People v. Walters

• Decision Date: 28 July 1989
• Docket Number: No. 2-88-0106,2-88-0106
• Citation: 187 Ill.App.3d 661,543 N.E.2d 508
• Parties: , 135 Ill.Dec. 125 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Jeffrey WALTERS, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 508

543 N.E.2d 508

187 Ill.App.3d 661, 135 Ill.Dec. 125

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Jeffrey WALTERS, Defendant-Appellant.

No. 2-88-0106.

Appellate Court of Illinois,

Second District.

July 28, 1989.

Rehearing Denied Sept. 27, 1989.

G. Joseph Weller, Deputy Defender, Kim M. DeWitt, Office of the State Appellate Defender, Elgin, for Jeffrey Walters.

James E. Ryan, Du Page County State's Atty., Wheaton, William L. Browers, Deputy Director, Colleen M. Griffin, State's Attys. Appellate Prosecutors, Elgin, for People.

Justice INGLIS delivered the opinion of the court:

Following a jury trial, defendant, Jeffrey Walters, was found guilty of armed violence (Ill.Rev.Stat.1987, ch. 38, par. 33A-2), attempted armed robbery (Ill.Rev.Stat.1987, ch. 38, par. 8-4(a)), and aggravated battery (Ill.Rev.Stat.1987, ch. 38, par. 12-4(b)(1)). Defendant was sentenced to 17 1/2 years on the armed violence conviction and to 8 1/2 years for attempted armed robbery, both sentences to run concurrently. The court did not impose a sentence on the aggravated battery conviction. Defendant filed a timely notice of appeal.

On appeal, defendant contends that: (1) the trial court erred in denying his motion to suppress; (2) his aggravated battery conviction should be vacated; and (3) the trial court erred in failing to appoint independent counsel to review defendant's claim of ineffective assistance of counsel. We reverse and remand.

Joseph Imbrogno testified at trial that he was the owner of Pal Joey's Restaurant in West Chicago, Illinois. On February 4 1987, at approximately 1:30 a.m., Imbrogno was approached by two men as he was sitting in his car behind his restaurant. One of the men told Imbrogno that they wanted his money and fired a shot into the car. The bullet hit Imbrogno in the face, and Imbrogno drove his car away from the restaurant and onto Roosevelt Road. Imbrogno managed to attract the attention of a West Chicago police officer, and he was taken to the emergency room of a nearby hospital. Imbrogno gave a brief description of the two men to the police, although he was unable to identify them because they were wearing ski masks.

Chester Fallin, a codefendant in the case, agreed to testify against defendant in exchange for a 10- to 15-year sentence on charges identical to those facing defendant. Fallin testified that he decided to rob Pal Joey's Restaurant because he was familiar with Joseph Imbrogno's habits. Fallin stated that he brought two ski masks, along with a gun, to the robbery scene. He further stated that after Imbrogno exited the restaurant, defendant grabbed the gun from him, approached Imbrogno's automobile, and shot Imbrogno. Fallin took the gun back and later sold it to an individual identified as Ray Lamping. Fallin left West Chicago the following day and returned approximately one month later. He was arrested on March 14, 1987.

On March 16, 1987, Fallin gave a statement to the police implicating himself, defendant, and Ray Lamping in the shooting. However, he later told the police that Lamping was not involved in the crime. Fallin admitted that he had implicated Lamping because Lamping gave the gun to the police.

Michael Hatchell testified that he was a friend of defendant and spoke to defendant on the phone two or three days after the shooting. Hatchell stated that defendant told him that Fallin shot Imbrogno during a robbery attempt and that defendant "wished he hadn't done it." In October 1987, Hatchell received another phone call from defendant. Defendant told Hatchell that he did not commit the crime but instead that Fallin and Lamping committed the crime.

The State's final witness, Joseph Verive, agreed to testify against defendant after the State agreed to recommend a four-year sentence on an unrelated residential burglary charge and not to prosecute him for a bail bond violation. Verive testified that Fallin and defendant planned the Pal Joey's robbery while at Verive's apartment on February 3, 1987. Verive stated that Fallin and defendant left his apartment around 10 p.m., with Fallin returning about six hours later. Fallin's first words to Verive were "man, Jeff [the defendant] shot a guy." Verive also stated that he saw defendant approximately two or three weeks after the robbery. Defendant told Verive that he had to leave the State because the police recovered the gun that was used in the shooting.

Defendant did not testify and did not present any evidence at trial. Following closing arguments, the jury returned guilty verdicts on all three counts. Defendant filed two post-trial motions, one by counsel and the other pro se, which were both denied. This appeal followed.

