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People v. Stewart





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


Defendant, James Stewart, was charged by information with possessing more than 30 grams of cannabis sativa. (Ill. Rev. Stat. 1977, ch. 56 1/2, par. 704(d).) Testimony admitted over defendant's objections at the bench trial indicated Stewart, without any official recitation of his rights, told a police officer during the booking process that his residence was located at the address where he was arrested and where the cannabis was found. The trial court found Stewart guilty as charged and sentenced him to a period of 18 months' probation.

On appeal Stewart asks this court to consider (1)(a) whether the trial court erred by admitting evidence of defendant's oral statement when he was not advised of his rights under Miranda v. Arizona (1966), 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602; (b) whether the court erred by admitting that evidence when the State failed, in its discovery answer, to disclose its intention to use the statement; (2) whether the court erred by admitting evidence of defendant's delivery of marijuana prior to his arrest for possession; and (3) whether the State failed to prove defendant guilty beyond a reasonable doubt.

On April 11, 1978, at 12:40 a.m., Stewart was arrested at 2714 West Lexington Avenue, Chicago, and charged with possession of marijuana. At trial the State proffered the testimony of one witness, the arresting officer, Investigator Greg Zito. Zito testified as follows. Shortly prior to Stewart's arrest, Zito observed defendant hand two manila envelopes to a police informant in the doorway of 2714 West Lexington Avenue. The defendant reentered the apartment after the delivery. Zito then examined the contents of the envelopes and concluded the material therein was marijuana.

Zito, with a partner, then approached the doorway in which defendant had made the exchange. He knocked on the door and identified himself as a police officer. When he heard no response, he opened the door and the two investigators entered a hallway of the residence. Zito saw seven manila envelopes protruding from a displaced wall tile. These envelopes were similar to the two he had obtained from the informant.

While the investigators withdrew the envelopes from the wall, Stewart stood up from a couch in the living room and approached Zito. Stewart was then arrested. Zito entered the living room which was occupied by two other men and saw 22 or 23 additional manila envelopes on a table in front of the couch. These envelopes were confiscated and at trial the parties stipulated their aggregate contents to be in excess of 30 grams of marijuana. A search of the residence revealed three young children sleeping in one of the bedrooms off the kitchen.

After Stewart's arrest, at approximately 2 a.m., Zito and Stewart were in a second floor office of the 14th district police station. Zito, seated before a typewriter, asked defendant for his name, address, identification, and gun registration card. Over defendant's objection Zito testified that Stewart gave his name and then gave his address as 2714 West Lexington. Zito asked Stewart why his State firearms card indicated his address as 11422 South Yale, Chicago. According to Zito, defendant stated he "did not live there any more."

On the morning of April 12, 1978, Stewart signed an "I-bond" *fn1 which also listed his address as 2714 West Lexington Avenue.

Stewart was the only defense witness to testify. He stated that he lived with his parents at 11422 South Yale and that he told Zito he lived there. He stated he never lived at the location of his arrest. Moreover, he introduced into evidence his firearms identification card, his Illinois driver's license, his automobile registration, and an Internal Revenue notice dated December 4, 1978, all of which indicated his residence to be at his parent's home.

Defendant explained he signed his "I-bond" slip, which listed 2714 West Lexington as his address, because he was told by the clerk who filled it out that "to get an I-bond you sign here and you are being released." He claimed he did not read the slip.

After reviewing the testimony and arguments of counsel, the trial court found Stewart guilty of constructive possession of more than 30 grams of marijuana.



• 1 It is well established that to support a conviction of unlawful possession of drugs, the State must prove the accused had knowledge of the presence of the substance and that the substance was in his immediate possession and control. (People v. Galloway (1963), 28 Ill.2d 355, 358, 192 N.E.2d 370.) Possession may be actual, or it may be constructive (People v. Mack (1957), 12 Ill.2d 151, 162, 145 N.E.2d 609), as where drugs are found on premises occupied by or under the control of a defendant ...

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