People v. Gorosteata

• Decision Date: 15 June 2007
• Docket Number: No. 1-04-2469.,1-04-2469.
• Citation: People v. Gorosteata, 870 N.E.2d 936, 374 Ill.App.3d 203 (Ill. App. 2007)
• Parties: The PEOPLE of the STATE of Illinois, Plaintiff-Appellee, v. Jorge GOROSTEATA, Defendant-Appellant.
• Court: Appellate Court of Illinois

870 N.E.2d 936

The PEOPLE of the STATE of Illinois, Plaintiff-Appellee, v. Jorge GOROSTEATA, Defendant-Appellant.

No. 1-04-2469.

Appellate Court of Illinois, First District, Sixth Division.

June 15, 2007.

Michael J. Pelletier, Deputy Defender, Christopher M. Smith, Assistant Appellate Defender, Office of the State Appellate Defender, Chicago, for Appellant.

Richard A. Devine, State's Attorney, James E. Fitzgerald, Jon J. Walters, Ramon A. Moore, Assistant State's Attorneys, Cook County State's Attorney's Office, Chicago, for Appellee.

Justice JOSEPH GORDON delivered the opinion of the court:

Defendant, Jorge Gorosteata, appeals after a jury trial from his convictions of possession of cannabis with intent to deliver and possession of a controlled substance with intent to deliver. On appeal, he contends that the circuit court erred when it denied his motion for a hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978); permitted the State to make improper closing argument; imposed inapplicable fines and fees in his sentence; ordered the extraction and storage of his DNA; and identified the wrong offenses of conviction in his mittimus. For the following reasons, we affirm in part, reverse in part, and correct the mittimus.¹

FACTUAL BACKGROUND

On June 25, 2003, Chicago police officer Richard Sanchez made a complaint to the circuit court for the issuance of a search warrant. In the complaint, Sanchez averred:

"I had the occasion to have a conversation with a concerned citizen who will be known for the purpose of this search warrant as John Doe. During the course of this conversation John Doe stated the following facts to me.

John Doe stated that on the evening of 24-June-03 John Doe went to the location of 4849 So. Honore St. and knocked on the front door that leads to the second floor apartment at this location. At this time, the door was opened by a M/WH [male, white Hispanic] subject know to John Doe as Gordo. John Doe describes Gordo as a M/WH 35 yoa [years of age] 6'0" 250 lbs. short black hair medium complexion and a mustache. John Doe was admitted entry to this 2nd floor apartment by Gordo. Once inside of this apartment, John Doe states that John Doe observed Gordo remove (3) large green plant brick shaped objects wrapped in clear plastic wrap from a brown cardboard box and place these items on the kitchen table. John Doe states that Gordo then unwrapped one of these bricks of green plant substance and removed a large chunk. While inside of this location John Doe had the occasion to ingest (smoke) some of the green plant substance that Gordo removed from the unwrapped brick of green plant substance. John Doe states that after ingesting this substance John Doe experienced the same sensation as in the past when smoking marijuana (cannabis). John doe [sic] states that John Doe has smoked marijuana for over (5) years and could distinguish marijuana (cannabis) from a similar substance. John Doe states that John Doe has purchased marijuana in the past from Gordo, and that Gordo sells multiple pounds of marijuana at a time. While inside of this location John Doe states that Gordo offered to sell John Doe marijuana for $600.00 a pound. John Doe estimates that when John Doe left this location ion 24-June-03, Gordo possessed inside of 4849 So. Honore 2nd floor apt. Chicago, Ill. Cook County at least 30 pounds of marijuana. John Doe also states that Gordo resides at this same location of 4849 So. Honore Chicago, Ill. 2nd floor apartment and that this is the only apartment located on the second floor at this location."

The parties do not dispute that John Doe accompanied Officer Sanchez when he presented the complaint to the circuit court and testified to the statements in the complaint before the court.

The circuit court approved a search warrant for the second-floor apartment at 4849 S. Honore, and a team of police executed the warrant on June 26, 2003. In a small, back bedroom in the apartment, police recovered two gray duffel bags containing clear plastic bags containing a crushed green plant. Later, in the course of the search, police also recovered bottles of inositol, an agent used to dilute cocaine, as well as three bags of "rock like" white powder. Testing revealed the crushed green plant to be marijuana, weighing 51,635 grams, and the white powder to be cocaine, weighing 90 grams. Defendant was charged with one count of possession of cannabis with intent to deliver and one count of possession of a controlled substance with intent to deliver.

