People v. Zurawski

• Decision Date: 10 September 1992
• Docket Number: No. 2-90-1106,2-90-1106
• Citation: 234 Ill.App.3d 418,600 N.E.2d 463
• Parties: , 175 Ill.Dec. 532 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Daniel ZURAWSKI, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 463

600 N.E.2d 463

234 Ill.App.3d 418, 175 Ill.Dec. 532

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Daniel ZURAWSKI, Defendant-Appellant.

No. 2-90-1106.

Appellate Court of Illinois,

Second District.

Sept. 10, 1992.

[234 Ill.App.3d 420] [175 Ill.Dec. 533] Herbert Abrams, Law Offices of Abrams & Minkus, Skokie, for Daniel Zurawski.

James E. Ryan, DuPage County State's Atty., William L. Browers, Deputy Director, Robert J. Biderman, State's Attys. Appellate Prosecutors, Springfield, for the People.

Presiding Justice INGLIS delivered the opinion of the court:

Defendant, Daniel Zurawski, was convicted by a jury of two counts of possession of a controlled substance with the intent to deliver in violation of sections 401(a)(2) and 401(b)(2) of the Controlled Substances Act (Ill.Rev.Stat.1987, ch. 56 1/2, pars. 1401(a)(2), (b)(2)). He was sentenced to six years' imprisonment and fined $6,600 for violation of section 401(a)(2) (the quantity of cocaine being more than 15 grams, a Class X felony), and sentenced to four concurrent years' imprisonment and fined $900 for violation of section 401(b)(2) (the quantity of cocaine being between 1 and 15 grams, a Class 1 felony). Defendant raises five issues on appeal: (1) whether the trial court erred in denying defendant's motion to quash the arrest and suppress evidence; (2) whether defendant was proven guilty beyond a reasonable doubt; (3) whether the trial court erred in denying defendant's motion for a mistrial; (4) whether the trial court erred in denying defendant's motion for a new trial; and (5) whether defendant was improperly indicted by the Du Page County grand jury. We affirm.

Defendant was arrested on October 21, 1988, while in the garage of Louis Napoleon in Addison, Illinois. According to defendant, he visited Napoleon that evening to pick up his 1981 Cadillac, which had been parked in front of Napoleon's home while defendant was on vacation. As the result of two undercover cocaine purchases from Napoleon, the Addison police department executed an arrest warrant for Napoleon and a search warrant for Napoleon's garage at approximately 9 p.m. that evening. The officers found defendant in the garage talking with Napoleon.

Both men were told to lie on the floor and then were handcuffed. Three $100 bills, of which the serial numbers had been previously recorded by the police, were found in defendant's pants' pockets. Those three bills were used when a police informant purchased drugs from Napoleon earlier that evening. A search of Napoleon's garage revealed a secure back room where the police found and seized approximately 80 grams of cocaine, a scale and other drug paraphernalia. Defendant and Napoleon were then arrested, taken to the police station and read Miranda warnings. The police also towed defendant's car to the police station. After obtaining a search warrant approximately eight hours later, the police searched the car and found three packets of cocaine, weighing approximately 7 1/2 grams, in the passenger area.

Defendant was charged in count I with violating section 401(b)(2) of the Act (Ill.Rev.Stat.1987, ch. 56 1/2, par. 1401(b)(2)), based on the cocaine found in his car. Defendant was charged in count II with violating section 401(a)(2) of the Act (Ill.Rev.Stat.1987, ch. 56 1/2, par. 1401(a)(2)), based on the cocaine found in Napoleon's garage.

Defendant filed a motion to suppress evidence, alleging that the police searched him, and towed and searched his car, without legal cause. After a suppression hearing on March 13, 1989, the trial judge denied defendant's motion. Defendant's trial was in January 1990. At one point during the testimony of one of the police officers, defendant moved for a mistrial because the officer testified that defendant had denied the officer permission to search his car. The trial judge denied the motion. The jury found defendant guilty of both counts. In September 1990, the trial judge heard defendant's motion for a new trial. Defendant alleged newly discovered evidence as a basis for his motion. After a hearing, the trial judge denied the motion and sentenced defendant.

MOTION TO SUPPRESS HEARING

Officer Michael Simo, Lieutenant Michael Kostecki and the police informant testified at the March 13, 1989, suppression hearing.

