People v. Woodall

• Decision Date: 30 December 1976
• Docket Number: No. 75--287,75--287
• Citation: 358 N.E.2d 1267,44 Ill.App.3d 1003,3 Ill.Dec. 582
• Parties: , 3 Ill.Dec. 582 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. John WOODALL, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1267

358 N.E.2d 1267

44 Ill.App.3d 1003, 3 Ill.Dec. 582

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. John WOODALL, Defendant-Appellant.

No. 75--287.

Appellate Court of Illinois, Second District, First Division.

Dec. 30, 1976.

Edward M. Genson, Theodore M. Becker and J. Samuel Tenenbaum, Chicago, for defendant-appellant.

William J. Cowlin, State's Atty., Woodstock, Charles D. Sheehy, Jr., Phyllis J. Perko, Ill. State's Attys. Assn., Elgin, for plaintiff-appellee.

GUILD, Presiding Justice:

The defendant pled guilty to two separate indictments charging delivery of controlled substances on May 12, 1972 in violation of section 1401(c) of the Controlled Substances Act (Ill.Rev.Stat.1971, ch. 56 1/2, 1401(c).) On November 23, 1973 he was placed on a three year term of probation. On August 9, 1974 he was arrested and charged with the offense of unlawful distribution of a controlled substance. On August 22, 1974 a petition for revocation of defendant's probation was filed, stating that the defendant was arrested on August 9, 1974 by agents of the Federal government and charged with unlawful distribution and dispensing of a controlled substance in violation of the Controlled Substances Act (21 U.S.C., § 841(a)(1).) After two continuances requested by the defendant, on the date of the hearing on the revocation of probation the State moved to amend the petition for violation of probation charging the defendant did 'knowingly and intentionally possess with intent to distribute a Controlled Substance.' On January 24, 1975 the trial court revoked defendant's probation and subsequently sentenced him to a term of 3 years 3 months to 9 years 9 months in the State Penitentiary.

In this appeal the defendant has urged 5 grounds for reversal of his sentence. The first argument is that the testimony of the Federal agents of the Department of Justice was incredible and constituted perjury. Secondly, the defendant urges that, even when viewed in the light most favorable to the State and measured by a preponderance of the evidence standard, the totality of the evidence fails to establish his possession of the controlled substance. Thusly, defendant contends it does not establish violation of the Federal law. The third argument is that the defendant was denied due process and the right of privacy by the refusal of the court to suppress the evidence seized, and statements made, in that the method of procurement of the same reflected serious violations of the defendant's rights under the fourth, fifth and sixth amendments to the United States Constitution. The fourth contention of defendant is that the court erred in allowing the State to amend the petition for revocation at the time of the hearing and further erred by refusing the defendant a continuance pending the outcome of the Federal charge upon which the revocation was based. The defendant's last argument is that the sentence imposed is in error.

Briefly stated, the evidence is as follows. On August 9, 1974 various special agents with the Drug Enforcement Administration of the Federal government transacted a purchase of some 14,000 units of mescaline from one Mitchell Mathena using $15,000 in pre-recorded money. He and Carol Schumann were arrested. Later that day and in the early evening the Federal agents set up a surveillance of a residence on Highland Avenue in Elgin. With them at the scene of this surveillance were Mathena, the girl arrested with him and a police officer of the city of Elgin. It appears that Mathena was cooperating with the agents after his arrest. During this period of surveillance Mathena placed telephone calls to this Highland Avenue residence. The defendant was observed by various of the agents leaving the Highland Avenue address carrying a large bag in his arms. He and JoAnn Burris (now his wife) entered a Volkswagen van and drove to 525 Addison Street and to 515 Adams Street, both addresses in Elgin. Defendant was observed carrying a bag into one of these residences and returning empty handed. The defendant left the Adams street address and he was shortly thereafter arrested traveling eastbound on Route 68. Five of the Federal agents were at the scene of the arrest. Conflicting evidence was admitted as to the exact time defendant was advised of his rights under Miranda. However, there appears to be no conflict in the testimony as to the fact that defendant volunteered the statement 'the bag of _ _ is in the back' (of the van) after he had exited the van. One of the agents entered the van and removed a large brown paper bag containing small, round, pink tablets. It was stipulated at the probation revocation hearing that the bag taken from the van contained 52,000 lysergic acid diethylamide (LSD) tablets.

