People v. Valdez

• Citation: 190 Ill.Dec. 166,621 N.E.2d 35,249 Ill.App.3d 1058
• Decision Date: 26 May 1993
• Docket Number: No. 1-90-3256,1-90-3256
• Parties: , 190 Ill.Dec. 166 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Gloria VALDEZ, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 35

621 N.E.2d 35

249 Ill.App.3d 1058, 190 Ill.Dec. 166

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Gloria VALDEZ, Defendant-Appellant.

No. 1-90-3256.

Appellate Court of Illinois First District, Third Division.

May 26, 1993.

Jack O'Malley, State's Atty. of Cook County, Chicago (Renee Goldfarb, Theodore Burtzos, Susan Schierl, Christopher Daddino, of counsel), for plaintiff-appellee.

Office of the State Appellate Defender, Anna Ahronheim, Asst. Appellate Defender, Chicago, for defendant-appellant.

Justice GREIMAN delivered the opinion of the court:

Defendant, Gloria Valdez, was convicted of possession of controlled substance with intent to deliver based on the discovery of cocaine in a rest room of an airplane en route from Florida to Minnesota with a stopover in Illinois. The trial court imposed a 15-year prison term and a $50,000 fine.

On appeal defendant asserts that (1) the State failed to prove the crime beyond a reasonable doubt; (2) the State of Illinois did not have jurisdiction to try her for the crime because it did not occur in Illinois (Ill.Rev.Stat.1985, ch. 38, par. 1-5); (3) the $50,000 fine imposed should be reduced because she is entitled to a credit of $5 per day for each day in custody before sentencing (Ill.Rev.Stat.1987, ch. 38, par. 110-14); and (4) the mittimus must be corrected because it states the wrong offense of which she was convicted.

We find that venue in Cook County was not proved beyond a reasonable doubt and thus reverse defendant's conviction.

The facts are not in dispute. On September 19, 1986, three passengers, i.e., defendant, Victor Valdez and Guillermo Valdez, boarded Northwest Airlines flight 701 in Miami, Florida. Flight 701 originated in Miami and was destined for Minneapolis-St. Paul, Minnesota, with one scheduled stop in Chicago, Illinois.

Prior to boarding, an airline ticket agent informed an airline service manager that two one-way tickets from Miami to Minnesota had been purchased for cash at the gate by Victor Valdez and Guillermo Valdez. Each ticket cost $160.

Prior to the plane's departure, a flight attendant noticed that Victor and Guillermo Valdez separately entered a rest room, about 30 seconds apart. The flight attendant thought that such behavior was unusual because passengers do not usually use the rest room before takeoff.

The airline service manager boarded the plane and the airline ticket agent identified Victor and Guillermo Valdez. The manager escorted the two men, with their carry-on luggage, off the plane and explained to them that "due to certain regulations, we had to bring them outside due to the fact that they fit certain criteria, and we were obligated to ask them off the plane." The manager and a security agent searched the two men and their luggage for weapons but found none. The manager apologized to the two men who then re-boarded the plane.

After takeoff, the flight attendant searched the rest room which Victor and Guillermo Valdez had previously entered and found four plastic sandwich-type bags containing cocaine with masking tape wrapped around each bag. The four bags were found underneath a trash liner in a garbage container located in a compartment below the sink. The flight attendant then locked the bathroom door, talked to the captain, and re-opened the bathroom door. Later during the flight, the flight attendant saw the two men attempt to use the bathroom where the bags were found but it was occupied.

When flight 701 arrived in Chicago, four law enforcement officers boarded the plane, watched the passengers departing and remaining, and removed the four bags of cocaine from the bathroom. George Mays, a Chicago police officer, escorted defendant off the plane while other agents from the Drug Enforcement Administration escorted Victor and Guillermo Valdez off the plane.

In the passenger waiting room, Officer Mays asked defendant for identification and she produced her one-way airline ticket from Miami to Minnesota issued in the name of Louise Diaz and purchased with cash on the same day. After a field test revealed that the substance in the plastic bags was cocaine, defendant denied that the drugs belonged to her. Defendant stated that she was en route to Minneapolis to visit her son and perform witchcraft for $300. Defendant was allowed to leave after she permitted the officers to search her purse and to have her fingerprints and photograph taken. Defendant then was allowed to leave.

