People v. Valentin ( 1985 )

JUSTICE LORENZ

delivered the opinion of the court:

After a jury trial, defendant Salvador Valentin was convicted of possession of a controlled substance and possession with intent to deliver a controlled substance (Ill. Rev. Stat. 1981, ch. 56½, pars. 1401, 1402 and 1204(c)(12) (heroin)), and was sentenced to 25 years’ imprisonment. Defendant maintains that the trial court erred in refusing to quash his arrest and suppress evidence seized in connection therewith; that the State failed to prove his guilt beyond a reasonable doubt; that the trial court erred in rejecting jury instructions submitted by defendant; and that the prosecutor prejudiced the jury with improper argument. The following facts are pertinent to our disposition.

In his complaint for a search warrant, Detective John Corcoran stated that he had known his informant for five months and had received correct information about narcotics from him on each of eight separate occasions. Corcoran further stated:

“On 2 October 1981 at about 10:30 Am, this individual contacted me and indicated that a person known to him as ‘Julio’ was selling Heroin from his residence at 1741 North Cicero. This subject stated that on this, 2 October 1981 at about 8:00 Am he went to this location at 1741 North Cicero and upon knocking on the 1st floor door, he was greeted by an individual known to him as ‘Julio’. After being admitted into the 1st floor of this single family dwelling, Julio asked this subject what he was interested in. At this time, this subject stated that he wished to purchase an ‘ounce’ but wanted to know the exact price. The subject known as ‘Julio’ stated that it would cost $1600.00 At this point, my informant stated that he proceeded to give ‘Julio’ this amount, sixteen hundred dollars. My informant stated that Julio then indicated that he would have to put the ounce together and instructed my informant to accompany him into the basement apartment.

Upon accompanying him into the basement, the subject Julio proceeded to the kitchen of this apartment and upon reaching under the refrigerator he proceeded to remove a clear plastic bag which contained a quantity of tan powder. At this point, he proceeded to place a quantity of the tan powder from the clear plastic bag on a ‘gram scale’ and upon checking the weight placed this substance into another plastic bag. At this point, my informant stated that the weight was about 10 grams. Julio stated that he was going to have to keep the rest here for someone else, but that he had more upstairs and wanted my informant to accompany him back upstairs to get the rest of the ‘Stuff’. It should be noted that upon asking my informant what the conversation was about he explained that the subject Julio kept some of the substance downstairs and then took him back upstairs for the rest.

At this point, my informant stated that he wanted to know if the substance he was purchasing was any good and Julio replied ‘of course’ and then proceeded to remove a small portion of the tan powder from the original plastic bag and gave it to my informant to ‘sample’. My informant stated that he then placed this small portion into his nostrils and inhaled same. After a few minutes, he stated that he received the same effect that he has in the past when he has used Heroin. My informant indicated that he has been utilizing Heroin for the past ten (10) years and that this substance which he inhaled was in fact Heroin. After inhaling this substance, my informant stated that Julio took the original plastic bag which still contained a quantity of tan powder, which the informant stated was Heroin, back under refrigerator. At this point, Julio took my informant and the gram scale and bag back upstairs to the first floor where he proceeded into the kitchen. He then instructed my informant to wait a few minutes, while he proceeded into another portion of the house. Upon returning he was carrying another clear plastic bag which also contained a quantity of tan powder. At this point, Julio stated ‘to show my good faith, try some of this’ and upon reaching into this clear plastic bag, he proceeded to remove a small portion and gave it to my informant. My informant stated that he then inhaled this tan powder and he again received the same effect that he has in the past when he has used Heroin. The subject Julio then removed some of the contents of this plastic bag and placed this on the gram scale and my informant stated that the scale read 15 grams. Julio then placed this tan powder into the plastic bag which he had taken from the basement containing the 10 grams of Heroin. Julio then shook the contents up and said that my informant could step on it twice. At this point, Julio took the plastic bag which he had obtained from the 1st floor and placed it back in another portion of the house. He then told my informant to return if he needed any more ‘stuff’ and if he purchased larger amounts he would give him a better price. At this point, my informant left this residence. My informant stated that when he left this location the subject Julio was in possession of at least two clear plastic bags which contain Heroin.