Prior to trial, defendant challenged the search warrant, filing a "Motion for a `Franks' Hearing in Order to Quash the Search Warrant and Suppress Evidence Illegally Seized." In that motion, defendant denied John Doe's account of the events alleged to have occurred on June 24 and asserted that Officer Sanchez relied on Doe's account in reckless disregard of the truth. In support of his motion, defendant attached a number of affidavits, including his own, plus that of Carmen Guzman, and those of Massiel and Dulce Gorosteata. In his own affidavit, defendant repeated his blanket denial of Doe's allegations, and asserted that he actually resided at 4612 S. Talman.

In her affidavit, Carmen Guzman swore that defendant, with whom she had a child, picked them up at 4612 S. Talman around 10 a.m. on the morning of June 24, 2003. The three of them proceeded to the second-floor apartment at 4849 S. Honore, arriving at approximately 10:15. At 10:30, Carmen and two other women, Massiel and Dulce, left to grocery shop for dinner, including ingredients for a cake. Carmen left defendant in charge of the children in the apartment. By 12:30, Carmen, Massiel, and Dulce returned to the apartment and found defendant playing with the children, as well as watching television, with his uncle, Fructuoso. From that point on, defendant remained in the apartment with his family; no other person came to the apartment to be shown, or to smoke, marijuana.

Dulce Goroteata swore that she was defendant's sister and that she was present in the second-floor apartment at 4849 S. Honore on June 24, 2003, along with other family members, from 12:30 p.m. onward, preparing dinner. She averred that defendant did not invite any person into the apartment to show or smoke marijuana.

Massiel Gorosteata averred in her affidavit that she was defendant's sister-in-law. As of June 24, 2003, she resided in the second-floor of 4849 S. Honore. Massiel confirmed that defendant, Carmen, and their daughter arrived at the second floor apartment around 10:15 on June 24. Massiel, likewise, corroborated that she, Carmen, and Dulce left the apartment around 10:30 and did not return until 12:30. Like the other affiants, she denied that defendant met with any person, while she was present at the apartment, to show marijuana.

Nearly three months later, defendant filed supplemental affidavits from the same affiants in support of his Franks motion. In his own supplemental affidavit, defendant averred that his family got together at 4849 S. Honore on June 24, 2003, to celebrate his daughter's birthday. He admitted that he "occasionally resided" at that address and that he "use[d][the] residence quite often." He stored items in the garage, had keys to the apartment, and did "not need to ask for permission to enter or exit." He averred that he was constantly in the company of family during his time in the apartment on June 24. In her supplemental affidavit, Massiel stated that there was never any smell of marijuana in the apartment on June 24. The family's children did not tell of any strangers coming to visit during the women's grocery trip. Likewise, there were no visitors during the remainder of that day, during which time defendant remained in the apartment. Massiel corroborated defendant's averment that he occasionally resided at the apartment and had his own set of keys. Carmen's supplemental affidavit largely mirrored that of Massiel. However, she also averred that defendant slept with her on a couch in the apartment after their daughter's party, that she was a light sleeper, and that she would have noticed if anyone had knocked at the apartment door or if defendant had left her side.

The circuit court heard defendant's Franks motion on June 2, 2004. At the hearing, the court stated that it failed to see how Officer Sanchez could have recklessly disregarded the truth of Doe's statements, since Sanchez brought Doe before the magistrate. In the circuit court's view, by doing so, the determination of the credibility of Doe became the burden of the magistrate and not of Sanchez. The State argued that defendant had failed to demonstrate his entitlement to a Franks hearing because all of his affidavits were from biased persons, whose accounts of the events of the day had shifted between their original and supplemental affidavits, and which did not positively rule out the occurrence of the transaction described by Doe. The circuit court ruled on the motion as follows:

"As has been pointed out by the State there seems to [sic] inherent contradictions in the affidavits. The affidavits do not, even as presented[,] exclude the possibility of someone being able to go into that apartment of [defendant] on that date and observe what he alleges he observed.

* * *

In this case you have family members who in different parts of the affidavits allege different things, whether or not they lived there, whether or not they stayed there, they are contradictory on their face. I don't think the affidavits are sufficient to go to the next step for the Frank's hearing and your motion will be denied."

The cause then proceeded to trial.

The primary disputes at trial surrounded whether defendant controlled the room in which the narcotics were found so that his constructive possession of those drugs could be inferred. The State introduced a medical bill recovered from the room by the police listing 4849...