We consider first the alleged perjurious testimony of the Federal agents. The basis for the alleged perjury is that Federal agents Weinstein and Labik both testified that they each used a pair of binoculars to observe the Highland Avenue house on August 9, 1974. These statements were challenged by the defendant when he put Officer Shaver, an Elgin police officer, on the stand who testified that he did not see agent Weinstein or agent Labik use binoculars. However, this surveillance extended from a period of 3:30 p.m. to approximately 7:00 p.m. Shaver was in Weinstein's vehicle and Labik was parked in another vehicle. Another alleged discrepancy of testimony is that agents Weinstein and Labik did not tell agent Morley that they saw the defendant leave the Highland Avenue address with a paper bag. Additionally, defendant contends, by the testimony of Celeste Burris, now his mother-in-law, that it was 'just barely possible to see someone walk from the house to a car in the driveway' because of the trees. Lastly, defendant contends that the testimony of the agents as to the giving of the Miranda warnings constitutes perjury. There is no question but the Miranda warnings were given to the defendant. As a matter of fact, four officers so testified. We do not find that any of the above constitutes perjury on the part of the Federal officers. Inconsistencies in the testimony of some five or six special agents stationed at different observation points as to what transpired in a period extending for some four hours are to be expected. The testimony is not contradictory and the inconsistency, if any, is that of omission rather than commission.

The next contention of the defendant, in substance, is that the evidence failed to establish that the defendant was in possession of the controlled substance. For this argument the defendant has cited various cases dealing with constructive and/or joint possession. We do not find those cases on point in the factual situation before us. As the court stated in People v. Galloway (1963), 28 Ill.2d 355, 358, 192 N.E.2d 370, 372, in considering the question of possession and knowledge of narcotics:

'Whether there is possession and whether there is knowledge are both questions of fact to be determined by the jury, or by the court where the jury is waived, and, as in the case of other factual determinations committed to a jury in criminal proceedings, its findings will not be disturbed on review unless the evidence is so palpably contrary to the verdict, or so unreasonable, improbable or unsatisfactory as to create a reasonable doubt of guilt.'

In the case before us the defendant was observed by the Federal agents leaving the Highland Avenue residence with a large paper bag which he placed in the van. While it is true that the defendant introduced evidence from one Brian Graham that the defendant did not carry any package into Graham's residence, one of the agents testified that defendant did carry a package in and that he returned from the residence empty handed. Further, at the time of his arrest the defendant specifically stated, prior to the giving of the Miranda warnings, that 'the bag of _ _ is in the back.' Further, after he had been given the warnings, the defendant gave further statements admitting his purchase and possession of drugs and a prior sale to Mitchell Mathena. As defendant points out, this being a probation revocation hearing, it is only necessary that the State prove by a preponderance of the evidence the possession of the LSD. We feel the State has met its burden.

We come then to the closely allied argument of the defendant that he was denied due process by the court's refusal to suppress the evidence seized and the statements made by the defendant at the time of his arrest. We do not agree. The defendant vigorously argues that his constitutional rights under the fourth, fifth and sixth amendments were violated by the Federal agents in his arrest and subsequent search. Actually, there appears to be no serious controversy that at the time of the defendant's arrest, and prior to his being given the Miranda warnings, he made the statement that 'the bag of _ _ is in the back'. At least four officers testified that the Miranda warnings were, in fact, given to the defendant at the time of his arrest. Additionally it is to be noted that as the defendant was being transported to the city of Chicago by the Federal agents, he made various statements relative to possession of drugs and a prior sale to Mathena. The question, therefore before us, on this issue, is whether or not the exclusionary rule is applicable to probation revocation proceedings in the absence of police harassment. There is obviously no police harassment here; the defendant was merely arrested and, at the time of his arrest, he volunteered the statement as to where the drugs were. In the recent case of People v. Dowery (1975), 62 Ill.2d 200, 340 N.E.2d 529, the Supreme Court considered in detail the question of whether the exclusionary rule applies in revocation of probation proceedings. The court observed that the overwhelming majority of reported cases in the United States have held that the fourth amendment...