Based on the facts as presented, it is respectfully requested that a Search warrant be issued.”

At 4:15 p.m. on October 2, 1981, Judge Stephen Schiller issued a search warrant for the first-floor and basement apartments of 1741 North Cicero Avenue. The warrant authorized the search of a man known as “Julio,” described as white male, 25 to 30 years old, 5 feet 11 inches, 150 to 160 pounds a light moustache and short, black, wavy hair. The warrant also authorized a search for heroin and for proof of residence.

At approximately 9:30 p.m. on Friday, October 2, 1981, the Chicago police executed the search warrant, and in the course of the search, arrested defendant. During a hearing on defendant’s motion to quash the arrest and suppress evidence, two detectives testified that they knocked on the door to the first-floor apartment, heard noises inside, then forced the door open. Both detectives stated that as they entered, defendant was moving from the living room toward the dining room, away from the front door. Defendant was placed on the couch, and a woman and two small children were ordered to remain seated in the living room while the police conducted their search.

Defendant testified at the hearing that he lived in the basement apartment at 1741 North Cicero. He said that his name was not Julio, that he had nothing to do with the drugs seized, and that he did not pay rent, utilities, or any other bills for the first-floor apartment. Defendant stated that on October 2, 1981, he was visiting the lady who lived in the first-floor apartment, whose name he did not know. His first knowledge of the police came when they broke the door. When they entered defendant was seated on the sofa. He stood up and they sat him down. Cross-examination produced this colloquy:

“[Assistant State’s Attorney]: You are five foot eleven inches tall, are you not?

[Defendant]: More or less.

Q. And you were that height and weight or about that height and weight on October 2, 1981, weren’t you?

A. I do not remember.

Q. Your hair was black on that date, wasn’t it?

A. My hair is brown.

Q. Very dark brown, isn’t it?

A. Yes, the way it is now.

Q. And your hair was wavy on that date, wasn’t it?

A. No.

Q. Was your hair as wavy then as it is today?

A. Yes.

[Defense Counsel]: Objection, Judge, the defendant’s hair is straight, not wavy.

The Court: It’s got a wave on the side, very noticeable wave. Turn so your lawyer can see.

[Assistant State’s Attorney]: You were between 25 and 30 years of age on October 2, 1981, weren’t you?

A. Yes.”

The trial court denied defendant’s motion to quash the arrest.

At trial, Detective John Corcoran testified that the officers executing the search warrant first knocked and announced their offices, then they heard noises and broke the door down. Corcoran saw a woman on the couch and saw defendant moving from the couch toward the dining room, away from the front door. He later learned that the woman’s name was Digna Tirado. Corcoran searched the rear bedroom, which apparently belonged to the two small children. On a shelf in the closet, he found a large brown paper bag containing 12 cylindrical objects wrapped in duct tape. Corcoran opened one cylinder, discovered brown powder, and exclaimed “Holy s — !” He heard a disturbance in the front of the apartment and went to the living room, where he saw defendant being forcibly subdued.

Officer Frank Goff testified that he and several other police officers approached 1741 North Cicero at about 9:30 p.m. on October 2, 1981. They knocked on the door to the first-floor apartment, announced themselves, heard activity inside, and forced the door open. Goff stated that defendant was moving from the living room to the dining room when they entered; the police grabbed him and placed him on the couch. Detective Ellen Hamel stood watch over defendant, a Latin woman, and two small children while Goff searched the front bedroom. He saw a variety of both men’s and women’s clothing throughout the bedroom, and he found defendant’s driver’s license in the breast pocket of a black suitcoat with white pin stripes. Goff testified that he heard officers in the kitchen yelling that they had found a big bag, and at the same time he heard Detective Hamel yell “Stop!” Goff saw defendant running toward the kitchen, and saw two officers forcibly subdue him. According to Goff, defendant was wearing pants and a T-shirt, but no shoes; when the police prepared to transport him, defendant went to the front bedroom and put on shoes and a jacket.

Detective Ellen Hamel corroborated the testimony of Corcoran and Goff concerning entry to the premises. Hamel also recalled that defendant wore pants and a T-shirt, but no shoes. She heard Detective Corcoran yell from the back bedroom, “Holy s — , look at this.” Defendant broke for the rear of the apartment and was forcibly subdued. Based on her undercover experience, Hamel testified that a gram of heroin on the street contains one or two percent heroin and costs $200.

