Appeal from the Circuit Court of Du Page County; the Hon.
Robert Nolan, Judge, presiding.
JUSTICE SCHNAKE DELIVERED THE OPINION OF THE COURT:
Rehearing denied March 27, 1986.
On December 9, 1983, following a jury trial in the circuit court of Du Page County, defendant, Robert David, was found guilty of unlawful possession with the intent to deliver 200 grams or more of a substance containing a derivative of barbituric acid, and was sentenced to a term of 30 years' imprisonment. On appeal defendant raises 11 issues contesting his conviction and sentence.
At approximately 6:30 p.m. on October 21, 1980, Ann Shirley, her husband, Charles Shirley, and Gene Poston, were arrested in Pontiac, after selling 6,000 phenobarbital tablets to Agent William Willis of the Illinois Department of Law Enforcement. Shortly after her arrest, Ann Shirley spoke with Agent Willis and told him that she had been present with Charles when he had picked up the 6,000 tablets. Ann stated at 4 p.m. that afternoon she had accompanied Charles to a two-story, brick front house with an attached garage in Hinsdale. They parked in front of the garage, and she stayed in the car. Charles left the car, spoke with defendant in front of the garage, and then entered the garage with defendant. When the two men exited the garage Charles was carrying a garbage bag which he put in the trunk. She and Charles then drove to Pontiac, where they transferred the bag to Poston's car and drove to where the sale took place. Ann told Agent Willis that Charles had told her that the garbage bag contained the phenobarbital and that there were two similar bags in the garbage cans in the garbage. After speaking with Agent Willis, Ann drove with the agents to Hinsdale and pointed out defendant's house at 8950 South County Line Road as the place where Charles had obtained the phenobarbital.
Based upon the information obtained from Ann Shirley, Agent Willis obtained a search warrant for defendant's house and garage. The search warrant was executed in the early morning hours of October 22, 1980. After being read his Miranda rights and the search warrant, defendant led the agents to the garbage cans in the garage where the police found four more bottles of phenobarbital. After seizing the drugs, defendant was asked where the money was and defendant led the agents to a dresser drawer in a bedroom where the agents found $3,550. Defendant was later taken to the Du Page county jail where he told the police that part of the money belonged to Charles Shirley and part was his and that he wanted his part of the money back.
The trial against defendant began on December 13, 1982. During the morning court proceedings on December 16, 1982, Charles Shirley, who had earlier refused to testify under the fifth amendment, was granted immunity and ordered to testify. Shirley was to testify starting at 2 p.m. that afternoon. Defendant did not appear for the afternoon call that day and the case was continued to 2 p.m. the following day. Defendant also failed to appear on that day. The jury returned verdicts of guilty for possession (Ill. Rev. Stat. 1981, ch. 56 1/2, par. 1402(a)(5)) and possession with intent to deliver (Ill. Rev. Stat. 1981, ch. 56 1/2, par. 1401(a)(5)) 200 grams or more of a substance containing a derivative of barbituric acid. On February 9, 1983, the court sentenced defendant in absentia to a term of 30 years' imprisonment on count II and vacated the conviction on count I as a lesser included offense. On July 29, 1984, defendant appeared before the trial court and was advised of his right to appeal. A notice of appeal was filed on August 28, 1984.
• 1 Defendant's first argument is that the trial court erred in denying his motion for a hearing under Franks v. Delaware (1978), 438 U.S. 154, 57 L.Ed.2d 667, 98 S.Ct. 2674. In Franks the court stated:
"[W]e hold that, where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request.
There is, of course, a presumption of validity with respect to the affidavit supporting the search warrant. To mandate an evidentiary hearing, the challenger's attack must be more than conclusory and must be supported by more than a mere desire to cross examine. There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. They should point out specifically the portion of the warrant affidavit that is claimed to be false; and they should be accompanied by a statement of supporting reasons. Affidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained. Allegations of negligence or innocent mistake are insufficient. The deliberate falsity or reckless disregard whose impeachment is permitted today is only that of the affiant, not of any non-governmental informant." Franks v. Delaware (1978), 438 U.S. 154, 155-56, 171, 57 L.Ed.2d 667, 672, 682, 98 S.Ct. 2674, 2676, 2684.
Defendant contends he made the substantial preliminary showing required by Franks based upon the grand jury testimony of Ann Shirley, which was contrary to what Agent Willis indicated she told him in his complaint for the search warrant. In his complaint for the search warrant, Agent Willis stated:
"She [Ann Shirley] stated that she remained in the car in front of the garage and observed Charles Shirley and a male/white approximately 40 years old with a heavy build known as Bob alias Bill enter the garage which is attached to the house. She observed Bob alias Bill remove a garbage bag from one of the two silver colored garbage cans in the garage."