Officer Simo testified that he arranged for the police informant to purchase cocaine from Napoleon on October 20, 1988. The informant purchased a small envelope containing 3 1/2 grams for $150. He told Simo that Napoleon had a sawed-off shotgun in the locked back room to the garage where he purchased the drugs. He indicated that Napoleon kept the back room locked at all times, even to family members.

The informant also told Simo that he thought he knew who Napoleon's supplier was. He did not know this individual's name, but described him as a white male, in his late thirties, with light colored hair, a medium build, 6 feet tall, whose last name is Polish and starts with the letter "Z," and who is known as Dan, Mr. Z and Danny Z. The informant told Simo that he saw this individual deliver drugs to Napoleon at least six times in the past. He also said that this individual drove a black Eldorado Cadillac, with Illinois license plates that read "M-R-Z-E-E." Simo had never used this particular informant before. The informant knew of Napoleon's drug activity because he used to be a "runner" for Napoleon, making drug deliveries, and because he used to buy drugs from Napoleon for personal use.

Officer Simo testified that there had not been an agreement regarding the informant's participation in this case and that the informant was not paid for his participation. However, a month or two later, the informant's two-week sentence on a misdemeanor retail theft charge was waived.

Officer Simo arranged for the informant to make a second drug purchase from Napoleon on October 21 at approximately 6 p.m. The informant purchased a small envelope containing a quarter-ounce of cocaine, approximately seven grams, for $400. He used four $100 bills, the serial numbers of which had been recorded. The amount purchased tested positive for cocaine.

Simo then obtained a search warrant for the garage, which he and four other Addison police officers executed at 9 p.m. that evening. They approached the east door to the garage, knocked and loudly announced their presence, to which there was no response. They then checked the door and found that it was locked. Two officers used a battering ram to open the locked door. Defendant and Napoleon were found in the back room of the garage, were instructed to lie down on the floor, remained standing, and were then forced onto the floor and handcuffed. Within the back room, Simo stated that they found two clear plastic bags half-full of a white powdery substance, a triple-beam scale and 16 envelopes, similar to the envelopes that the informant had purchased earlier that day and the day before.

Officer Simo stated that Lieutenant Kostecki searched defendant and found three $100 bills in his pants' pockets, the serial numbers of which matched those of three of the bills that the informant had used earlier that day to buy cocaine from Napoleon. Simo stated that the fourth bill never turned up in the search of the garage. According to Simo, the police did not know who defendant was until about 15 minutes after the search began, at which point they ran a license plate check on a black Eldorado Cadillac parked out front with a license plate that read "MRZEE1." They learned that a "Dan Zurawski," defendant, was the owner of the car. Simo testified that the Cadillac was not parked in front of Napoleon's home on either of the two occasions when the informant had purchased cocaine from Napoleon. Defendant was arrested, taken to the Addison police station, and read the Miranda warning.

Officer Simo testified that defendant's car was towed to the police station at 9:45 p.m. that evening to secure it until the police obtained a search warrant. Due to the circumstances, Simo suspected that cocaine would be found in the car. After obtaining a search warrant for the car the following day, Simo stated that other officers searched the car and found three packages of cocaine in the passenger area.

The police informant was the next witness. He testified that he met Napoleon in December 1987. The informant purchased cocaine from Napoleon approximately 100 times between January and July 1988, during which time the informant was using cocaine regularly. He stated that he has been arrested for theft twice. For the felony theft, he was sentenced to three years' probation. For the misdemeanor theft, his two-week jail sentence was waived after the Addison police department relayed his cooperation in this case to the State's Attorney's office.

The informant's testimony regarding the drug purchases from Napoleon on October 20 and 21 matched that of Officer Simo. He stated that he told the police about defendant's drug transactions with Napoleon, described defendant's physical description, related his various nicknames, and described defendant's Eldorado Cadillac and specialized license plate. The informant testified that he saw defendant with Napoleon six times previously, each time at Napoleon's garage. Each time, defendant would carry a shoe box and accompany Napoleon to the back room of the garage. When the two men exited the back room, the informant would hear Napoleon say "add that to my account." The informant testified that for one transaction he went to defendant's condominium in Roselle with Napoleon and saw cocaine packets pass from defendant to napoleon. He did not actually see the cocaine change hands at any of the other times.

Lieutenant Michael Kostecki testified next. Kostecki stated that upon arrival at Napoleon's garage at 9 p.m. on October 20, the officers knocked on the door, twice announced their presence, heard no response, after which they forced the...