Chicago police chemist Mary Grabarcik testified that she examined the substances seized at 1741 North Cicero and determined that the 12 cylinders contained 2,295 grams of heroin. On cross-examination, she admitted that she had no precise recall of the purity of the heroin, but on redirect she recalled that it was more pure than other samples, “approximately five to ten percent, five to ten times higher.”

Officer Robert Jacobsen, an intake officer assigned to the receiving room of the Department of Corrections, testified that he interviewed defendant (in English) on October 3, 1981. Defendant told Jacobsen that he lived with Digna Tirado on the first floor at 1741 North Cicero.

Clarence Rezula testified that he had delivered mail to the 1700 block of North Cicero regularly for 14 months. Rezula said that the mailboxes for the first and second floors of 1741 North Cicero were on the front porch, and the basement mailbox was near the basement door. In January of 1981, the basement mailbox was marked “Lucina/ Artiga,” the mailbox for the first-floor apartment was marked “Tirado/Valentin,” and the second-floor mailbox belonged to someone else who had since moved. He said he always left mail for Valentin in the first-floor mailbox, and the mail was always picked up, never returned to him. In about January of 1982, Lucina and Artiga began receiving their mail in the box for the second floor. Valentin’s name was taken off of the first-floor box one week prior to trial.

Alberto Lucina and Angel Artiga testified for the defense. They stated that they lived with defendant in the basement apartment at 1741 North Cicero. They said that defendant slept in the larger bedroom, Lucina slept in the smaller bedroom, and Artiga slept on the floor in the living room. Neither Lucina nor Artiga used the telephone in the basement, and they both believed that defendant received and paid the phone bill. Several months before the trial, Lucina and Artiga moved to the second-floor apartment. On the day of the search, they returned home to find the basement door broken and their things disturbed. They believed that they had been robbed, but they did not call the police. Instead, they went to the first-floor apartment, where they saw defendant and several police officers. According to Lucina and Artiga, the police took defendant to the kitchen, and when they brought him back to the living room he was bleeding and had a black eye. The two stated that defendant was wearing pants, a shirt, and shoes.

In rebuttal, the State called Merny Miller, keeper of the records for Illinois Bell. Her records indicated that the basement telephone at 1741 North Cicero was registered to Raul B. Guerrera.

During the conference on instructions, defense counsel stated that he preferred wording different from that contained in the pattern instruction concerning defendant’s failure to testify. The trial judge responded that he would only consider pattern instructions. As to proof of possession, defense counsel requested the trial court to instruct the jury “that mere presence in the vicinity of the heroin or mere knowledge of the physical location, however, does not constitute possession under the statute.” The trial court refused this instruction as well as the pattern instruction defining¹ ‘delivery. ’ ’

In closing argument, the assistant State’s Attorney argued that the heroin recovered in the search, when cut to normal purity and sold on the street a gram at a time, would be worth between $3 and $6 million. Defense counsel argued that defendant was a poor immigrant, frightened and unable to understand English. In rebuttal, the prosecutor stated: “Well, if he’s such a poor innocent man, just look here. He has three lawyers. And lawyers don’t come cheap.” The prosecutor also commented that defendant was able to function well in society without an interpreter, and that the presence of a court-appointed interpreter was a waste of the taxpayers’ money. In addition, the assistant State’s Attorney remarked:

“Mr. Guinan [defense counsel] also said he wants you to be in Salvatore Valentin’s shoes. He would like you to imagine him in his shoes. Well, you ask yourself, if you were in his shoes, would you have done things a little differently in this trial? Use your commonsense, everyday experience.”

This last comment was the subject of a motion for mistrial at the close of argument.

After deliberations, the jury returned guilty verdicts as to the charges of possession and possession with intent to deliver. The trial court found that the offenses merged, and sentenced defendant to 25 years in prison for possession with intent to deliver. Defendant filed a timely notice of appeal.

