THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GREGORY L. MEYER, Defendant-Appellant.
Fourth District No. 4—09—0153
Appellate Court of Illinois, Fourth District
July 8, 2010
August 3, 2010
1089
McCULLOUGH, J.; APPLETON, J., dissenting.
Jonathan H. Barnard, State‘s Attorney, of Quincy (Patrick Delfino, Robert J. Biderman, and Anastacia R. Brooks, all of State‘s Attorneys Appellate Prosecutor‘s Office, of counsel), for the People.
JUSTICE McCULLOUGH delivered the opinion of the court:
In February 2007, the State charged defendant with two counts of unlawful possession of a weapon by a felon, a Class 3 felony (
In June 2007, a jury convicted defendant of two counts of unlawful possession of a weapon by a felon. In July 2007, defendant entered a negotiated guilty plea to one count of delivery of a controlled substance, and the State dismissed the remaining charges. In August 2007, the trial court sentenced defendant to three years’ imprisonment on each weapons count and four years on the delivery count, with all sentences to be served concurrently. In November 2008, this court dismissed defendant‘s initial appeal from his weapons convictions because of a pending motion to reduce sentence in People v. Meyer, No. 4—08—0039, slip order at 9 (November 13, 2008) (unpublished order pursuant to Supreme Court Rule 23). On remand, the court permitted defendant to withdraw his motion to reduce sentence because he had finished serving his prison term.
Defendant again appeals his convictions for unlawful possession of a weapon and ammunition by a felon. Defendant argues (1) his trial counsel was ineffective for failing (a) to move to suppress video taken of the inside of his home by a confidential informant, (b) to challenge the warrant application as fatally defective, and (c) to stipulate to defendant‘s status as a convicted felon; (2) the evidence was insufficient to sustain a conviction for possession of handgun ammunition, as the State failed to show that the ammunition was live; (3) the State committed plain error when it introduced evidence regarding defendant‘s prior felony conviction; (4) plain error occurred when the videotape was admitted without a proper foundation; and (5) the prosecutor committed reversible error when he made improper comments on the evidence during closing arguments. We affirm.
On December 20, 2006, Harold Meyers, a confidential informant of the West Central Illinois Task Force, agreed to wear a buttonhole camera during the controlled purchase of narcotics from defendant. Following the purchase, Meyers filled out an affidavit, which stated the following:
“1. Jane Doe is not my real name, but is the name I am using for this search warrant.
*** 2. I have read the description for [defendant‘s] trailer that is contained in the search warrant and it is true and correct.
3. *** I am familiar with the color and texture of Hydrocodone, Morphine, and Adderal through my own personal use.
4. Within the last 72 hours I have been to the residence of [defendant] ***. At the time I was inside the residence, I saw approximately 20-30 Hydrocodone pills lying on top of a table in plain view inside of the kitchen area ***.
5. On prior occasions I have received and purchased Hydrocodone from [defendant].
6. I was also shown a photograph of a subject who I identified as [defendant].
7. I have not been promised anything in return for my cooperation in this case.”
In conjunction with Meyers‘s affidavit, Officer Brian Martin of the Quincy police department filed a complaint for a search warrant of defendant‘s trailer. The application further alleged Meyers had informed police that defendant was selling prescription narcotics out of his home for between $3 and $10 per pill. On December 21, a trial judge granted police a warrant to search for prescription narcotics in defendant‘s home. Neither the warrant application nor Meyers‘s affidavit mentioned the firearm, the ammunition, the controlled purchase, or the video.
On December 22, 2006, police executed the search warrant. A search of the premises turned up a 9-millimeter Llama handgun, 9 rounds of unfired ammunition, one 9-millimeter magazine, 20 tablets of hydrocodone, and proof of address. The handgun was found inside a lockbox, which police also confiscated.
Also on December 22, the State filed a four-count information against defendant. In February 2007, a grand jury indictment containing the charges listed above superceded the original information.
Prior to trial, the State sought defendant‘s stipulation that he had a 1972 felony burglary conviction. Defense counsel declined to stipulate to the prior conviction.
At defendant‘s June 2007 trial, the State introduced as evidence the testimony of Officer Martin and Inspector Lee Mangold of the Quincy police department, along with the digital video disc (DVD) showing defendant holding pills and a firearm taken by Meyers. The DVD was played for the jury. Defendant‘s trial counsel did not object to the DVD being played.
The State then offered defendant‘s indictment for burglary, guilty-plea form, jury-waiver form, and probation order as proof of defendant‘s 1972 felony burglary conviction.
Defendant testified in his own behalf. Defendant admitted that he was the person on the video holding the handgun. Defendant also admitted that he had received the handgun a few days before from a cousin for safekeeping. He placed it in the lockbox because his rela-
David Winters testified that he was defendant‘s cousin. Winters purchased the handgun and ammunition, which was live, in Arkansas. Winters did not have a valid FOID card, so he gave the handgun and ammunition to defendant for safekeeping. Defendant had the only key to the lockbox in which the handgun and ammunition were found.