In her testimony before the grand jury, Ann Shirley allegedly testified:
"Question: So then you went up you saw him [Shirley] go up and talk to David?
Question: And what do you remember seeing happen then?
Answer: They talked for a while, and they went to the garage.
Question: Did you see what happened in the garage?
Answer: No. I didn't see them." (Emphasis added.)
Contrary to defendant's claim that he had submitted a sworn affidavit and the grand jury testimony of the informant, the record shows that he did neither. In this motion for the Franks hearing defendant set out what purported to be three questions and three answers from Ann Shirley's grand jury testimony. A certified transcript from that proceeding, however, was not presented to the trial court and has not been made a part of the record on appeal; nor did defendant's motion contain any sworn affidavit. As the trial court stated at the hearing on defendant's motion:
"I do not have the original transcript of the grand jury proceedings before me.
Not only do I perceive this to be procedurally objectionable, but in addition to that it also substantively is problem-making, because the Court is unable to make any direct connection between the testimony quoted in Paragraph 4 of the motion and what might be contained elsewhere insofar as the testimony before the grand jury is concerned."
Defendant's motion, therefore, was insufficient on its face because it failed to meet the Franks requirement that "[a]ffidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained." Franks v. Delaware (1978), 438 U.S. 154, 171, 57 L.Ed.2d 667, 682, 98 S.Ct. 2674, 2684.
• 2 Further, even if we were to consider defendant's uncertified and partial excerpt from Ann Shirley's grand jury testimony, we would find it insufficient to justify a Franks hearing. Under Franks, only the veracity of the affiant, and not that of the informant, may be challenged. Before the grand jury Shirley testified only that she did not see what occurred in the garage, and she did not testify as to what she did or did not tell Agent Willis. While one can infer from her testimony that "maybe Agent Willis just made that up" as defendant argued before the trial court, it is equally inferable that she changed her story between talking to Agent Willis and testifying before the grand jury. In light of the presumption of validity with respect to the affidavit supporting the search warrant (Franks v. Delaware (1978), 438 U.S. 154, 171, 57 L.Ed.2d 667, 682, 98 S.Ct. 2674, 2684), defendant's "maybe" is not the substantial preliminary showing required by Franks. Rather, under the facts of this case, where the identity of the informant was known to defendant, he was required to present direct evidence that the known informant did not make the alleged statement to Agent Willis, and not simply that the alleged statement was not true.
Defendant did attempt to explain his failure to produce such an affidavit at the July 1, 1982, hearing, stating:
"Initially, Judge, with the absence of documents * * *.
* * * this is a witness who the State indicated the last time that this case was up in court that they were having difficulty in finding.
So, as far as getting an affidavit from that witness, who was previously a State witness, who they indicated they were having problems in finding, I believe that accounts for the absence of her affidavit."
We find defendant's explanation insufficient for two reasons. First, at the prior hearing on April 29, 1982, the State merely requested a later court date, preferably in July, because it was feared that there might be difficulty locating its witnesses because of the type of case, the length of time the case had been pending, and the fact that many of their witnesses were now located all over the United States. The State did not say that it was having trouble locating witnesses, but only that it feared it might, nor did the State say that Ann Shirley was one of these witnesses. The State did, in fact, locate Shirley when it attempted to, as shown by the fact that she testified at trial. Second, even if the State had had difficulty locating Shirley in April of 1982, this would not excuse defendant from using his own reasonable efforts to locate her in July of 1982.
• 3 Lastly, we note that defendant argues on appeal that the trial court also should have granted him a Franks hearing because of certain alleged omissions in the complaint for the search warrant and because of Shirley's testimony at trial that she did not tell Agent Willis that the man's name was either Bob or Bill. Defendant, however, did not make an offer of proof on either of these matters in his motion as required by Franks v. Delaware (1978), 438 U.S. 154, 171, 57 L.Ed.2d 667, 682, 98 S.Ct. 2674, 2684, and, therefore, has waived these arguments.
• 4 Defendant's second argument is that the trial court erred in admitting evidence obtained by the search warrant because the warrant was not supported by probable cause. Defendant also argues that under Illinois v. Gates (1983), 462 U.S. 213, 76 L.Ed.2d 527, 103 S.Ct. 2317, we must apply a three-prong test in determining whether the ...