Opinion

Defendant first contends that his arrest violated his right to be free from unreasonable seizure of his person, and that evidence connected with the arrest should have been excluded. Defendant argues that the police lacked probable cause particularized to him, in that the police were looking for a white male named Julio, whereas defendant is not white, but hispanic, and his name is not Julio. The State argues that the officers had probable cause when they arrested defendant.

The proponent of a motion to suppress has the burden of establishing that his fourth amendment rights were violated by the challenged search or seizure. (Rakas v. Illinois (1978), 439 U.S. 128, 130-31 n.1, 58 L. Ed. 2d 387, 393 n.1, 99 S. Ct. 421, 424 n.1; People v. Berg (1977), 67 Ill. 2d 65, 364 N.E.2d 880.) In order to decide whether a warrantless arrest meets the probable cause requirement, the trial court must determine whether a reasonable and prudent man, having the knowledge possessed by the officer at the time of the arrest, would believe the defendant committed the offense. (People v. Robinson (1976), 62 Ill. 2d 273, 276, 342 N.E.2d 356.) The court should avoid an overly technical approach and instead should take a commonsense view of the totality of the circumstances. (People v. Tisler (1984), 103 Ill. 2d 226, 245-56, 469 N.E.2d 147.) Once the probable cause determination has been made by the trial court, a court of review will not disturb it absent manifest error. (People v. Reynolds (1983), 94 Ill. 2d 160, 165, 445 N.E.2d 766.) Moreover, a reviewing court may consider all facts and circumstances which pertain to the probable cause issue, and it is immaterial that such facts were disclosed at trial rather than at the suppression hearing. People v. Caballero (1984), 102 Ill. 2d 23, 36, 464 N.E.2d 223, cert. denied (1984), 469 U.S. 963, 83 L. Ed. 2d 298, 105 S. Ct. 362.

Initially, we note that the detention of defendant during the execution of the search warrant was fully consistent with the fourth amendment. The United States Supreme Court held in Michigan v. Summers (1981), 452 U.S. 692, 69 L. Ed. 2d 340, 101 S. Ct. 2587, that “a warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted.” (452 U.S. 692, 705, 69 L. Ed. 2d 340, 351, 101 S. Ct. 2587, 2595.) Defendant concedes that the instant search warrant was valid, and so the reasonableness of defendant’s arrest depends upon what the police knew at the conclusion of the search.

We hold that the police had probable cause to arrest defendant for possession of a controlled substance. When they arrived at 1741 North Cicero on October 2, 1981, the police had reliable information that a man with access to the basement and first-floor apartments had sold a quantity of heroin that morning. They entered the first-floor apartment and saw defendant moving away from them. Defendant answered the description of the man who had sold the heroin, and at about 9:30 p.m. on a Friday, he was present in the first-floor apartment wearing pants and a T-shirt, but no shoes. During the search, police found a variety of men’s clothing, and they found defendant’s driver’s license in the breast pocket of a suitcoat in the front bedroom. They discovered a large quantity of heroin in the bedroom of two small children, and in response to the detective’s exclamation, defendant attempted to flee. A commonsense view of these circumstances would lead a cautious person to believe that defendant committed the offense.

Defendant’s argument to the contrary approaches the absurd. He asserts that the description of a white male named Julio cannot supply probable cause for the arrest of a hispanic male named Salvador. We believe that the difference between “white” and “hispanic,” for the purposes of a description in a search warrant, is one of mere characterization. And the possibility that a drug dealer would use an alias must be obvious to all. Such matters do not even rise to the level of inconsistency. Far from carrying his burden to show that his arrest was unreasonable, defendant’s evasive and palpably incredible testimony at the suppression hearing justified the trial court in rejecting his motion.

Defendant next contends that the State produced insufficient evidence to prove his guilt beyond a reasonable doubt. He claims that the evidence failed to show that he controlled the premises, and he argues that the doctrine of constructive possession should be reexamined in light of People v. Housby (1981), 84 Ill. 2d 415, 420 N.E.2d 151, cert. denied (1981), 454 U.S. 845, 70 L. Ed. 2d 131, 102 S. Ct. 160. The State asserts that Housby is inapplicable, or alternatively, that the doctrine of constructive possession satisfies the constitutional test outlined in Housby. The State maintains that the evidence was sufficient to support defendant’s convictions.

