People v. Fickes

• Decision Date: 04 May 2017
• Docket Number: NO. 5-14-0300,5-14-0300
• Citation: 79 N.E.3d 334,2017 IL App (5th) 140300
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Michael FICKES, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

2017 IL App (5th) 140300

79 N.E.3d 334

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.Michael FICKES, Defendant-Appellant.

NO. 5-14-0300

Appellate Court of Illinois, Fifth District.

Opinion Filed: May 4, 2017

Attorneys for Appellant: Michael J. Pelletier, State Appellate Defender, Ellen J. Curry, Deputy Defender, Alexander G. Muntges, Assistant Appellate Defender, Office of the State Appellate Defender, Fifth Judicial District, 909 Water Tower Circle, Mt. Vernon, IL 62864

Attorneys for Appellee: Hon. Joshua Morrison, State's Attorney, Fayette County Courthouse, 221 South 7th Street, Vandalia, IL 62471; Patrick Delfino, Director, David J. Robinson, Acting Deputy Director, Jennifer M. Bernhardt, Staff Attorney, Office of the State's Attorneys Appellate Prosecutor, 730 East Illinois Highway 15, Suite 2, P.O. Box 2249, Mt. Vernon, IL 62864

OPINION

PRESIDING JUSTICE MOORE delivered the judgment of the court, with opinion.

¶ 1 The defendant, Michael Fickes, appeals his conviction, following a trial by jury in the circuit court of Fayette County, for the offense of aggravated participation in methamphetamine manufacturing. For the following reasons, we affirm in part, reduce the defendant's aggravated participation in methamphetamine manufacturing conviction to simple participation in methamphetamine manufacturing, and remand for a new sentencing hearing on that conviction.

¶ 2 FACTS

¶ 3 The facts necessary to our disposition of this appeal follow. On February 24, 2014, the defendant proceeded to trial before a jury on the seven counts with which he was charged, which were as follows: (1) count I, participation in methamphetamine manufacturing (400 grams or more but less than 900 grams); (2) count II, unlawful possession of methamphetamine manufacturing materials; (3) count III, unlawful disposal of methamphetamine manufacturing waste; (4) count IV, aggravated participation in methamphetamine manufacturing (400 grams or more but less than 900 grams); (5) count V, aggravated participation in methamphetamine manufacturing (100 grams or more but less than 400 grams); (6) count VI, participation in methamphetamine manufacturing (100 grams or more but less than 400 grams); and (7) count VII, possession of a methamphetamine precursor. The aggravated participation charges stemmed from the allegation that the manufacturing in question took place "within 1,000 feet of a place of worship, St. James Lutheran Church."

¶ 4 At a pretrial conference in late January, the judge who was to conduct the trial, the Honorable S. Gene Schwarm, asked the parties "if there was anything that could be stipulated to, to avoid calling [certain witnesses] or decrease the testimony." Judge Schwarm noted that he asked because he was "thinking about an attempt to shorten up the trial" in light of snowy weather conditions that had occurred or were forecast. Although the parties discussed the possibility of certain stipulations with regard to witnesses, neither party raised the question of stipulating with regard to St. James Lutheran Church. Ultimately, the trial date was not changed.

¶ 5 At trial on February 24, 2014, Judge Schwarm admonished the potential jurors not to do any "independent research" on the case, explaining that the jurors would "hear from that witness stand what you need to make decisions in this case" and that he and the parties wanted the jury "to base your decisions on what you hear in this courtroom and not be influenced by anything outside the courtroom." Following voir dire , when the jury was sworn, he reminded the sitting jurors not to conduct independent research. During her opening statement, counsel for the State told the jury that she expected testimony from police officer Jerry Bowling that the alleged offenses occurred "approximately a hundred feet from a church."

