Court of Appeals of Illinois, First District, Third Division
Rehearing denied December 10, 2013
Defendant’s conviction for unlawful possession of a weapon by a felonwas reversed and the related fines and fees were vacated on the groundthat the State failed to establish beyond a reasonable doubt that defendantwas in constructive possession of the weapons and ammunition found inthe bedroom of an apartment, since there was evidence that defendant’sdaughter, two sons, and a grandchild resided in the apartment, butevidence that defendant lived there was lacking.
Appeal from the Circuit Court of Cook County, No. 10-CR-15160; theHon. Catherine M. Haberkorn, Judge, presiding.
Michael J. Pelletier, Alan D. Goldberg, Scott F. Main, and Melinda Grace Palacio, all of State Appellate Defender's Office, of Chicago, for appellant.
Anita M. Alvarez, State's Attorney, of Chicago (Alan J. Spellberg, Margaret M. Smith, and Sonia A. Antolec, Assistant State's Attorneys, of counsel), for the People.
Presiding Justice Hyman and Justice Palmer concurred in the judgment and opinion.
¶ 1 Following a bench trial, defendant Jesus Alicea was found guilty of two counts of unlawful possession of a weapon by a felon and sentenced to concurrent terms of five years' imprisonment. On appeal, Alicea challenges the sufficiency of the evidence to sustain his convictions and the propriety of two fees imposed by the circuit court.
¶ 2 The evidence adduced at trial showed that on June 2, 2010, Chicago police officer Anthony Varchetto and a confidential informant appeared before a circuit court judge requesting a search warrant for the first-floor apartment at 3036 North Knox Avenue. Officer Varchetto alleged that the informant told him that on June 1, 2010, he purchased two bags of heroin from a man known as "Choco" inside the apartment, and there observed a large amount of heroin inside a can in the pantry. The informant had purchased heroin from Choco for two years and had been inside the apartment over 50 times. He described Choco as a black Hispanic male, approximately 5 feet 8 inches tall, weighing 140 pounds, and 45 years of age.
¶ 3 A warrant issued, and a search was conducted about an hour later by a Chicago police department tactical team. At approximately 11:20 p.m., the officers knocked on the apartment door and announced their office, and when they received no response, made a forced entry. The apartment had a living room, dining room, kitchen, and two bedrooms, one of which was in the front of the apartment, and the other in the rear. Multiple photographs of these rooms, depicting their condition and contents, were taken after the search and entered into evidence by the State at trial.
¶ 4 As the officers entered, two pit bull terriers approached aggressively. Christopher Blanchard, who appeared to be in his early twenties and who later identified himself as Alicea's son, walked out of the rear bedroom with a young child. The officers directed him to control the dogs, and he took them out to the back porch. An officer then patted him down, but did not recover any contraband from his person.
¶ 5 Officer Anthony Jannotta searched the kitchen pantry and recovered several plastic bags containing suspected narcotics, two electronic scales, and a mixer. The narcotics were inventoried according to proper procedure, and the parties stipulated that multiple bags contained substances that tested positive for cocaine and heroin.
¶ 6 Officer Jeff Salvetti testified that he and Officer Erick Seng searched the front bedroom and observed a mattress, an armoire and a small dresser. They recovered a .44 Magnum handgun containing six live rounds from under the mattress. Officer Seng left the bedroom to clear the weapon, and other officers came in to assist with the search. In the armoire and underneath men's clothing, Officer Salvetti recovered two 9-millimeter handguns, which were loaded with seven and five live rounds, respectively. Officer Miehle found a bag containing various calibers of ammunition on a shelf in the armoire. Officer DeMarco discovered $635 in currency in the small dresser, and Officer Valentin found $790 in the closet. Officer Varchetto then found an envelope containing a United States Treasury check inside the small dresser. The check was addressed to Alicea ...