In order to sustain a conviction for possession of a controlled substance, the State must prove that the accused knew of the presence of the substance and that the substance was in the immediate and exclusive control of the accused. (People v. Galloway (1963), 28 Ill. 2d 355, 358, 192 N.E.2d 370, cert. denied (1964), 376 U.S. 910, 11 L. Ed. 2d 608, 84 S. Ct. 665.) Possession may be actual or constructive: constructive possession “is that which exists without actual personal present dominion over a chattel, but with an intent and capability to maintain control and dominion.” (People v. Fox (1962), 24 Ill. 2d 581, 585, 182 N.E.2d 692.) Possession and knowledge are questions of fact to be resolved by the jury, and such findings will not be set aside 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. See People v. Mack (1957), 12 Ill. 2d 151, 145 N.E.2d 609.

The State produced sufficient evidence in this case for the jury to conclude that defendant had both knowledge and control of the heroin which was found during the search. The search uncovered a variety of men’s and women’s clothing in the front bedroom, and a suitcoat which contained defendant’s driver’s license. Defendant put on shoes and a jacket from the bedroom before he was transported to the police station. He told the intake officer there that he lived with Digna Tirado on the first floor. The mailman testified that defendant’s name appeared with Tirado’s on the mailbox for the first floor, that he delivered defendant’s mail to that box, and that the mail was always retained, never returned. From this evidence, the jury was entitled to infer that defendant lived with Tirado in the first-floor apartment. Further, the evidence indicated that defendant was moving away from the door when the police knocked and announced themselves, and that defendant attempted to flee when the police discovered the heroin. Defendant’s name was removed from the first-floor mailbox one week before trial. From this, the jury was entitled to infer not only that defendant knew where the drugs were, but also that defendant was conscious of his guilt.

We find that the analysis in People v. Housby (1981), 84 Ill. 2d 415, 420 N.E.2d 151, cert denied (1981), 454 U.S. 845, 70 L. Ed. 2d 131, 102 S. Ct. 160, has no application in this case. In Housby, the jury was instructed that it could infer burglary from defendant’s unexplained possession of recently stolen property. The Housby court, consistent with contemporaneous decisions of the United States Supreme Court, held that such an inference must bear a certain relation to the underlying facts in order to satisfy the due process clause. (84 Ill. 2d 415, 424.) By contrast, the jury in this case was instructed:

“Possession may be actual or constructive. A person has actual possession when he has immediate and exclusive control over a thing. A person has constructive possession when he lacks actual possession of a thing but he has both the power and the intention to exercise control over a thing either directly or through another person.

If two or more persons share the immediate and exclusive control or share the intention and the power to exercise control over a thing, then each person has possession.”

This is the very definition of possession, and the instruction neither compels nor suggests an inference to the jury. That the jury inferred defendant’s constructive possession from proof that he resided in the first-floor apartment is as inconsequential as it is unremarkable: the trial court did not instruct the jury that they should infer or presume possession from residence, and so the due process problem addressed in Housby simply did not arise. (Cf. People v. Richardson (1984), 104 Ill. 2d 8, 470 N.E.2d 297 (Housby not applicable to interference of intent from circumstantial evidence).) The trial court did instruct the jury that the State was required to prove each element of the crime beyond a reasonable doubt, and we are confident that the jury’s verdict reflects such certainty.

Finally, defendant contends that cumulative error warrants a new trial. He argues that the trial court erred in rejecting nonpattern jury instructions, and that the prosecutors engaged in improper comment. Specifically with respect to jury instructions, the trial judge stated that he would “only consider” Illinois Pattern Instructions (IPI), and defendant maintains that such blanket refusal to consider nonpattern instructions constitutes error. Defendant also argues that the trial judge improperly refused the pattern instruction which defines “delivery,” stating, “He’s not charged with intent to deliver.”

Our review of the record indicates that defendant’s argument misconstrues the context of the trial judge’s statements during the instruction conference. For example,

“[The court]: The fact that the defendant did not testify should not be considered. IPI 2.04.

Do you want that, Mr. Guinan?

Mr. Guinan [defense counsel]: Yes, I do, but I kind of like it in a different statement, if you will consider it.

The court: Well, I only consider IPI.”

