possession of stolen property because he was found to be a co-tenant of the apartment in which the property was found. In the present case there was ample ...

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