As stated, this court dismissed defendant‘s initial appeal because the trial court had not ruled on his motion to reduce sentence. Meyer, slip order at 9. Following the dismissal, the court permitted defendant to withdraw his motion as moot because he had finished serving his prison term.
This appeal followed.
Defendant first argues that his trial counsel rendered ineffective assistance when he (1) failed to move to suppress the video as the product of an illegal search, (2) failed to challenge the warrant itself as defective, and (3) declined to stipulate to defendant‘s status as a felon.
To sustain a claim for ineffective assistance of counsel, the defendant must show that counsel‘s performance was deficient and, but for the deficient performance, a reasonable probability exists that the outcome of the proceeding would have been different. People v. Colon, 225 Ill. 2d 125, 135, 866 N.E.2d 207, 213 (2007). Performance is deficient where it is unreasonable under prevailing professional standards. Colon, 225 Ill. 2d at 135, 866 N.E.2d at 213. A reasonable probability is one sufficient to undermine our confidence in the outcome of the proceeding. People v. Manns, 373 Ill. App. 3d 232, 239, 869 N.E.2d 437, 442 (2007). The failure to satisfy either prong of the test is fatal to an ineffective-assistance claim. Colon, 225 Ill. 2d at 135, 866 N.E.2d at 213.
Defendant first argues that the State violated his fourth amendment right to be free from unreasonable searches when Inspector Mangold sent Meyers into his home with a concealed video camera without first obtaining a warrant.
The fourth amendment protects people against unreasonable government searches and seizures of persons, houses, papers, and effects.
Defendant had no constitutionally protected privacy interest in any activity that Meyers viewed in his home. This includes defendant‘s possession of the handgun. Meyers simply obtained the most reliable evidence of events that he witnessed and could have testified to. Because any motion to suppress the video on the grounds that it was obtained in violation of the fourth amendment would have failed, defendant‘s counsel‘s decision not to challenge the video on constitutional grounds was not deficient. Moreover, no prejudice arose because the video would not have been suppressed.
Defendant further argues that article I, section 6, of the Illinois Constitution of 1970 (
Defendant next argues that his counsel was ineffective for failing to move for a Franks hearing (see Franks v. Delaware, 438 U.S. 154,
Defendant contends that his counsel was ineffective for failing to challenge the warrant as defective because it did not contain any mention of the fact that police officers had watched video of defendant holding a bottle of pills and a handgun. Defendant‘s argument is not well-taken. An affidavit including the contents of the video would have strengthened the State‘s evidence for a warrant, not weakened it. See People v. Bryant, 389 Ill. App. 3d 500, 531, 906 N.E.2d 129, 153-54 (2009) (rejecting the same argument). Therefore, defendant‘s argument fails.
Defendant next argues that the warrant application was deficient on its face because it failed to establish that he was involved in criminal activity. According to defendant, “[t]here is no assertion that these recent events described (simply seeing some pills) were criminal.” The State argues that the complaint was sufficient in that it showed (1) Meyers saw hydrocodone pills inside defendant‘s residence within 72 hours of filing and (2) Meyers had purchased prescription narcotic pills from defendant in the past.
This court reviews a probable-cause determination for whether the issuing magistrate had a substantial basis for determining probable cause existed. People v. McCarty, 223 Ill. 2d 109, 153, 858 N.E.2d 15, 42 (2006). “The extent of details contained in a complaint for search warrant matters.” Bryant, 389 Ill. App. 3d at 521, 906 N.E.2d at 146. A tip providing specific and detailed information regarding the alleged criminal activity suggests that the informant obtained his information in a reliable fashion. People v. Tisler, 103 Ill. 2d 226, 239, 469 N.E.2d 147, 154 (1984). The warrant established that Meyers had been inside defendant‘s home within the past three days. While inside,
The affidavit also indicated that Meyers had firsthand knowledge of defendant‘s possession of the pills. See People v. Smith, 372 Ill. App. 3d 179, 184, 865 N.E.2d 502, 506 (2007) (stating basis of the informant‘s knowledge is a factor to consider). Again, Meyers stated that he had been in defendant‘s home within 72 hours and had seen hydrocodone pills on the kitchen table at that time.
Finally, Meyers also made two admissions against interest, which the magistrate could consider as evidence of his credibility. See People v. Saiken, 49 Ill. 2d 504, 512, 275 N.E.2d 381, 386 (1971) (considering admission against interest in probable-cause analysis). Meyers admitted that his familiarity with hydrocodone came from personal use. He also admitted that he had purchased pills illegally from defendant in the past. Although neither admission was sufficiently detailed to prosecute, Meyers nonetheless admitted past illegal conduct in a court document.
This court determines whether the issuing magistrate had a substantial basis upon which to issue a warrant. The information contained in Meyers‘s affidavit and Officer Martin‘s complaint provided the magistrate with a substantial basis upon which to issue a search warrant. Because the warrant is not facially deficient, no prejudice arose to defendant when his counsel failed to challenge its issuance. For that reason, defendant‘s claim of ineffective assistance of counsel fails.
