*1 ILLINOIS, WILLIAM Plaintiff-Appellee, THE PEOPLE OF THE STATE OF KRUG, Defendant-Appellant. R.
Fifth District No. 75-326 Opinion April 1976. MORAN, J.,
G. specially concurring. Ralph Cummings, Appellate Ruebner and Daniel both of State Defender’s Office, Elgin, appellant. Lewis, Attorney, (Bruce D. Irish and Rolf F.
Loren P. State’s of Benton Association, Ehrmann, counsel), Attorneys for the both of Illinois State’s People. opinion
Mr. PRESIDING of the court: KARNS delivered JUSTICE Defendant-appellant, WiUiam of unlawful Krug, convicted possession grams marijuana production of more than 500 and unlawful *2 in Franklin marijuana County. of after a trial He sentenced to 4 periodic first 6 in years’ probation with the months to be served imprisonment. offenses, in a living
At the time of instant rented the Sesser, in At of was a house Illinois. the northwest corner the house contained, garden its sole some 60 vegetation, cultivated which ranged in from to 4 (marijuana) plants. plants cannabis sativa These size street height clearly in and be seen from the and inches could sidewalk lot, this in adjoining away. observing garden the house and 20 feet On residence, Owens, of police front of the defendant’s chief of William the Sesser, sought and a search for the lot and the house to secured warrant of support seize cannabis and In his affidavit in the plants sativa leaves. application, garden plants warrant Owens the and the and described that from his in dealing stated with he believed marijuana Owens, marijuana plants. day, together to be same plants these Later the Pritchard, Parrish, and Ralph Olguin, Officers Clifford James searched, approached marijuana plants premises the to be observed the house, police outside the identified officers to the and themselves defendant, Arnett, Bob were also defendant. Darrell Moles and who searched, house, sequestered in rights, were informed of their thorough while a living room of the house the officers conducted L in a dresser (marijuana) search. The search cannabis sativa disclosed: closet, drawer, bed, cigar in a in a between dresser and box bedroom; a television hanging garment a a closet in the front on bag set, living in an stereo in the plastic envelope ashtray speaker a on a room; and an garage; a 2-foot tall a milk carton plant growing garden house. Michael quantity undetermined from the outside Identification, Podlecki, stated a Illinois Bureau of that criminalist for the grams. was 514.3 weight marijuana total found within house effects, personal Various The house was to the defendant. rented pad to him a including pictures, several addressed and notebook letters name, in the bedroom. The owner bearing were found front house, White, Lloyd occupied stated that front bedroom was Moles, personal defendant. There no other or effects were clothes Beal, argued living whom defense were Arnett or individuals Jim defendant, search, present. a house at the time of the friend of 1 testified, however, had each once one-half that Beal and Arnett attempted The State paying month’s rent with the defendant balance. of White testimony by producing this impeach payments the rent mention of the Beal without Arnett.
The State
filed
for want of
a motion to dismiss the cause
jurisdiction.
Boston,
Relying upon People
(5th
1975),
the notice of
State
because
order,
appeal
probation
was filed before the written
and no notice
time,
appeal was
have
subsequent
court does not
jurisdiction.
disagree
inapplicable
We
as we believe
Boston
here.
Boston
held that
trial
appeal
we
where the State filed notice of
after the
its
orally
filed,
court
indicated
decision but before a
written order
appeal
notice of
was not timely
jurisdiction.
filed and
lacked
we
case,
In the
judge
instant
ruled
petition
defendant’s
probation at
sentencing hearing
lengthy
entered a
recitation
his ruling
docket minutes of
probation
be conditioned
periodic
was filed
imprisonment. Subsequently
probation
a written
order
containing
subsequent
the terms and conditions of that
probation.
probation
order in no
way
guilt
affected the
length
or the
terms
periodic
challenge the
imprisonment. Had defendant sought to
faced with
probation
the written
would be
appeal,
order on this
we
*3
were final
problem.
more difficult
But here
and sentence
judgment
to all
and that
but
ministerial incidents
probation
notice
clearly
prior
filing
of the
indicated
the written record
final
from a
appeal.
appealed
We believe that
defendant
appealable
jurisdiction
order and
to consider
merits
that we have
Home,
Miller,
3d
this
v.
31 Ill.
appeal.
Heritage
See
Inc.
Shelter Care
700,
(5th
1975).
Defendant two the trial court erred appeal: raises issues on whether suppress denying quash defendant’s motion to search warrant the trial court inside his house and whether illegally seized Lloyd White to used permitted prior unsworn statement substantive evidence. of a support the issuance probable
We
cause existed
believe
sufficient facts
alleged
admits there were
search warrant. Defendant
lot,
To
but
the house.
a search of the
probable
indicate
cause for
warrant,
which
must be related
facts
support the issuance
a search
being committed
a crime was
cause
man to believe
would
a reasonable
49
George,
(People
place
to be searched.
and the evidence was
determining the existence
372,
(1971).) In
Ill.
