People v. Janis
| Decision Date | 28 December 1992 |
| Docket Number | Nos. 1-89-2867,1-91-2776,s. 1-89-2867 |
| Citation | 181 Ill.Dec. 286,608 N.E.2d 359,240 Ill.App.3d 805 |
| Parties | , 181 Ill.Dec. 286 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Michael JANIS, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
Daniel J. Stohr, Chicago, for defendant-appellant.
Jack O'Malley, State's Atty., County of Cook (Renee Goldfarb, Eileen O'Neill and Clare M. Wesolik, of counsel), for plaintiff-appellee.
Following a jury trial in the circuit court of Cook County, defendant Michael Janis was found guilty of possession of a controlled substance with intent to deliver. Defendant was sentenced to 9 years imprisonment. Defendant now appeals both the verdict and the trial court's subsequent dismissal of defendant's petition for post-conviction relief.
The record on appeal discloses the following facts. Defendant was charged by indictment with possession of a controlled substance with intent to deliver. At trial, following opening statements, the State called Chicago Police Officer James Ahern as a witness. Officer Ahern testified that he had been assigned to the Narcotics Unit of the Organized Crime Division of the department. Officer Ahern stated that in October 1987 he was investigating the area around 9870 Cordoba Court in Orland Park, Illinois.
Officer Ahern testified that in late October 1987 he obtained a search warrant for apartment 1B at the above address. In response to the State's questions, Officer Ahern stated that the search warrant had been signed by Judge Urso in the very same building where this trial was taking place. The search warrant identified a person known at the time as "Dog," who was described as a Caucasian male, six feet two inches tall, 200 pounds, with brown eyes, brown hair and a mustache.
Officer Ahern then testified as to the appearance and location of apartment 1B in late October 1987. He also stated that prior to obtaining the search warrant, he had conducted surveillance of the apartment. In a two hour period, Officer Ahern saw between six and ten persons enter the apartment from the rear entrance and leave after less than five minutes. Officer Ahern indicated that from his experience in narcotics investigations, such activity was consistent with a narcotics operation such as a "dope house."
Officer Ahern further testified that he saw a particular person in the apartment during his surveillance. This person was described as a Caucasian male, over six feet tall, wearing horn-rimmed glasses, with black hair and brown eyes. Officer Ahern identified this person in court as defendant. Officer Ahern also saw defendant go to a Cadillac parked near the north end of the building and remove an object the size of a sandwich bag from the trunk.
Officer Ahern testified that he searched the apartment on October 19, 1987, pursuant to the aforementioned search warrant signed by Judge Urso. Before entering the apartment, Officer Ahern noticed a plastic bag that appeared to contain cocaine resting upon a television set. He and several other officers knocked on the apartment door, announced their office and stated that they had a search warrant. Receiving no response, the police forcibly entered the apartment to conduct their search. Officer Ahern took custody of the plastic bag he had observed on the television set. The police discovered clothing for a tall man, including army fatigues labelled with the name "Janis." The police also found a letter from a utility company addressed to defendant.
As a result of the search, Officer Ahern obtained an arrest warrant for defendant. On December 28, 1987, he received a tip from a certain individual regarding defendant's whereabouts. While conducting surveillance of the location identified in the tip, Officer Ahern and other officers found defendant, placed him under arrest, advised him of his Miranda rights and took him to the police station. According to Officer Ahern, defendant owned a 1986 Thunderbird at the time of his arrest.
Defendant was advised of his rights a second time at the police station. He was also given a written form explaining them. After reading the form, defendant indicated that he understood his rights but refused to sign the form. Under questioning, defendant stated that he was unemployed. According to Officer Ahern, when defendant was asked about narcotics found in his apartment, defendant replied that the dope belonged to him and friends. When asked who his friends were, defendant said that he was not telling the police and that the contraband was his.
Zaida Cordero, a criminalist chemist employed by the Chicago Police Department was called as an expert witness. She indicated that she had weighed the contents of the bag which had been retrieved by Officer Ahern from the apartment, and that the contents weighed 51.32 grams. Cordero conducted three different preliminary tests and two other tests on the contents of the bag. She concluded that the bag contained cocaine. The tests did not reveal the presence of any other substance.
Robert Massura testified that he was in charge of the homeowner's association for the apartment building at 9870 Cordoba Court in Orland Park, Illinois. According to Massura, defendant started living in apartment 1B at that address in July 1987, and orally agreed to lease the apartment through April 1988. Massura stated that defendant paid $475 rent in cash every month. Massura testified that defendant gave him a pager number at which defendant could be contacted. Massura rented a second apartment to defendant for two months beginning January 1988.
