People v. Meyer ( 2010 )

NO. 4-09-0153 Filed 7/8/10
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Adams County
GREGORY L. MEYER, ) No. 06CF743
Defendant-Appellant. )
) Honorable
) Scott H. Walden,
) Judge Presiding.
_________________________________________________________________
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 (720 ILCS 5/24-1.1(a), (e) (West 2006)). The State
alleged that defendant knowingly possessed a Llama 9-millimeter
handgun (count IV) and 9-millimeter ammunition (count V), while
having a prior felony conviction for burglary. At that time, the
State also charged defendant with two counts of delivery of a
controlled substance (hydrocodone), one count of unlawful deliv-
ery of a controlled substance (morphine), and one count of
unlawful possession with intent to deliver a controlled substance
(hydrocodone) (720 ILCS 570/401(d) (West 2006)). The State later
severed defendant’s drug and weapons charges, going to trial
first on the weapons charges.
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order at 9 (November 13, 2008) (unpublished order pursuant to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
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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 cor-
rect.
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 ap-
proximately 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
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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 maga-
zine, 20 tablets of hydrocodone, and proof of address. The
handgun was found inside a lockbox, which police also confis-
cated.
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 stipula-
tion 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
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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 relatives’ children were frequently in his
home over the holidays. Defendant also admitted that he did not
have a valid firearm owner’s identification (FOID) card and had
been convicted of burglary in 1972.
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 ammuni-
tion 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 dis-
missal, 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
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video as the product of an illegal search, (2) failed to chal-
lenge 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 unreasona-
ble government searches and seizures of persons, houses, papers,
papers, and effects. U.S. Const., amend. IV. The fourth amend-
ment does not protect anything that the defendant knowingly
exposes to another member of the public, including a government
agent. Hoffa v. United States, 385 U.S. 293, 302-03, 17 L. Ed.
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2d 374, 382-83, 87 S. Ct. 408, 413-14 (1966). As the Hoffa Court
stated, the fourth amendment does not protect against "a wrong-
doer’s misplaced belief that a person to whom he voluntarily
confides his wrongdoing will not reveal it." Hoffa, 385 U.S. at
302, 17 L. Ed. 2d at 382, 87 S. Ct. at 413. In Lopez v. United
States, the United States Supreme Court held that the defendant
had no privacy interest sufficient to protect against the admis-
sion of the recording of a conversation between the defendant and
a government agent, made by the agent himself. Lopez v. United
States, 373 U.S. 427, 438, 10 L. Ed. 2d 462, 470, 83 S. Ct. 1381,
1387-88 (1963). Following the Supreme Court’s reasoning from
Lopez, federal courts of appeal have held that video recordings
obtained by or with the consent of a government agent do not
constitute an unconstitutional search. See, e.g., United States
v. Brathwaite, 458 F.3d 376, 381 (5th Cir. 2006); United States
v. Lee, 359 F.3d 194, 201 (3d Cir. 2004) (holding no violation
occurred where the defendant was in the room but the recording
device was not on his person); United States v. Davis, 326 F.3d
361, 367 (2d Cir. 2003).
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 deci-
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sion 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 (Ill. Const. 1970, art. I, §6)
bars the State from having an informant record activities other-
wise hidden from the general public without the suspect’s
permission. Defendant’s only citation to authority is for the
very general proposition that the Illinois Constitution of 1970
provides more privacy protections for individuals than the
federal constitution. Absent persuasive reasoning to the cont-
rary, Illinois courts follow the lockstep doctrine and interpret
article I, section 6, of the Illinois Constitution of 1970 (Ill.
Const. 1970, art. I, §6) to provide privacy protections equal to
those of the fourth amendment (U.S. Const., amend. IV). See,
e.g., People v. Krueger, 175 Ill. 2d 60, 70-76, 675 N.E.2d 604,
610-12 (1996) (declining to extend good-faith exception to
searches conducted to an unconstitutional statute). Defendant
has failed to provide any citation to authority or argument as to
how this court could interpret article I, section 6, in a manner
contrary to the fourth amendment in this situation. For that
reason, defendant’s contentions are forfeited.
Defendant next argues that his counsel was ineffective
for failing to move for a Franks hearing (see Franks v. Delaware,
438 U.S. 154, 171-72, 57 L. Ed. 2d 667, 682, 98 S. Ct. 2674,
2684-85 (1978)) to challenge the veracity of statements made in
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Meyers’s affidavit. Defendant bases his argument upon a state-
ment by the prosecutor at trial in June 2007, almost six months
after the filing of the search warrant, that Meyers had been
arrested but not charged on a felony drug charge due to his
cooperation in this case and others. Defendant has put forth no
evidence to show that, at the time Meyers filed his affidavit, he
had been promised or expected to receive consideration for his
work as a confidential informant. Likewise, defendant has not
shown that Officer Martin knew Meyers had received, or expected
to receive, consideration for his work as an informant when he
filed the search-warrant application. Defendant has the burden
to show that prejudice arose as a result of counsel’s deficient
performance. The record provided in this case is simply devoid
of such facts. Defendant has failed to show that he was entitled
to a Franks hearing, much less that he would have prevailed at
one.
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) (reject-
ing the same argument). Therefore, defendant’s argument fails.
Defendant next argues that the warrant application was
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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, Meyers had seen between 20 and 30 hydrocodone pills, with
which he was familiar from personal experience. Meyers knew
where the pills were stored, the kitchen, and how much they sold
for, $3 to $10.
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)
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(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 prose-
cute, 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
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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 stipul-
ate was prejudicial plain error so serious that it affected the
fairness of his trial. Defendant contends that prejudice arose
from (1) the mere admission of the nature of his prior conviction
and (2) the admission of his jury-waiver form, guilty-plea form,
probation-conditions form, and indictment as exhibits. Any error
in the admission of defendant’s burglary conviction did not rise
to the level of plain error. Again, this court has no reason to
presume prejudice from the jury’s receipt of 35-year-old court
documents for an offense wholly unrelated to the current offense.
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 consid-
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ered 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 ammu-
nition 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 430 ILCS 65/1.1 (West 2006); see also 720 ILCS
5/2-7.1 (West 2006) (giving firearm ammunition the definition
found in the Firearm Owners Identification Card Act). As a
result, defendant’s argument fails.
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 founda-
tion. 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
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permits review of a forfeited error, in pertinent part, where "a
clear or obvious error occurs 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 close-
ness 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 with a Hawk video surveillance camera and
turned it on right before Meyers entered defendant’s residence.
After Meyers exited the residence, Inspector Mangold took the
video camera back from Meyers. Inspector Mangold knew of no
manner to alter or tamper with video recorded using the Hawk. To
prevent tampering, the camera runs in segments, which restart
every time the camera is turned on or off. There was only one
segment on the camera when Inspector Mangold took it from 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
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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.
APPLETON, J., dissents.
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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 wrongdoing he saw occurring in defen-
dant's home and testify to the same at defendant's trial, the
video recording constitutes a warrantless search that is unlawful
under the fourth amendment to the constitution. U.S. Const.,
amend. IV. Testimony of an undercover source may be attacked at
trial. A video recording cannot be rebutted or diminished in
terms of evidentiary veracity.
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.
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