People v. Olivas, No. 61253

CourtUnited States Appellate Court of Illinois
Writing for the CourtBURMAN; JOHNSON, P.J., and DIERINGER
Citation354 N.E.2d 424,41 Ill.App.3d 146
Decision Date23 June 1976
Docket NumberNo. 61253
PartiesPEOPLE of the State of Illinois, Plaintiff-Appellee, v. Augustine OLIVAS, otherwise called Augustin Olivos, Defendant-Appellant.

Page 424

354 N.E.2d 424
41 Ill.App.3d 146
PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
Augustine OLIVAS, otherwise called Augustin Olivos,
Defendant-Appellant.
No. 61253.
Appellate Court of Illinois, First District, Fourth Division.
June 23, 1976.
Rehearing Denied Sept. 15, 1976.

Page 426

[41 Ill.App.3d 147] Jerome Rotenberg, Thomas J. Maloney, Chicago, for defendant-appellant.

Bernard Carey, State's Atty., County of Cook, for plaintiff-appellee; Laurence J. Bolon, Eugene J. Rudnik, Jr., Renee Golbus Goldfarb, Asst. State's Attys., of counsel.

BURMAN, Justice.

The defendant, Augustine Olivas, was charged by indictment with possession of a controlled substance (heroin) in violation of Section 402(a) of the Controlled Substances Act. (Ill.Rev.Stat.1973, ch. 56 1/2, par. 1402(a).) Subsequent to a jury trial, he was found guilty of the offense charged and sentenced to the Department of Corrections for a term of not less than five years nor more than fifteen years. On appeal, the defendant seeks a reversal of his conviction on the bases that (1) his right to a fair trial was prejudicially denied as a result of the trial court's improper admission of evidence and argument relating to the issuance of a search warrant; (2) the trial court erred in admitting evidence of his other purported criminal activity; and (3) the State's closing argument was prejudicially improper in that the prosecutor not only insinuated improprieties on the part of defense counsel, but he also commented on facts that were not proven by the evidence.

A review of the record reveals that subsequent to a conversation on June 13, 1973, with an individual well known to them, Sergeant Richard McKelvey and Investigators Bernard Brown and James Hanrahan of the vice control division of the narcotics section of the Chicago police department conducted a two hour surveillance of the defendant's jewelry store located at 1039 West Belmont in Chicago, Illinois. During the course of this surveillance, these police officers observed a number of individuals, many of whom were personally known to them as a result of their official activities in the narcotics division, enter the store, engage in a [41 Ill.App.3d 148] conversaton with the defendant, and then give money to the defendant in return for some unidentifiable item that the latter would hand each individual.

On the following day, these police officers procured a search warrant for the defendant's premises. They thereupon proceeded to the jewelry store and conducted another surveillance of the locale. At approximately 6:00 p.m., they entered the store, indentified themselves initially to an employee standing behind a counter in the front part of the store and then to the defendant who was situated in the storeroom of the jewelry shop. The defendant was presented with the search warrant and subsequent to being afforded time to read said document, he informed the police officers that they could search the store. Sergeant McKelvey and Investigator Hanrahan commenced searching the premises and uncovered a brown paper bag located in a shelf area above a work bench in the storeroom. This bag contained two large tin foil packages of tan powder which, after a field test was conducted, was ascertained to be heroin. The defendant was then placed under arrest and, upon being advised of his constitutional rights, voluntarily remarked, 'Oh, my God, if I ever get out of this, I will never sell dope again.'

On November 21, 1973, the defendant was indicted by the grand jury for knowingly and unlawfully possessing a controlled

Page 427

substance in violation of Section 402(a) of the Controlled Substances Act. (Ill.Rev.Stat.1973, ch. 56 1/2, par. 1402(a).) Subsequent to entering a plea of not guilty to the offense charged, the defendant moved on October 31, 1974 to quash the search warrant and suppress the evidence on the basis that the affidavit of probable cause was insufficient. This motion was denied by the trial court on December 2, 1974, and the cause was set for trial on the next day.

After the jury was selected and both sides presented their respective opening statements, the State commenced its case-in-chief by eliciting testimony from Sergeant McKelvey and Investigator Brown regarding their involvement in the instant case. Besides recounting what transpired on the thirteenth and fourteenth of June, 1973, the police officers opined that the street value of the heroin seized from the defendant was between seven hundred and fifty thousand dollars to a million dollars. Subsequent to the testimony of the above police officers, the State called Veronica Drantz, a chemist at the Chicago police department crime laboratory. She testified that the substance found on the day in question was heroin and that it weighed slightly more than 1.3 pounds.

