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People v. Johnson

OPINION FILED APRIL 10, 1986.

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

v.

STEVEN JOHNSON, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Winnebago County; the Hon. John E. Sype, Judge, presiding.

JUSTICE SCHNAKE DELIVERED THE OPINION OF THE COURT:

Defendant, Steven Johnson, was charged by indictment with unlawful possession, with intent to deliver, of more than 30 grams of a substance containing cocaine. (Ill. Rev. Stat. 1983, ch. 56 1/2, par. 1401(a)(2).) The first trial of this charge resulted in a mistrial when the jury was unable to agree on a verdict. Following a second jury trial, defendant was found guilty. Judgment of conviction was entered, and he was sentenced to a six-year term of imprisonment. Defendant appeals, contending (1) that evidence implying his involvement in prior drug transactions was improperly admitted, (2) that his motion for production of microfilm was erroneously denied where the State introduced into evidence enlargements of business records stored on the microfilm, and (3) that his motion for continuance was improperly denied.

Prior to the first trial defendant filed a motion in limine, alleging that the State's evidence would show that he was arrested on the date of the offense, March 1, 1984, after he picked up a package containing cocaine from a Federal Express office in Rockford. The motion sought to preclude the State from presenting evidence that, prior to March 1, 1984, defendant had received other packages at that office, the contents of which were unknown to the State. Defendant did not seek a hearing on his motion until the first day of the first trial, at which time it was granted in part and denied in part.

After the first trial ended without a verdict, the case was set for a second jury trial on Monday, March 18, 1985. On the Friday before the scheduled trial date, the State filed a motion for reconsideration of the order which had granted the motion in part. According to the State, at the first trial defendant testified that he picked up the package on March 1, 1984, at the request of an acquaintance who had told defendant he was traveling to Rockford by "hitching a ride with somebody" and that he was "cramped for space." Defendant testified that he expected the package to contain the personal effects of his acquaintance, and that he was surprised the package was not larger than it was. The State sought to prove that in each of the three months preceding his arrest, defendant received at the same Federal Express office a package of about the same weight from the same sender. On the first day of the second trial, the court granted the State's motion for reconsideration and denied defendant's motion in limine.

Following this ruling, defendant filed a motion for continuance, seeking additional time to prepare for the evidence involving the prior deliveries. The court denied that motion. Defendant also filed a motion for production of the microfilm on which the business records of the prior deliveries were stored. The court denied that motion as untimely, and the trial proceeded.

The State presented the testimony of five witnesses: John Borgan and Cindy Hulbert, employees of Federal Express; James O'Connor, a forensic chemist who analyzed the contraband seized by the police; and Roy Garcia and Jeffrey Trego, police officers involved in that seizure and the arrest of defendant.

John Borgan was the senior manager of the Rockford office of Federal Express. He testified that customers can pick up packages at the office instead of having them delivered. When a package is picked up by the customer, Federal Express has him sign a "hold for pickup manifest" acknowledging delivery. At the end of each business day, these documents are sent to corporate headquarters in Memphis, Tennessee, where they are held for 30 days by the tracing department. After 30 days the documents are microfilmed, and the originals are destroyed. Borgan stated that the microfilm is retained indefinitely.

Cindy Hulbert was a customer service agent at the Rockford office. She testified that on February 29, 1984, at about noon, defendant telephoned the Rockford office and asked if there was a package for him "holding for pickup." Hulbert determined that there was not, and she so informed him.

At about 8:20 a.m. on the following day defendant came into the office and asked if he had a package "holding at the station." Hulbert testified that there was a package for defendant, but that she had been instructed by the police to tell him there was not. She told defendant she would check to see if there was a package for him, and she went into the "hold room" and looked around. She found a package addressed to Ron Johnson, and she went back out to the front counter and asked defendant "if he could have possibly meant Ron Johnson" instead of Steven Johnson. Defendant asked whether the package addressed to Ron Johnson was from Denver. Hulbert then retrieved that package from the hold room and showed it to defendant, and he said that it was not his. Hulbert then told defendant that his package might be on a delivery truck, and that she would try to contact the driver later on to find out. She suggested that defendant call her after she had an opportunity to contact the driver. Defendant said he would and then left the office.

At about 9:30 or 10 a.m. defendant called Hulbert and asked whether she had talked to the driver, and she replied that she had, and that the package was on the truck. Defendant asked if he would be able to meet the driver, and he said he really needed the package. He told Hulbert that the address on the package was not the correct address for delivery because he had moved. Hulbert replied that that would not be a problem because the package could not be delivered unless it was signed for. She advised defendant that it would be brought back to the office. Defendant then asked if he could meet the driver somewhere on his route, and Hulbert replied that that would not be possible because Federal Express had a commitment to deliver the packages on the truck by 10:30 a.m. She suggested that defendant call back at noon to see if his package had been brought back to the office.

At about noon defendant did call back. Hulbert told him that the package had not yet been returned, and that she would call him as soon as it was available. Defendant gave her a phone number where she would be able to reach him.

Hulbert testified that at about 2 p.m. she called defendant and told him that his package had arrived. Defendant said that that was good, that he could go on with his daily business, and that he would be right over. About 15 or 20 minutes later he arrived. He said that he was glad his package was there, and Hulbert apologized for the inconvenience caused by the delay. She retrieved the package from the hold room and filled out a hold for pickup manifest. Defendant signed the manifest and Hulbert gave him the package. He asked Hulbert whether he could use the phone, and she told him he could not because all the lines were busy. Defendant then left the office.

Hulbert identified an air bill which had been attached to the package. The air bill indicated that the sender was Pro Lab located at 1200 West Miss in Denver, Colorado. The account number was listed as 802-0000-5. Hulbert said this number indicated that the sender did not charge the delivery to an account but paid cash in advance. The first three numbers were the same as the first three numbers of the sender's zip code. The air bill indicated that the package was received by Federal Express in Denver at 4:50 p.m. on February 29, 1984, and that it weighed between one and two pounds. The recipient's name and address were listed as Steven Johnson, 1903 North Church Street in Rockford. Hulbert also identified the hold for pickup manifest which she filled out and defendant signed when he picked up the package.

Hulbert also testified that on February 15, 1984, she waited on defendant when he came to the office and picked up a package. She identified a copy of the manifest that she filled out and defendant signed. The manifest listed the account number of the sender as 802-0000-5, and set forth the weight of the package as between one and two pounds. The ...


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