¶ 6 The first witness to testify for the State was Jerry Bowling, a police officer with the city of Vandalia. He testified that on January 30, 2013, he was on duty and was attempting to serve an outstanding warrant on an individual not connected with this case at a nearby apartment building when he smelled a strong chemical odor that he suspected might be tied to methamphetamine manufacturing. Bowling was subsequently asked to "describe exactly" where this took place. He testified, "The address is 117 South Seventh Street. The St. James Lutheran Church out here on Gallatin, just south of that, behind that church 111 feet." When asked how he knew the distance, Bowling testified that he "measured it personally with a measuring wheel" used for traffic accidents, although he did not testify as to when he measured the distance. He testified that it was 111 feet from "the front door of the residence to the back door of the church." Bowling testified in detail about how the defendant became a suspect, what was discovered during a subsequent search of the premises, and other facts not relevant to the issue raised by the defendant in this appeal. On cross-examination, when asked to explain the layout of the premises, Bowling testified that the house where the methamphetamine manufacturing materials were found was "pretty much right behind the St. James Lutheran Church." He was then asked, "That is the one, pretty much, right behind the courthouse?" He testified, "Yes," then was asked, "So the church is there on this block, correct?" He again testified, "Yes." He was later asked, still on cross-examination, about methamphetamine manufacturing materials found outside of the house, in "a big open yard." He attempted to describe the yard in relation to other structures. He testified that "there is a house—or, it's the church and then the road." To clarify, he testified that the closest building to where the materials were found was "the church."

¶ 7 The next witness to testify for the State was Deputy Sheriff Larry Halleman. Before Halleman began his testimony, Judge Schwarm noted the proximity to the courthouse of the area where the alleged offense occurred and reminded the jurors, "you can't do any independent research. We want you to listen to the evidence and base your decision on the evidence. So don't drive over there until this trial is done, if you want to go look at the premises." Thereafter, Halleman testified that on January 30, 2013, he "was dispatched to assist the Vandalia Police Department with what they believed to be a meth manufacturing lab in Vandalia." When asked where he responded to, Halleman testified, "It was behind the church directly across from this building on Seventh Street." Like Bowling, Halleman testified in detail about how the defendant became a suspect, what was discovered during a subsequent search of the premises, and other facts not relevant to the issue raised by the defendant in this appeal. Following Halleman's testimony, the trial was recessed for the day.

¶ 8 On February 25, 2014, testimony resumed. Cheri Wright testified for the State that on January 30, 2013, she lived in Vandalia at the house where police discovered the methamphetamine manufacturing materials. She testified in detail about the events of that night but did not testify as to the location of the house in relation to any other building. She testified that ultimately she was arrested and pleaded guilty to unlawful possession of methamphetamine manufacturing materials. Two forensic scientists and a special agent for the State Police also testified for the State. However, none of them testified about the location of the house in relation to any other building. Following their testimony, the State rested. The defendant moved for the admission of certain documents, and documents were admitted that showed that witness Wright had pleaded guilty to unlawful possession of methamphetamine manufacturing materials, as she had testified. The defendant also moved for a directed verdict, contending, with regard to counts I, II, and III, that the State had failed to present sufficient evidence to prove that any of the methamphetamine manufacturing materials that were found at Wright's residence were connected to the defendant. Judge Schwarm denied the motion for counts I, II, and III. When asked if he had argument with regard to the remaining counts, counsel for the defendant stated that counts IV through VI were "pretty much, the same argument as Count I and Count II. So I would stand by that argument, but I think it goes along with do you believe—there was testimony the property was within a thousand feet of a place of worship, and that's really the only difference between Count I and Count II." Judge Schwarm responded, "I recall that too that I think it was Officer Bowling testified he actually measured with a measuring device and St. James Lutheran Church was 110 feet, or thereabouts." Judge Schwarm subsequently denied the motion for a directed verdict with regard to counts IV through VII as well.

¶ 9 The defendant testified on his own behalf. He denied ownership or possession of all of the methamphetamine manufacturing materials in question, with the exception of a bottle of drain cleaner, which he testified Wright gave him to use to unclog her toilet, and which he testified he did use to unclog her toilet. He denied participating in the manufacturing of methamphetamine. Counsel for the defendant specifically asked the defendant if the defendant had participated "in the manufacture of methamphetamine somewhere between more than 400 grams but less than 900 grams of a substance containing meth within a thousand feet of worship [sic ] from the St. James Lutheran Church here in Vandalia?" The defendant responded, "No." Counsel for the defendant then asked the defendant if the defendant had participated "in methamphetamine manufacturing which was more than 100 grams but less than 400 grams of a substance containing meth within a thousand feet of St. James Lutheran Church in Vandalia?" The defendant responded, "No." Following the defendant's testimony, the defense rested.

¶ 10 The...