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04/04/89 the People of the State of v. Jose Rivera

April 4, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

JOSE RIVERA, DEFENDANT-APPELLANT



Before trial, the defendant filed a motion in limine as to rent receipts and the search warrant. Over objection, the Judge ruled that the State would be allowed to introduce evidence that the police had a search warrant legally authorizing them to search the premises of the rear house and the defendant, but he granted the request that the defendant not be referred to as "Lefty" in the presence of the jury. The State did not offer the rent receipts at the trial.

APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

537 N.E.2d 924, 182 Ill. App. 3d 33, 130 Ill. Dec. 595 1989.IL.477

Appeal from the Circuit Court of Cook County; the Hon. James M. Schreier, Judge, presiding.

APPELLATE Judges:

JUSTICE EGAN* delivered the opinion of the court. BILANDIC, P.J., and HARTMAN, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE EGAN

The defendant was found guilty by a jury of two counts of possession of a controlled substance with intent to deliver and sentenced to concurrent terms of nine years and six months on one count and seven years on the other. He contends that various errors in the admission of evidence require a new trial.

On April 8, 1986, at approximately 1 p.m., eight Chicago police officers executed a search warrant authorizing the search of the premises at 747 North Throop Street, rear house, Chicago, Illinois. The officers, under the direction of Sergeant James McGovern, arrived at a gangway near the alley running along the rear yard of the residence and set up surveillance. They were waiting for someone to be let into the residence because of the physical layout, which included a 10-foot wall running along the alley bordering the rear house. A short while later, Tony Nieves approached the door in the wall, and the defendant let him in. Nieves entered quickly, and the door slammed shut. Officer Robert Kocan shouted "Stop, police." He and Officer Higgins attempted to jar the door open with their shoulders. When this attempt, as well as a subsequent blow with a sledge hammer, proved ineffective, Higgins was boosted to the top of the wall, where he found a two-by-four with nails protruding. Higgins testified that while he was on the wall, the defendant came out of the rear building, threw an ashtray at him and went back into the building.

Once Higgins was over the wall, he let the other officers in through the door in the wall. The officers proceeded to the only door to the single-level brick building located in the rear of the yard. When their orders to open the door were met with no response, the officers knocked the door open with the sledge hammer.

Kocan, first through the door with Higgins, saw the defendant, his younger brother and Tony Nieves in the kitchen. The defendant was standing near the sink, and a triple-beam scale was on the top of the kitchen table.

Sergeant McGovern searched the defendant and recovered three pieces of identification: a voter's registration card in the defendant's name listing his residence as 747 North Throop; a traffic ticket with the same address; and a bond slip dated February 5, 1986, for a battery offense which also listed the defendant's address to be 747 North Throop.

Kocan recovered a camera case from the top of a portable television on the dresser in the rear bedroom. The case contained 11 clear plastic bags of suspected narcotics and $1,135.

Officer Schulz recovered a large, clear plastic bag of suspected cocaine from the bottom shelf of the medicine cabinet in the bathroom. Also discovered were three loaded pistols, a grinder used to cut cocaine and plastic bags used to package narcotics. The defendant, his brother and Tony Nieves remained in the kitchen during the search. Kocan testified that the defendant's two-year-old son was also present.

It was stipulated that a forensic chemist performed tests on the substances recovered during the search and that the tests revealed 516 grams of cocaine and 7.04 grams of phencyclidine, a controlled substance, more commonly referred to as PCP.

The defendant also argued against the admission of two bond slips: one for the underlying offense for which he was to be tried and one for the unrelated battery that was recovered from the defendant during the search. The trial court ruled that the bond slip for the battery offense listing the defendant's address as 747 North Throop and dated February 5, 1986, could be introduced. The defendant and State stipulated that he gave the address 747 North Throop on the bond slip for the underlying offense so that the jury would not see that he posted $4,500 for bail.

The defendant first contends that the Judge committed reversible error when he permitted the bond slip for the unrelated battery to be admitted into evidence in light of the other evidence available listing his address as 747 North Throop.

The State responds that the Judge properly allowed the bond slip to be introduced to show a material fact -- that the defendant had previously admitted that 747 North Throop was his residence address -- and that any prejudicial effect that might have been caused by the bond slip's introduction was prevented when the Judge ordered that the word "battery" on the bond slip be changed to "misdemeanor."

Whether to permit evidence from which a jury could infer that a defendant had been guilty of other criminal conduct is within the discretion of the court, assuming that the evidence tends to establish any fact material to the prosecution, e.g., identity, motive, general scheme or plan. One of the principal material facts in this case was the residence of the defendant. In that regard, the bond slip was probative to "identify" the defendant as a resident of 747 North Throop. But so also were the traffic ticket and the voter registration card, which established precisely the same thing: that he held himself out to be a resident of 747 North Throop. The bond slip for the underlying offense was also offered for that purpose. In addition, the State had ready, and did use, other evidence which we will discuss later: testimony of Officer Kocan that the defendant told him his address was 747 North Throop and records of Illinois Bell Telephone Company (Illinois Bell) establishing the same thing, but in more detail.

The trial Judge recognized that the evidence might be cumulative, and he also recognized that ...


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