Defendant next argues that his counsel was ineffective when he declined to stipulate to defendant‘s status as a felon. According to defendant, evidence of his 1972 burglary conviction was unfairly prejudicial. The State argues that defendant suffered no prejudice sufficient to undermine confidence in the outcome of his trial.
Defendant suffered no prejudice requiring reversal in this case. His prior conviction was for burglary in 1972. In this case, defendant was charged with unlawful possession of a firearm. The crimes are dissimilar in nature. Little danger exists that the jury convicted defendant of this crime based upon an improper propensity inference. Also, defendant‘s burglary conviction was over 30 years old at the time of trial. No evidence suggested that defendant was a habitual criminal from whom society needed protection. Therefore, defendant has failed to show that counsel‘s failure to stipulate resulted in prejudice sufficient to require reversal of his conviction.
Defendant also argues that counsel‘s failure to stipulate was prejudicial plain error so serious that it affected the fairness of his
Defendant argues that the State failed to prove his conviction beyond a reasonable doubt because it did not introduce evidence that the ammunition was live. The supreme court considered and rejected the argument defendant makes in People v. Lee, 48 Ill. 2d 272, 281, 269 N.E.2d 488, 493 (1971). The Lee court held that the statute did not require proof that the ammunition was live to sustain a conviction, stating as follows:
“The statutory requirement was that the ammunition be designed to be used or adaptable to use in a firearm. Whether the shells introduced at trial were of this character was for the trier of fact to decide.” Lee, 48 Ill. 2d at 281, 269 N.E.2d at 493, quoting Ill. Rev. Stat. 1969, ch. 38, par. 83—1.1(4).
The statutory definition of “firearm ammunition” remains unchanged. See
Defendant contends that the trial court committed prejudicial plain error when it permitted the State to admit the video of defendant holding the handgun without a proper foundation. The State argues that any error in the video‘s admission did not rise to the level of plain error.
Defendant concedes that he failed to object at trial and the alleged error must be reviewed for plain error. See People v. Sorrels, 389 Ill. App. 3d 547, 552, 906 N.E.2d 788, 793 (2009) (requiring a timely objection at trial and in a posttrial motion to preserve error for review). The plain-error doctrine permits review of a forfeited error, in pertinent part, where “a clear or obvious error occurred and that error is so serious that it affected the fairness of the defendant‘s trial and challenged the integrity of the judicial process, regardless of the closeness of the evidence.” People v. Piatkowski, 225 Ill. 2d 551, 565, 870 N.E.2d 403, 410-11 (2007).
Assuming, arguendo, that the foundation for admission of the video was deficient, any error in its admission did not rise to the level of plain error. Inspector Mangold testified that he equipped Meyers
Inspector Mangold further testified that he reviewed the DVD before executing the search warrant. According to his testimony, the DVD fairly and accurately depicted the trailer‘s contents. The State also had Meyers on its list of proposed witnesses, and the record contains a subpoena for Meyers. The best practice would have been for the State to have Meyers lay a proper foundation for the video or to secure a stipulation from defense counsel as to foundation. However, the failure to do so did not affect the fairness of defendant‘s trial or challenge the integrity of the process leading to his conviction.
Defendant next argues that the prosecutor committed plain error on cross-examination and closing argument when he brought out the facts that defendant did not have a FOID card, showed Meyers the gun while children were present, and knew Meyers was a convicted felon attempting to purchase a gun. Because defendant failed to preserve any of these arguments, we review for plain error. A review of the record shows no error was committed.
On cross-examination, each fact impeached defendant‘s credibility and was thus permissible. Defense counsel‘s closing argument was essentially a plea for lenity from the jury because defendant was a good person trying to help his cousin. Because defense counsel‘s argument invited a response, the prosecutor did not err during closing argument.
For the reason stated, we affirm the trial court‘s judgment. As part of our judgment, we award the State its $50 statutory assessment against defendant as costs of this appeal.
Affirmed.
STEIGMANN, J., concurs.
JUSTICE APPLETON, dissenting:
I respectfully dissent from the majority‘s decision that defendant had no constitutionally protected privacy interest to prohibit a video recording of his home. While there is no doubt that the government agent, Harold Meyers, could report to the police any evidence of
I am not unaware that other courts have determined this issue to the contrary. See Davis, 326 F.3d at 367. I find the extensive analysis, however, made of this issue by the dissent of Justice Harlan in United States v. White, 401 U.S. 745, 28 L. Ed. 2d 453, 91 S. Ct. 1122 (1971), to be much more probative. I see no reason to marginalize the clear constitutional prohibition against warrantless searches and seizures for either police expediency or prosecutorial overkill. The person sent into defendant‘s home by the police could have easily reported to them what, if anything, he had seen and that information could have been used to obtain a search warrant in due course.