Subsequently, defendant's fingerprints were found to match the latent prints recovered from the masking tape which sealed the plastic bags containing the cocaine. Defendant was arrested on March 15, 1988, approximately 1 1/2 years after the flight at issue.

The jury found defendant guilty of possession of a controlled substance with intent to deliver. The trial court sentenced defendant to 15 years in prison and imposed a fine of $50,000.

On appeal, defendant first asserts that the State failed to prove beyond a reasonable doubt that she possessed cocaine in Cook County as charged in the information. Defendant concedes that sufficient proof exists to establish her possession of the contraband at an earlier point in time, most likely in Florida.

On the other hand, the State contends that either defendant or the two Valdez men for whose conduct she was allegedly "accountable, had constructive possession of the cocaine, with the requisite intent to deliver, at the time the plane passed through Cook County."

As a threshold matter, we note that the Illinois Supreme Court recently reaffirmed the rule that "venue is a material allegation which must be proved beyond a reasonable doubt along with the other elements of an offense." People v. Hagan (1991), 145 Ill.2d 287, 300, 164 Ill.Dec. 578, 583 N.E.2d 494.

The State acknowledges the Hagan decision but nevertheless urges this court to reexamine the supreme court's mandate that venue must be proven beyond a reasonable doubt. However, we cannot entertain the State's request since an appellate court is bound by the decisions of the supreme court. People v. Pruitt (1992), 239 Ill.App.3d 200, 179 Ill.Dec. 1034, 606 N.E.2d 866; People v. Palmer (1986), 141 Ill.App.3d 234, 238, 95 Ill.Dec. 681, 490 N.E.2d 154.

The information in the present case specifically stated "that on or about September 19, 1986, in the Cook County, Illinois Gloria Valdez committed the offense of possession of controlled substance with intent to deliver" in violation of section 401(a) of the Illinois Controlled Substances Act (Ill.Rev.Stat.1985, ch. 56 1/2, par. 1401(a)).

Section 401 provides that "it is unlawful for any person knowingly to manufacture or deliver, or possess with intent to manufacture or deliver, a controlled or counterfeit substance." Ill.Rev.Stat.1985, ch. 56 1/2, par. 1401.

To establish the crime of unlawful possession of narcotics with intent to deliver, the State must prove that the defendant had knowledge of the presence of narcotics and the narcotics were in the defendant's immediate and exclusive control. People v. Ray (1992), 232 Ill.App.3d 459, 461, 173 Ill.Dec. 782, 597 N.E.2d 756. The dispute in the present case concerns the possession element of the crime which may be established by evidence of either actual or constructive possession. (People v. Maiden (1991), 210 Ill.App.3d 390, 397, 155 Ill.Dec. 120, 569 N.E.2d 120; People v. Chicos (1990), 205 Ill.App.3d 928, 935, 150 Ill.Dec. 766, 563 N.E.2d 893.) Only constructive possession is at issue here.

The key to constructive possession is control of the premises where the contraband is found. "Where drugs are found on premises rather than on defendant, the State must prove that the defendant had control of the premises in order to permit the inference that defendant had knowledge and control over the narcotics." Ray, 232 Ill.App.3d at 462, 173 Ill.Dec. 782, 597 N.E.2d 756 (the court reversed the defendants' convictions due to scant evidence linking the three defendants to the apartment where the drugs were found).

Since possession may be joint (People v. Embry (1960), 20 Ill.2d 331, 335-36, 169 N.E.2d 767), mere access by or presence of other persons to the area where drugs are found is not sufficient to defeat a charge of constructive possession. (People v. Eiland (1991), 217 Ill.App.3d 250, 261, 160 Ill.Dec. 231, 576 N.E.2d 1185; People v. Kissinger (1975), 26 Ill.App.3d 260, 263, 325 N.E.2d 28.) If two or more people share immediate and exclusive control or share the intention and power to exercise control, then each has possession. Eiland, 217 Ill.App.3d at 261, 160 Ill.Dec. 231, 576 N.E.2d 1185.

Indicia of control of the premises where contraband is found sufficient to constitute constructive possession generally, but not always, include factors such as ownership of the car (see, e.g., People v. Melgoza (1992), 231 Ill.App.3d 510, 530...