People v. Alicea

• Decision Date: 10 December 2013
• Docket Number: Docket No. 1–11–2602.
• Citation: 376 Ill.Dec. 509,2013 IL App (1st) 112602,999 N.E.2d 392
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Jesus ALICEA, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

2013 IL App (1st) 112602
999 N.E.2d 392
376 Ill.Dec. 509

The PEOPLE of the State of Illinois, Plaintiff–Appellee,
v.
Jesus ALICEA, Defendant–Appellant.

Docket No. 1–11–2602.

Appellate Court of Illinois, First District, Third Division.

Oct. 30, 2013
Rehearing Denied Dec. 10, 2013

Reversed; fines and fees order vacated.

[999 N.E.2d 393]

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.

OPINION
Justice MASON delivered the judgment of the court, with 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.¹

¶ 3 A warrant issued, and a search was conducted about an hour later by a Chicago police department tactical team. At

[999 N.E.2d 394]

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 from rounds 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 at the apartment being searched, and the envelope showed a delivery date of June 1, 2010, the day before the search took place. The officers did not see any children's toys, clothes, or other items in the front bedroom.

¶ 7 The officers then searched the rear bedroom, where they observed various baby items, including toys, bottles and diapers. When asked if there was a bed in that bedroom, Officer Varchetto testified, “Not a big bed, no.” A photograph of the back bedroom taken after the search warrant was executed shows a portion of a box spring leaning up against a wall. It is not possible to see in the photo if there is a mattress behind the box spring. The officers did not recover any guns, ammunition, currency or other contraband from the rear bedroom.

¶ 8 Photographs of the apartment taken in what appear to be the living and dining rooms show a large amount of children's equipment and toys. They also show a filing cabinet, two computer desks, and another dresser. No evidence regarding the contents of the filing cabinet or dresser or items on the computer desks were introduced at trial. The only item of mail addressed to Alicea at the Knox address introduced into evidence was the United States Treasury check found in the front bedroom.

¶ 9 Sergeant Eric Winstrom and Officer Varchetto then spoke with Blanchard, who told them that he was there with his child “to visit * * * the child's grandfather.” He explained that he was recently released from jail and was staying at the apartment

[999 N.E.2d 395]

for a few days until he found another place to live. Sergeant Winstrom asked Blanchard if he knew where Alicea was or if he had his contact information. Blanchard gave the officer Alicea's cell phone number. The officer called the number, spoke to someone who identified himself as Alicea, and told him that he was going to be arrested and should turn himself in. The speaker agreed to do so the next day. Alicea, however, did not turn himself in, and an investigative alert was issued for his arrest.

¶ 10 For the next two days, Officers Varchetto and DeMarco conducted a surveillance of the apartment. On both days, they observed several people remove various personal items and furniture from the apartment and load them into a moving truck.

¶ 11 On July 21, 2010, Officers Varchetto and DeMarco observed Alicea in the vicinity of the 1300 block of Kostner, which is not in the same neighborhood as the Knox apartment. Upon noticing the officers, Alicea fled in a vehicle bearing stolen temporary license plates. He then abandoned the vehicle and fled on foot. The officers apprehended Alicea shortly thereafter and placed him under arrest.

¶ 12 The State entered a certified copy of Alicea's driver's license abstract, which listed his address as 3036 North Knox. The abstract also reflected that a license listing 3036 North Knox as the address for Alicea had been issued on April 2, 2010, two months prior to the execution of the search warrant. The parties then stipulated to Alicea's prior felony conviction, the State rested, and the court denied Alicea's motion for a directed finding.

¶ 13 The defense called Alicea's daughter, Anais Alicea, who testified that she moved into 3036 North Knox with her father in 2007. She related that Alicea worked as a mechanic and that they were in business together, buying, fixing, and selling used cars that they kept on the street near the apartment. She testified that she slept in the rear bedroom and that her two-year-old daughter lived with her, but, on the advice of counsel, she refused to answer a question as to which bedroom Blanchard slept in on the grounds that it could incriminate her.² She further testified that her brother Michael moved into the apartment in January 2009, and Blanchard moved into the apartment in June 2009. On the day the apartment was searched, she, her daughter, and her two brothers were living at the apartment. She was not home at that time, but “got there right after,” and learned that the apartment had been searched when she “drove over there” and saw the police outside.

¶ 14 Anais testified that her father moved from 3036 North Knox to his fiancée's home in January 2010, but that his mail still came to the apartment. When his monthly check from the Veteran's Administration arrived, she would take it to him for his signature and deposit it. On the day of the search, she had called Alicea to tell him...