Karen Williams, the Keeper of Records and security representative for the Illinois Bell Telephone Company, testified that defendant was listed as the subscriber for the telephone in apartment 1B at 9870 Cordoba Court in Orland Park during the October 28, 1987, billing period. The parties stipulated that a representative from Commonwealth Edison would testify that defendant was listed as the subscriber at the same address during the same time period, and that service was discontinued on October 23, 1987.
Defendant's mother testified that she helped defendant rent the apartment at issue in July 1987. She also stated that in September or October 1987 defendant had a roommate named Tom Dow. Defendant's mother visited the apartment on a weekly basis, cleaned the apartment on occasion, and did not see drugs there. She did not visit defendant after he moved out of the apartment in December 1987. She did not know whether defendant owned a car or held a job in October 1987.
Tom Dow testified that he lived with defendant in Orland Park for a couple of months in 1987. He testified that he did not have any drugs in the apartment during that time and that the cocaine found there did not belong to him.
Chicago Police Officer Ernest Cain testified that he had been one of the officers who arrested defendant. He testified that defendant had been advised of his Miranda rights twice and was given a written form explaining them. After reading the form, defendant indicated that he understood his rights but refused to sign the form.
Following closing arguments and deliberations, defendant was found guilty of possession of a controlled substance with intent to deliver. On September 28, 1989, the trial court denied defendant's motion for a new trial. Defendant filed his notice of direct appeal on October 24, 1989. On March 25, 1991, defendant filed a petition for post-conviction relief with the trial court. The trial court dismissed the petition on August 12, 1991. Defendant filed a notice of appeal regarding the dismissal on August 19, 1991. This court consolidated the appeals.
Defendant contends that the State improperly used the existence and contents of the search warrant to prove its case. The introduction of such evidence may prejudice a defendant where the evidence: (1) is inadmissible hearsay; (2) improperly bolsters the credibility of a witness as a prior consistent statement; or (3) is argued by the State as evidence of guilt. (See People v. Stout (1982), 110 Ill.App.3d 830, 837, 66 Ill.Dec. 496, 501-02, 443 N.E.2d 19, 24-25; People v. Okundaye (1989), 189 Ill.App.3d 601, 618-19, 136 Ill.Dec. 981, 993-94, 545 N.E.2d 505, 517-18 (per Pincham, J.), at 624, 136 Ill.Dec. at 997, 545 N.E.2d at 521 (Murray and Coccia, JJ., specially concurring), 136 Ill.Dec. 981, 993, 545 N.E.2d 505, 517 (per Pincham, J.), 136 Ill.Dec. at 996, 545 N.E.2d at 520-21, (Murray and Coccia, JJ., specially concurring).) Nevertheless, statements detailing the course of a police investigation introduced for the limited purpose of showing why the police behaved as they did is not hearsay. (See People v. Sanchez (1987), 163 Ill.App.3d 186, 192-93, 114 Ill.Dec. 401, 406, 516 N.E.2d 556, 561; People v. Hunter (1984), 124 Ill.App.3d 516, 529, 79 Ill.Dec. 755, 767, 464 N.E.2d 659, 671.) Thus, we address each of the concerns raised by the use of the search warrant at trial.
First, there is the question of whether the warrant was used to introduce hearsay, which is an out-of-court statement offered to prove the truth of the matter asserted. (E.g., People v. Rogers (1980), 81 Ill.2d 571, 44 Ill.Dec. 254, 411 N.E.2d 223.) In this case, the State referred to the contents of the warrant on numerous occasions--in its opening statement, on direct examination of Officer Ahern and in closing arguments. In particular the record indicates that the State referred on several occasions to the description of the person mentioned in the warrant and argued that defendant, not Tom Dow, matched this description. It therefore appears that the contents of the warrant were used by the State in an attempt to prove that defendant was the possessor of the cocaine. Such use goes beyond a recitation of the investigatory procedure in this case.
However, the reason that the use of hearsay evidence is generally...
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... ... "Counsel's competence is to be determined from a consideration of the totality of counsel's conduct, not isolated incidents, and a reviewing court will not extend its inquiry into areas involving the exercise of judgment, discretion, trial tactics or strategy." People v. Janis, 240 Ill.App.3d 805, 815, 181 Ill.Dec. 286, 608 N.E.2d 359 (1992) ... We find that defendant cannot establish that his trial counsel's actions were so deficient as required under the first prong of the Strickland test and, therefore, hold that defendant was not denied effective ... ...
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