Prior to the State resting its case, it sought to introduce into evidence various exhibits which comprised the tin foil packets, the heroin itself, and the search warrant and complaint for search warrant used by the instant police officers to investigate the defendant's premises. These latter two items of evidence prompted a colloquy between the trial court and [41 Ill.App.3d 149] the counsels for the State and the defendant concerning the admissibility of such exhibits. Such discussion resulted in the trial court admitting the search warrant into evidence, but precluding the submission of said documents to the jury for its deliberations.

Subsequent to defense counsel eliciting testimony from the landlord of the store which the defendant rented as well as the latter's other attorney, the defendant took the stand in his own behalf. He stated that on June 14, 1973, approximately at 1:00 p.m., a man named Salvadore left the brown bag containing the heroin with him. Moreover, he testified that Salvadore, who had left packages with him on two prior occasions, informed him that someone would call for the package. He further related that he never opened the bag nor was he cognizant of what heroin looked like since he never sold or possessed drugs.

Besides testifying as to the reason for the bag being present in the jewelry store, the defendant unequivocally denied making the remark to the police officers at the time of his arrest that if he ever got out of this, he would never sell dope again. Rather, he informed the police that if he would go clear and free, he would 'never hall (sic) any package for nobody.' However, on cross-examination, it was brought out that the defendant acknowledged making the prior statement at the preliminary hearing.

Upon the conclusion of the testimony of the defendant, two character witnesses who were called in his behalf, and the rebuttal witnesses proffered by the State, counsels for the State and the defendant presented their respective closing arguments and the trial court...

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15 practice notes
  • People v. Hernandez, No. 3-91-0209
    • United States
    • United States Appellate Court of Illinois
    • May 29, 1992
    ...improper inference that the authorities had reason to suspect defendant of narcotics offenses. We disagree. In People v. Olivas (1976), 41 Ill.App.3d 146, 354 N.E.2d 424, the defendant was convicted of possession of heroin. Police officer testified that after receiving a tip, they placed de......
  • People v. Washington, Nos. 82-1133
    • United States
    • Illinois Appellate Court
    • September 4, 1984
    ...up with the history of the guilty act itself as to form part of one chain of relevant circumstances * * *." (People v. Olivas (1976), 41 Ill.App.3d 146, 150, 354 N.E.2d 424.) In light of the proper admission of four handguns recovered at defendants' arrests, even if we found the three rifle......
  • People v. Kirkpatrick, No. 14986
    • United States
    • United States Appellate Court of Illinois
    • March 26, 1979
    ...of the evidence for its limited purpose outweighed its prejudicial [70 Ill.App.3d 175] effect on defendant. People v. Olivas (1976), 41 Ill.App.3d 146, 354 N.E.2d The question of defendant's accountability is also the issue in defendant's assertion that the jury was erroneously instructed. ......
  • People v. Coulter, No. 1-87-3175
    • United States
    • United States Appellate Court of Illinois
    • March 16, 1992
    ...was cured by the trial court sustaining the objection, as the record supports the jury's verdict. (E.g., People v. Olivas (1976), 41 Ill.App.3d 146, 354 N.E.2d 424.) Finally, defendant has failed to show that the cumulative effect of these comments mandates reversal. Compare People v. Estes......
  • Request a trial to view additional results
15 cases
  • People v. Hernandez, No. 3-91-0209
    • United States
    • United States Appellate Court of Illinois
    • May 29, 1992
    ...improper inference that the authorities had reason to suspect defendant of narcotics offenses. We disagree. In People v. Olivas (1976), 41 Ill.App.3d 146, 354 N.E.2d 424, the defendant was convicted of possession of heroin. Police officer testified that after receiving a tip, they placed de......
  • People v. Washington, Nos. 82-1133
    • United States
    • Illinois Appellate Court
    • September 4, 1984
    ...with the history of the guilty act itself as to form part of one chain of relevant circumstances * * *." (People v. Olivas (1976), 41 Ill.App.3d 146, 150, 354 N.E.2d 424.) In light of the proper admission of four handguns recovered at defendants' arrests, even if we found the three rif......
  • People v. Kirkpatrick, No. 14986
    • United States
    • United States Appellate Court of Illinois
    • March 26, 1979
    ...of the evidence for its limited purpose outweighed its prejudicial [70 Ill.App.3d 175] effect on defendant. People v. Olivas (1976), 41 Ill.App.3d 146, 354 N.E.2d The question of defendant's accountability is also the issue in defendant's assertion that the jury was erroneously instructed. ......
  • People v. Coulter, No. 1-87-3175
    • United States
    • United States Appellate Court of Illinois
    • March 16, 1992
    ...was cured by the trial court sustaining the objection, as the record supports the jury's verdict. (E.g., People v. Olivas (1976), 41 Ill.App.3d 146, 354 N.E.2d 424.) Finally, defendant has failed to show that the cumulative effect of these comments mandates reversal. Compare People v. Estes......
  • Request a trial to view additional results

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