The opinion of the court was delivered by: Presiding Justice O'mara Frossard
Appeal from the Circuit Court of Cook County Honorable Lawrence Fox and Preston L. Bowie, Judges Presiding.
Demetrice Hunley and Richard Townsend following a simultaneous jury trial were found guilty of possession of cannabis and cocaine with intent to deliver. Each defendant was sentenced to a 15-year prison term. Hunley argues: (1) the State failed to prove her guilty beyond a reasonable doubt; (2) the trial court erred in denying her motion to suppress evidence; (3) the trial court improperly admitted opinion testimony regarding obtaining fingerprints off plastic; (4) the trial court erred in permitting a police officer to testify about conversations with a citizen; and (5) the trial court erred in not admitting the transcript of a 911 audiotape into evidence and not giving the jury the 911 audiotape and transcript during their deliberations. Townsend only challenges the police testimony regarding fingerprints.
On October 2, 1996, at approximately 10:30 p.m., Officer Hasenfang, after receiving information from a person on the street, proceeded to the apartment building at 7315 South Peoria. Hasenfang looked through the window and saw defendants packaging narcotics. Hasenfang radioed this information to his fellow officers. Hasenfang testified that he heard some pounding coming from the front of the house and saw Hunley leave the kitchen. Hunley returned and told Townsend, "Shit, it's the police." Townsend and Hunley filled a child's school bag with drugs. Hasenfang acknowledged at trial that his police report only indicated that Townsend filled up the book bag. Hasenfang saw Townsend lean out the window and try to throw the book bag onto the roof of the building next door. The bag fell into the gangway. Officer O'Donnell was in the gangway, observed a person dropping an object out the window and recovered the object, a child's book bag containing a large quantity of cocaine and clear plastic bags. Hasenfang, with other officers, entered Hunley's apartment and from the kitchen area recovered cannabis, nine boxes of baggies, four boxes of baking soda, a coffee grinder, and a digital gram scale.
Officer Condreva testified that, after monitoring a radio transmission from Officer Hasenfang, Condreva knocked on the front door of the two-flat apartment building. Condreva saw Hunley look out a second-floor window and ask "[W]ho's there[?]" Condreva responded "[I]t's the police" and asked her to open the door. Hunley told him that she did not believe him, and Condreva showed Hunley his badge. Condreva told Hunley that he was from the Department of Children and Family Services (DCFS) and was checking on Hunley's children because he had a complaint about child abuse. Condreva admitted at trial that his testimony at the motion hearing that he did not tell Hunley he was from DCFS was inaccurate. After Condreva requested Hunley to open the door, Hunley told him that she was dialing 911 and calling the "real police." Condreva encouraged Hunley to call the police. A marked police car arrived, Hunley opened the front door to the apartment building, Condreva and the uniformed police officer entered and Hunley was arrested. In Hunley's apartment Condreva saw three young children and Townsend seated at the dining room table.
Hunley testified that on October 2, 1996, she arrived home around 8:30 p.m. and Jerome, David, Brian and Richard Townsend, together with her three children, were in her apartment. Jerome Townsend was her boyfriend and his nickname was "Doc." She denied seeing any narcotics or drug paraphernalia in the apartment that night or having any knowledge of any such contraband. Jerome, David and Brian Townsend left the apartment, but 17-year-old Richard Townsend stayed. Hunley stated that on October 2, 1996, her back porch window was covered with thick plastic and her back door window was covered with thick plastic, bars and blinds. Hunley explained that she kept the plastic on her windows year round to reduce her landlord's work during the wintertime and that an individual standing on the back porch could not see through the plastic.
At 11 p.m, Hunley heard knocking at her front door and a male at the front door told her to open the door because he was "Doc." After she told him that he was not "Doc," the male told her to let him in because he was "DCFS" and he had a complaint about child abuse. Hunley said she was calling the police. She heard knocking at the back door and a male voice say "This is Little Red Riding Hood. Open the damn door." Hunley tore some plastic off her back door window, lifted up the blinds, and saw Officer Hasenfang and another man on her porch. Hunley ran to the front and called 911. When Hunley saw uniformed police officers arrive, she went downstairs, opened the front door and the police arrested her. They took her up to her apartment and woke up her children and Richard Townsend. Hunley denied that any drugs were in her kitchen and denied that Richard Townsend tossed a book bag of drugs out the window. She testified that the police officers damaged her furnace and ceiling to reach the attic, where they recovered the drugs and drug paraphernalia that the State was presenting in the trial. Hunley denied knowledge of the contraband in her attic and stated that she never permitted anyone to place it there. Hunley's landlord testified that the furnace area allowed access to the attic. He inspected the furnace area within 48 hours after October 2, 1996, and saw recent damage to the furnace that he had not observed before October 2, 1996.
Hunley and the State stipulated to the authenticity and the foundation for the 911 tape. During Hunley's case in chief, the jury received a transcript of the tape while defense counsel played the 911 tape. The 911 tape confirmed that Hunley called the police. The tape revealed that Officer Condreva identified himself as "DCFS" and told Hunley that he had a complaint about her abusing her children. Hunley told the dispatcher that Condreva was showing his badge and saying that he is the police. Hunley told the dispatcher this individual initially identified himself as "Doc" and she would not come down until the police arrived.
A. Sufficiency of Evidence
Hunley argues the State failed to prove her guilty beyond a reasonable doubt because the State's evidence was unbelievable since Officer Hasenfang could not have seen Hunley and Townsend in her kitchen through the heavy plastic on her back window. Hunley further argues it is improbable that two people would bag cocaine in front of a window or that Hunley would call the police to her apartment if drugs and drug paraphernalia were in her apartment. The standard of review for a defendant's challenge to the sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. McLaurin, 184 Ill. 2d 58 (1998). This standard recognizes that because the trier of fact heard and saw the witnesses, the trier of fact has the responsibility to judge witness credibility and resolve conflicts in the evidence and inconsistencies in witness testimony. People v. Coleman, 301 Ill. App. 3d 37, 42 (1998). "A reviewing court may not override a determination on credibility unless those findings are unreasonable and not based on the evidence." People v. Diaz, 297 Ill. App. 3d 362, 369 (1998).
