{ "id": 5440994, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. NARCISCO CRUZ, Defendant-Appellant", "name_abbreviation": "People v. Cruz", "decision_date": "1982-12-14", "docket_number": "No. 81-2920", "first_page": "95", "last_page": "101", "citations": [ { "type": "official", "cite": "111 Ill. App. 3d 95" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "310 N.E.2d 780", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "18 Ill. App. 3d 921", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2610198 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/18/0921-01" ] }, { "cite": "348 N.E.2d 277", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "38 Ill. App. 3d 616", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2806346 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/38/0616-01" ] }, { "cite": "327 N.E.2d 308", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "27 Ill. App. 3d 526", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2866300, 2867997 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/27/0526-01", "/ill-app-3d/27/0526-02" ] }, { "cite": "145 N.E.2d 609", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "12 Ill. 2d 151", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2778187 ], "opinion_index": 0, "case_paths": [ "/ill-2d/12/0151-01" ] }, { "cite": "169 N.E.2d 767", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "20 Ill. 2d 331", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2736858 ], "pin_cites": [ { "page": "335-36" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/20/0331-01" ] }, { "cite": "409 N.E.2d 106", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "opinion_index": 0 }, { "cite": "87 Ill. App. 3d 50", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3180391 ], "weight": 3, "pin_cites": [ { "page": "53-54" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/87/0050-01" ] }, { "cite": "414 N.E.2d 1072", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1980, "opinion_index": 0 }, { "cite": "91 Ill. App. 3d 466", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3148980 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "471" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/91/0466-01" ] }, { "cite": "432 N.E.2d 370", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "103 Ill. App. 3d 1080", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5482111 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/ill-app-3d/103/1080-01" ] }, { "cite": "434 N.E.2d 505", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "105 Ill. App. 3d 459", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5473633 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/ill-app-3d/105/0459-01" ] }, { "cite": "178 N.E.2d 361", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "23 Ill. 2d 306", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2797257 ], "weight": 2, "pin_cites": [ { "page": "308-09" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/23/0306-01" ] }, { "cite": "414 N.E.2d 483", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "90 Ill. App. 3d 1089", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3160828 ], "weight": 2, "pin_cites": [ { "page": "1093" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/90/1089-01" ] }, { "cite": "392 N.E.2d 938", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "74 Ill. App. 3d 363", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3268122 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/74/0363-01" ] }, { "cite": "415 N.E.2d 553", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "91 Ill. App. 3d 646", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3152472 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/91/0646-01" ] }, { "cite": "440 N.E.2d 269", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "109 Ill. App. 3d 142", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5448034 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/109/0142-01" ] }, { "cite": "438 U.S. 154", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1769234 ], "weight": 3, "year": 1982, "opinion_index": 0, "case_paths": [ "/us/438/0154-01" ] } ], "analysis": { "cardinality": 766, "char_count": 16022, "ocr_confidence": 0.757, "pagerank": { "raw": 1.6245666106856403e-07, "percentile": 0.687879100287314 }, "sha256": "543ce816563648ea058b41701dd744175ec4da3ec2ff405fb5d455ecaf986ddf", "simhash": "1:a254385875fdafe7", "word_count": 2670 }, "last_updated": "2023-07-14T21:36:05.990742+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. NARCISCO CRUZ, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE HARTMAN\ndelivered the opinion of the court:\nDefendant, Narcisco Cruz, charged with possession of cocaine and of marijuana with intent to deliver, was tried by the court and found guilty of the former charge but acquitted of the latter. He appeals the conviction for unlawful possession of a controlled substance.\nThe issues presented on appeal are whether: (1) the circuit court improperly denied Cruz\u2019 motion for a pretrial evidentiary hearing concerning the truthfulness of a police officer\u2019s affidavit submitted with his request for a warrant; and (2) he was not proved guilty beyond a reasonable doubt.