In context, this colloquy shows no more than differing preferences as to the wording, and the trial court was correct to point out that the wording of an applicable pattern instruction prevails unless some insufficiency is shown. (See 87 Ill. 2d R. 451(a).) Similarly, the trial judge’s statement concerning “intent to deliver” was made in the context of the pattern instruction defining “delivery.” Because the State introduced no evidence of defendant’s “delivery” of a controlled substance, the trial court properly refused the instruction. With respect to defendant’s modification of the proof of possession instruction, set out in the facts, we believe that the trial court properly rejected it, for the modified language is unduly argumentative. (See 87 Ill. 2d R. 451(a).) The instructions as a whole accurately conveyed the principles of law applicable to the facts, and we can discern no error.

Defendant posits that the prosecutors attempted to inflame the jury in closing argument. He points to the multiplication of heroin’s street price per gram by the number of grams seized by the police, and draws an analogy to the practice of plaintiffs’ attorneys, now condemned, asserting a per diem value for pain and suffering. Defendant complains that the prosecutors undercut his right to counsel by commenting on their expense, and attempted to prejudice the jury against him for his use of an interpreter. He also claims that the prosecutors alluded to his failure to testify. The State argues that the remarks were proper or harmless.

In general, matters in evidence and reasonable inferences therefrom are proper subjects of comment to the jury. (People v. Warmack (1980), 83 Ill. 2d 112, 125-26, 413 N.E.2d 1254; People v. Hairston (1970), 46 Ill. 2d 348, 375, 263 N.E.2d 840, cert. denied (1971), 402 U.S. 972, 29 L. Ed. 2d 136, 91 S. Ct. 1658.) A reviewing court should assess arguments of counsel in the context of the whole trial, and should sustain a conviction unless it appears that improper comment substantially prejudiced the accused. See People v. Baptist (1979), 76 Ill. 2d 19, 28-29, 389 N.E.2d 1200; People v. Tate (1970), 45 Ill. 2d 540, 545-46, 259 N.E.2d 791, cert. denied (1971), 401 U.S. 941, 28 L. Ed. 2d 222, 91 S. Ct. 944.

We note that defendant entered a contemporaneous objection as to only one of the comments of which he now complains, that is, the inquiry “would you have done things a little differently in this trial?” We note, too, that defendant did not specify any allegedly improper comments in his post-trial motion. By his failure to object and his failure to specify such comments in his post-trial motion, defendant deprived the trial court- of any opportunity to strike and cure the comments or to assess their prejudice, and so we consider any error to have been waived. See People v. Carlson (1980), 79 Ill. 2d 564, 576-78, 404 N.E.2d 233.

We find no error in the prosecutor’s computation of the street value of the heroin seized. These comments were based on the evidence, and were relevant to defendant’s intent to distribute. Disapproval of per diem pain and suffering computation in civil cases is based in part upon the lack of commercial value to pain and suffering and in part upon the jury’s familiarity with such matters. (See Caley v. Manicke (1962), 24 Ill. 2d 390, 392-93, 182 N.E.2d 206.) The same cannot be said of heroin.

We believe that the remaining comments fell short of reversible error. Defendant argues that the inquiry whether the jurors would do “things” differently at trial was an attempt to draw attention to defendant’s failure to testify. We believe that the remark, which is set out in full in the facts, was too fleeting and too oblique to have prejudiced the jury. The comment concerning defendant’s three expensive attorneys, when read in context, seems more a reply to defense counsel’s emphasis upon defendant’s poverty than it does an imputation of guilt from the exercise of defendant’s right to counsel. We question the need for such a comment, however. The State makes no attempt to defend the prosecutor’s statement that defendant’s interpreter was a waste of the taxpayers’ money. While we would hold these comments improper, we conclude that they could have had no impact on the jury’s resolution of the issues in the case.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed. Pursuant to People v. Agnew (1985), 105 Ill. 2d 275, 473 N.E.2d 1319, the State’s Attorney’s fee request is hereby granted, and a fee of $75 is assessed against defendant.

Affirmed.

MEJDA, P.J., concurs.

1 Conversely, however, in affirming the trial court’s order overruling the defendant’s motion to suppress, the majority states that “the reasonableness of defendant's arrest depends upon what the police knew at the conclusion of the search.”