In this case, the jury resolved a credibility dispute. The police officers testified a person on the street directed them to Hunley's apartment. While standing on the back porch, Officer Hasenfang said he saw Hunley and Townsend package drugs and fill up a child's book bag with drugs. Hasenfang then observed Townsend toss the book bag out the window. Officer O'Donnell recovered a substantial amount of drugs from the book bag he saw tossed out the window of Hunley's apartment.
Hunley's testimony directly conflicted with the police testimony. Hunley testified that she and Townsend were not involved in any drug packaging and that she had no knowledge of the drugs in her apartment. Hunley's theory of defense was that she had no knowledge of the drugs and that the police planted the drugs. The jury could have reasonably rejected this theory in light of Hunley's contradictions regarding damage to her front door, and who was in her apartment as well as other inconsistencies in her testimony together with the conflicting police testimony. The jury is not required to accept Hunley's testimony, but is required to weigh her testimony as it weighs the testimony of the other witnesses. People v. Ellis, 269 Ill. App. 3d 784, 789 (1995).
The 911 tape corroborated the police testimony by indicating that Officer Condreva knocked on Hunley's door and attempted to get Hunley to open the door. Officer Condreva never objected to Hunley calling the police and, at one point, encouraged her to call them. Officer Condreva did identify himself as "DCFS" but he also showed Hunley his badge. Hunley also points to the plastic on the back window to discredit Hasenfang. While pictures of the back window from the outside show thick plastic on it, a picture taken from inside the apartment reveals light penetrating the window. There was conflicting evidence regarding the window coverings. Officer Hasenfang testified that he observed a light on in the kitchen, no back porch light, and no plastic on the kitchen window. Hunley acknowledged that there was no back porch light but testified the police broke it and indicated the windows were covered. Hunley's landlord could not recall whether the back porch light was damaged. Again, whether Hasenfang could see through the back window was a credibility question properly resolved by the jury as the trier of fact.
Officer O'Donnell further corroborated Hasenfang's testimony that Hunley and Townsend filled up a child's book bag with drugs and Townsend tossed the bag out the window. O'Donnell recovered the book bag after it was tossed out the window. It was within the province of the jury to weigh Hunley's theory against the police officer testimony and determine whether the police conspired to frame Hunley or Hunley committed the charged offenses. After reviewing the record, we find the outcome of defendant's trial rested squarely on the credibility of the witnesses and this court will not substitute its judgment for that of the jury on that issue. People v. Furby, 138 Ill. 2d 434, 455 (1990).
B. Motion to Suppress Evidence
Hunley challenges the denial of her fourth amendment motion to suppress evidence. We review the trial court's ruling under a manifestly erroneous standard because Hunley challenges the credibility of the police testimony and the legal conclusions of the trial court. People v. Wright, 183 Ill. 2d 16, 21 (1998). The reviewing court also is not limited to the evidence presented at the suppression hearing but may consider evidence presented at trial. People v. Sims, 167 Ill. 2d 483, 500 (1995). Hunley argues that the evidence the police recovered in her apartment should be suppressed as the result of an illegal search and seizure because the police had no authority to enter her back porch or her apartment.
Both the United States and Illinois Constitutions protect individuals against unreasonable searches and seizures. U.S. Const., amends. IV, XIV; Ill. Const. 1970, art. I, § 6; People v. Buss, 187 Ill. 2d 144, 204 (1999). The fourth amendment generally prohibits the police from entering a private residence without a warrant. People v. Foskey, 136 Ill. 2d 66, 74 (1990), citing Payton v. New York, 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371 (1980). The police, however, are not required to obtain a warrant to enter a home if exigent circumstances exist, and the State bears the burden to demonstrate that exigent circumstances authorized the warrantless entry by the police. People v. McNeal, 175 Ill. 2d 335, 344-45 (1997).
The trial court found that Hunley had no reasonable expectation of privacy in a common area of a multi-unit building and that Hasenfang's observations on the porch provided exigent circumstances for the police to enter Hunley's apartment. We first address whether defendant has any expectation of privacy in the backyard of her multi-unit building and on her open porch and whether the police violated this privacy interest. The fourth amendment protects "people, not places." Katz v. United States, 389 U.S. 347, 351, 19 L. Ed. 2d 576, 582, 88 S. Ct. 507, 511 (1967). In California v. Ciraolo, 476 U.S. 207, 211, 90 L. Ed. 2d 210, 215, 106 S. Ct. 1809, 1811 (1986), the Court adopted Justice Harlan's two-part test for determining whether a person possesses an expectation of privacy in a particular place. The person, first, must have exhibited an actual expectation of privacy in the place searched and, second, the subjective expectation of privacy must be recognized as reasonable by society. Katz, 389 U.S. at 361, 19 L. Ed. 2d at 587, 88 S. Ct. at 516 (Harlan, J. concurring).
Applying the Katz analysis, the Illinois Supreme Court has found that an individual resident of a multi-unit building does not have a fourth amendment privacy interest in a common area where members of the public are reasonably expected to enter. People v. Smith, 152 Ill. 2d 229, 245 (1992). If police deliberately avoid locked areas to enter alleged common areas, that conduct may violate a reasonable expectation of privacy. Smith, 152 Ill. 2d at 246. In Smith, the court concluded the entrance by police into a common hallway of a multi-unit building did not implicate a fourth ...