N.E.2d 26
2d
interpret
warrant must
cause,
judicial
issuing
officer
probable
fashion
realistic
sense and
supporting
test
affidavits
a common
McGrain,
189,
may draw
(1967))
Defendant that the trial court erred also prior inconsistent evidence as substantive residence, of the defendant’s Lloyd the owner defense witness. month’s defendant, of one paid one-half called testified Beal Jim rent for month’s of one Bobby and a one-half rent Arnett another month each of the rent the balance house. The defendant had State introduced month. The the entire rent another paid the rent White stated that the White which objection of of Arnett or Beal. Over the on the house without mention inconsistent, and, was not defense counsel therefore, to cross- Attorney permitted impeaching, the State’s *4 was examine White as One of the statements to these statements. extraneous matters introduced into evidence. The other contained persons who identify was identical to the former as to the by jury was not admonished rent on the house and was not admitted. The be trial of White was to during prior the court statement in actual or prove Krug that was considered as substantive evidence to
387 3.11, IPI house. possession of the cannabis seized constructive of a witness that inconsistent jury prior which instructed the statements witness, that testimony of weighing them could be considered was of defendant. given objection over or inconsistency of challenge
Defendant does not committed propriety of the instruction. He that error was failed, sponte, jury admonish the at time trial court when it sua prior his with use made of statements proper White testified to the to be statement, improperly use the the result allowed to evidence, admitted as substantive evidence. a witness as to a prior inconsistent statements of
Introduction dangers impeachment. a The clearly proper material matter method may by jury that such be used has caused courts to improperly impose limitations and restraints the use of these statements. Paradise, 381, People (1964), v. v. People 2d 196 N.E.2d Collins, 179, Supreme 49 Ill. 2d N.E.2d (1971), our Court outlined dangers prior in the use of statements. The court inherent inconsistent just that such must must be impeachment repetitious stated not be and the “clearly instructed limit its of such cautioned and consideration 381, 385, Paradise, its purpose.” (People evidence for v. 30 Ill. 2d proper 689, instruction 691.) 196 N.E.2d give limiting The failure to improper may use of a inconsistent prosecution Collins; Paradise; grounds (People People sufficient reversal. v. v. for Tate, People v. v. Bailey, (1975);People 60 Ill. 2d N.E.2d 804 400, 197 (1964).) way Ill. 2d restraints in mean that Yet these no prior inconsistent inadmissible statements defense witness are impeachment purposes. People Kelly, 22 Ill. 317 N.E.2d (2d 1974). However, procedure is not to that complained comparable here Paradise, Bailey. prosecution condemned Collins and There the and to read at impeach surprise allowed to its witness a claim of under testimony going length damaging and introduce directly guilt guise impeachment. of defendants under White his statements were concerned testimony
Here the payment of of rent. In a the matter was collateral since payment sense White fact proof occupancy house. rent would be direct tenant, the house. testify occupied rent and did that the front bedroom was Other witnesses for the State testified no that it one occupied by appeared apparently sought to cast doubt else lived house. defense defendant, that testimony by a friend of the admitted, White for the house. persons paid part other the rent actually however, who he knew only person defendant was *5 was portion lived house. Whether Beal or Arnett of the rent immaterial. largely contradictory
It is the opinion many scholars and courts substantive and statements witnesses should admitted as evidence admission rule. hearsay of such evidence does not violate the hearsay is an theory extrajudicial rule statement “[T]he rejected by person is because it was made out of court an absent 0 ® however, Here, by °. subject not to cross-examination hypothesis present subject is the witness and to cross-examination. former ample There is to test him to the basis for his opportunity as already purpose hearsay statement. rule has The whole of the been giving is the tribunal nothing prevent satisfied. Hence there to from statement it seem extrajudicial may such testimonial credit to the course, one is as useful Psychologically to deserve. statement other; everyday consider as and outside to (3 ed. Wigmore, (3d courtrooms is in Evidence accord.” §1018 1940).) Collins, Ill. 2d position rejected People
This in advanced however, Paradise, Bailey, N.E.2d in (1971); in Collins Tate, Since went to defendants’ directly guilt. statement Collins, (See other jurisdictions adopted Wigmore, have this view. (3d Supp.).) position Evidence In our ed. view §1018 direct merit those instances does not where statement involve guilt. Such assertions defendant’s statements should be admitted sound substantive matter within the exercise of evidence of the asserted discretion the trial court. however, case,
In the instant we do not believe that the admission statement requires jury into evidence conclusion 3.11, to allowed consider statement as IPI substative evidence. drawn, although opinion our particularly artfully advised purpose opinion, for which it was to consider statement. our it would have if required impeaching been the court had better portions of the statement to be read to the usual fashion. the witness Allowing a go written to whether as jury, impeachment evidence, or as unduly substantive the written emphasizes word over any witness’ court practice discouraged is to be testimony. event.
But the opinion admission of statement would in our not constitute Its propriety probative reversible error its admission. regardless of impeachment value as weak. The was at variance only White’s court the failure to state on occasions Arnett, Beal one- testify, had each contributed who did his omission explain fully was allowed rent. White half of one month’s examination. on redirect his written statements names from these County is affirmed. of Franklin Circuit Court Affirmed.
EBERSPACHER, J., concurs. MORAN, concurring: specially
Mr. GEORGE J. JUSTICE I do not agree but majority, I concur in the result reached as substantive should be admitted prior inconsistent statements This comment asserted, majority. as stated matter majority’s idea of only amounts unnecessary opinion to the *6 what the should be. law ILLINOIS, Plaintiff-Appellee, OF THOMAS
THE PEOPLE OF THE STATE VATH, Defendant-Appellant. J.
Fifth District No. 74-446 Opinion April 1976.
EBERSPACHER, J., specially concurring.