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People v. Birge





Appeal from the Circuit Court of McHenry County; the Hon. Leonard Brody, Judge, presiding.


Defendant, Jimmie L. Birge, was convicted in a bench trial of the Class 3 felony of unlawful possession of more than 500 grams of cannabis (Ill. Rev. Stat. 1981, ch. 56 1/2, par. 704(e)), and of the Class 2 felony of unlawful possession of the same substance and amount with an intent to deliver (Ill. Rev. Stat. 1981, ch. 56 1/2, par. 705(e)). He was sentenced to three years' imprisonment.

Defendant appeals, contending: (1) the court erred in denying him an evidentiary hearing under Franks v. Delaware (1978), 438 U.S. 154, 57 L.Ed.2d 667, 98 S.Ct. 2674; (2) the court erred in allowing a police officer to testify to defendant's oral statements which had not been disclosed in discovery; (3) the State failed to prove his guilt beyond a reasonable doubt; and (4) his sentence should be vacated because the court considered improper matters.

On May 19, 1982, police officers from several jurisdictions executed a search warrant at a residence at 237 Indian Trail, Lake in the Hills. The home was owned by defendant's mother and rented to Margaret Birge, defendant's former wife. Numerous guns, money and 22,650 grams (51 pounds) of cannabis were seized. The estimated street value of the cannabis was $450 per pound and $60,000 for the total amount. Margaret Birge was arrested and an arrest warrant for defendant was issued the next day. Defendant was arrested in November 1983.

The complaint for search warrant contained the sworn statement of police officer William Pedersen. After establishing the reliability of a police informant, the affidavit recited:

"On this date 19 May 1982 this informant stated to me that on 18 May 1982 he purchased one pound of marijuana from a M/W, known to him as James Birge. This informant described James Birge as a M/W, 5-8, ! & % [sic] lbs, and app 39 years old. This informant further stated that the marijuana he purchased was packaged in a clear plactic [sic] bag and the informant described the marijuana in the plastic bag as a green leaf substance. This informant further stated that he paid James Birge $450.00 U.S.C. for the marijuana. This informant then stated that he observed a large cardboard box which contained a quantity of simillar [sic] clear plastic bags, each containing a quantity of green crushed leaf. This informant further stated that he purchased the marijuana from James Birge and when he observed the card board box with the plastic bags of green crushed leaf he was in the house located at 237 Indian Trail, Lake in the Hills, Illinois. This informant then stated that when he left the house located at 237 Indian Trail, Lake in the Hills, Illinois, he used a portion of the marijuana he purchased from James Birge and received the same effect he has in the past whne [sic] he has used marijuana. This informant further stated that he has been a user of marijuana and controlled substances for the past five years. Because of the above informant I, William Pedersen, believe that there is still a quantity of marijuana in the possession of James Birge, located at 237 Indian Trail, Lake in the Hills, Illinois."

Before trial, defendant filed a motion to suppress the evidence seized in the search in which he sought an evidentiary hearing to test the truthfulness of the affidavit for search warrant. Attached to the motion were the affidavits of defendant, Margaret Birge (his former wife), Tommy and Jeanette Birge (his children), and Margaret Nozeka (defendant's former mother-in-law). All affiants stated that they were home either all or part of 18 May 1982, that they were not the confidential informant; that they did not see or speak with anyone other than family members; and that they saw no cardboard box containing green crushed leaf. Margaret Birge stated that she and the defendant went shopping for shrubs on 18 May 1982, and that defendant spent the rest of that day planting shrubs with his son. Defendant denied selling or possessing marijuana on May 18 or on any other occasion. The court denied the motion.

On the date set for trial, the State advised defendant it would use at trial certain oral statements defendant made to police officer Steven Schinkel, although the State had not disclosed the statements in discovery. The defendant sought exclusion of the testimony because the statements had not been contained in police reports furnished the defense, and because he had relied on the State's nondisclosure in preparing the defense. Defense counsel conceded he had reviewed the transcript of the preliminary hearing, at which Officer Schinkel had testified, and so was aware of the statements and not surprised regarding their existence. The court offered to continue the case, but defense counsel did not want a continuance. The court refused to bar the testimony, and the trial was continued to the next day for another reason.

At defendant's trial, police officers testified regarding the search of the residence at 237 Indian Trail on May 19, 1982. At that time Margaret Birge, her two children and the children's grandmother were the only persons there. Chief Kenneth Bartels of the Algonquin police department testified that police found and seized plastic bags, two scales, and numerous guns in a closet in the family room. A locked, chest-type freezer was found in an attached garage; it was forced open and police found numerous plastic bags containing cannabis. The police learned from Ms. Birge that defendant had been at the home the day before but had left on a trip. Bartels also testified they found a valid Illinois Firearms Owner's Identification Card in defendant's name and that such cards were typically mailed to an applicant's residence.

Detective John Corcoran of the organized crime division — narcotics section, of the Chicago police department testified that a search of the master bedroom of the home revealed a "male" and a "female" dresser or bureau. The male dresser contained men's clothes and jewelry, such as cuff links. The closet in that bedroom contained both men's and women's clothing.

Detective Corcoran had a conversation with Margaret Birge that day regarding the lock on the freezer, but no key was recovered, and the lock had to be forced open. The detective testified that in his opinion, because of the amount of cannabis found and the way in which it was packaged, mostly in one-pound bags, the cannabis was possessed for wholesale distribution and not personal consumption.

United States Currency in the amount of $2,850 was also seized at the home. Police Chief Bartels believed the money was found in the freezer, but he was not sure.

Police officer Gerald Hendricks testified that on November 22, 1983, he had a conversation with defendant while in custody, and defendant told him his address was 237 Indian Trail, Lake in the Hills. The officer also testified that he recalled defendant told him he had "been on the run for quite a long time," and that he had left the area when he learned an arrest warrant had been issued.

Found among defendant's personal property after his arrest was an Illinois driver's license with the address 237 Indian Trail. It was issued on April 7, 1981, and would expire on August 6, 1984. Defendant listed the same address on several documents he completed for the police after his arrest, but also found among defendant's personal property were his 1981 and 1983 Illinois fishing licenses, which bore other addresses. A real estate tax bill for the property located at 237 Indian Trail, which was listed in the names of Grover and Jean Summer, was also found in defendant's wallet. Two stamps on the bill indicated that taxes had been paid on May 13, 1983, and September 6, 1983. Jean Summer, defendant's mother, was the sole owner of the home when it was searched, as her husband had died.

Defendant also listed 237 Indian Trail as his address in various pleadings and court documents in the instant case. The affidavit of Margaret Birge submitted in support of defendant's motion to suppress recited that defendant lived at 237 Indian ...

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