Defendant first contends on appeal that the trial court erred in denying his motion to suppress the ski masks found as a result of a search at his apartment. Defendant argues that he had standing to contest the search, that the search warrant was invalid, and that the consent given on the "search waiver" form was involuntary. For the reasons stated below, we agree.

Prior to trial, defendant filed a motion to quash the search warrant and to suppress the evidence seized as a result of the search. The search warrant was issued for 805 Burr Oak, apartment No. 204, but was changed by the police officers to read apartment No. 207. This change was made without notifying or obtaining the consent of the issuing magistrate. The trial court granted the motion to quash the search warrant. In addition, the court conducted a hearing on the validity of a consent-to-search form signed by defendant's mother.

The State's first witness at the suppression hearing was Detective William Waterfield of the Du Page County sheriff's department. Detective Waterfield testified that he, along with eight other police officers, went to search defendant's apartment on April 15, 1987. Waterfield stated that he had been to the apartment once before, and believed that defendant, along with his mother and two brothers, resided there. The officers knocked at the door, did not receive an answer, kicked down the door and entered the apartment. The officers began to search the apartment, and 15 minutes later, Detective Waterfield asked Barbara Ruenzel, defendant's mother, if he could search her automobile and the apartment. Mrs. Ruenzel agreed, and Waterfield executed a "search waiver" form which Ruenzel signed.

A copy of the "search waiver" form was included in the record on appeal. An examination of the form shows that the consent was given to search the "person--vehicle--residence" of Ruenzel, with the words "person" and "residence" crossed out. However, Detective Waterfield wrote in "residence" above the typed word that had been crossed out. Ruenzel did not initial any of the changes made on the form.

Officer Donald Goncher of the West Chicago police department testified that he found two ski masks in the apartment, one in a closet and the other in a bedroom dresser. Officer Goncher stated that he found the ski masks approximately 15 minutes after Detective Waterfield announced that Mrs. Ruenzel had given her consent to the search.

Barbara Ruenzel testified that she was at the apartment on the day of the search. Ruenzel stated that the police did not knock on the door, but instead "the door came crashing in" and "police officers came charging in." She was given a copy of the search warrant and was told to sit on the sofa while the officers searched the apartment. Ruenzel testified that she was asked to sign a consent form about one hour after the police arrived at the apartment. Ruenzel stated that she signed the consent form so that the police could only search her automobile. However, she also stated that there were no changes or words crossed out on the form at the time she signed it.

There was some confusion as to whether Ruenzel lived at the apartment that was searched. Ruenzel stated that she did not live at the apartment and did not personally know the woman who did live at the apartment. She further stated that she did not need an invitation to visit the apartment, but instead would just "show up." However, Ruenzel also testified that she kept all of her jewelry and some clothing at the apartment, and her inoperative automobile was parked in the parking lot outside of the apartment. Furthermore, Detective Waterfield testified that Ruenzel identified the residence as "my apartment."

At the close of the hearing, the State asserted that defendant failed to prove standing to challenge the search. The trial court agreed and denied defendant's motion to suppress.

In order to have standing to challenge a search, a defendant must demonstrate that his own fourth amendment rights have been violated. (People v. Santana (1987), 161 Ill.App.3d 833, 839, 113 Ill.Dec. 730, 515 N.E.2d 715.) To do so, a defendant must demonstrate that he has a reasonable expectation of privacy in the place searched or the property seized. (People v. Johnson (1986), 114 Ill.2d 170, 191, 102 Ill.Dec. 342, 499 N.E.2d 1355, cert. denied (1987), 480 U.S. 951, 107 S.Ct. 1618, 94 L.Ed.2d 802; People v. Morrison (1988), 178 Ill.App.3d 76, 82, 127 Ill.Dec. 248, 532 N.E.2d 1077.) In determining whether an individual has a reasonable expectation of privacy, a court may look at property ownership, possessory interest in the area or property seized, ability to control use of the property, prior use of the property seized or area searched, and whether defendant had a subjective expectation of privacy in the property. (United States v. Salvucci (1980), 448 U.S. 83, 91, 100 S.Ct. 2547, 2553, 65 L.Ed.2d 619, 628; Johnson, 114 Ill.2d at 191-92, 102 Ill.Dec. 342, 499 N.E.2d 1355; People v. Dowery (1988), 174 Ill.App.3d 239, 242, 123 Ill.Dec. 669, 528 N.E.2d 214.) It has been held that a person possesses a reasonable expectation of privacy in the apartment where he or she resides. See Payton v. New York (1980), 445 U.S. 573, 589-90, 100 S.Ct....