\nAt trial Officer Thomas Bridges testified that on May 14, 1981, at about 2:30 p.m. he and three other policemen armed with a search warrant went to the rear of Cruz\u2019 third-floor apartment at 1626 N. Richmond in Chicago. When Bridges was two steps from the third-floor rear landing, Cruz ran out of his apartment, looked in Bridges\u2019 direction, and threw a paper bag into the yard below. Bridges then seized Cruz while one of his partners, Officer Contino, retrieved the bag. They searched Cruz\u2019 apartment and found a tinfoil packet containing a white or tan-colored substance in Cruz\u2019 freezer and a utility bill addressed to Cruz at 1626 N. Richmond. The bag Officer Contino recovered contained a number of clear plastic bags in which were crushed green plants. The parties stipulated that the foil packet contained 1.2 grams of cocaine and that the clear plastic bags contained 20 grams of marijuana. Bridges testified that he never lost sight of the paper bag Cruz threw into the yard and that Contino had no trouble finding it.\nMiguel Izairy, who lived in the second floor apartment in Cruz\u2019 building, testified for the defense. He saw many other bags and other garbage strewn in the backyard. It took Bridges\u2019 partners 10 or 15 minutes to find the bag. Three or four other people lived in Cruz\u2019 apartment, but Izairy did not identify them.\nNo other evidence was adduced. The circuit court found Cruz guilty, as first noted, and sentenced him to 30 months\u2019 probation.\nI\nCruz first contends that he was denied due process of law because his motion for an evidentiary hearing on the sufficiency of the search warrant issued against him was denied, relying primarily upon Franks v. Delaware (1978), 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674 and, in his reply brief, upon People v. Garcia (1982), 109 Ill. App. 3d 142, 440 N.E.2d 269.\nIn Franks defendant was convicted of burglary, kidnaping and rape. The United States Supreme Court there held that where a defendant makes a substantial preliminary showing that an affiant intentionally or knowingly made a false statement in the affidavit upon which the judge relied in issuing the warrant, and that statement was necessary to the finding of probable cause, the defendant is entitled to an evidentiary hearing on the matter, if he requests one. The Supreme Court went on to say, however, that affidavits supporting warrants are presumed to be valid and that to mandate an evidentiary hearing, defendant\u2019s attack must be more than conclusory and must be accompanied by an offer of proof supported by affidavit. The Supreme Court specifically stated that it was only the affiant\u2019s veracity \u2014 not that of his informant \u2014 that could be attacked by such a hearing. By requiring \u201ca substantial preliminary showing\u201d the court intended to prevent defendants from abusing such hearings for discovery purposes or to delay trial.\nIn People v. Garcia, defendant was found guilty of possession and possession with intent to deliver cocaine. A judge issued a search warrant for defendant\u2019s apartment, based on a policeman\u2019s affidavit. Defendant moved to suppress the cocaine recovered in his apartment on the ground that the officer had lied in every statement made in his affidavit. Defendant asserted by affidavit that he could not have sold cocaine that day, nor could the policemen have seen his car parked in front of his apartment because he was driving to Chicago from Miami at the time with his wife and children. The appellate court reversed and remanded the case for an evidentiary hearing on the issue of the truthfulness of the policeman\u2019s representations concluding that the defendant\u2019s affidavit constituted the kind of substantial preliminary showing Franks required.\nCruz argues that he was entitled to an evidentiary hearing as well because he denied, by affidavit, that he had sold marijuana on the day affiant, Officer Clifford Berti, stated that a reliable but undisclosed informant told him he bought marijuana from Cruz at his apartment. In his affidavit Cruz averred that he was unable to state whether the informant or Berti lied. Defense counsel, at the hearing on the motion, also suggested that Cruz himself could be lying. Cruz\u2019 lawyer stated that the informant upon whom Berti may have relied admitted to Cruz that he told police he bought some marijuana from Cruz two or three weeks before, but not on the day Berti claimed. Counsel reasoned that if true, then Berti lied; but without definitely knowing the informant\u2019s identity, he could not be sure. Essentially, then, Cruz denies that he sold anyone drugs as charged. His affidavit was devoid of detail material to the charge as would have subjected him to the penalties of perjury (Ill. Rev. Stat. 1981, ch. 38, par. 32\u20142), which were the circumstances in Garcia. The Supreme Court in Franks appears to prescribe at least this much before it would require an evidentiary hearing on the matter. As the following authorities also demonstrate, the request for an evidentiary hearing is without support.\nIn addition to Franks, the State relies on People v. Coleman (1980), 91 Ill. App. 3d 646, 415 N.E.2d 553. In Coleman, defendant was charged with possession of controlled substances, which he denied. He also asserted that the policeman lied in the affidavit submitted to the judge with his request for a search warrant. Defendant\u2019s motion for an evidentiary hearing was denied. The appellate court affirmed, holding that defendant\u2019s general and unsupported denial of crucial facts in the policeman\u2019s affidavit did not constitute the substantial preliminary showing required in Franks. The same situation exists in the instant case.\nIn People v. Anderson (1979), 74 Ill. App. 3d 363, 392 N.E.2d 938, also cited by the State, defendant was convicted of possession of controlled substances. There, a policeman watched an informant enter and leave defendant\u2019s house by the back door while another policeman watched the front door and saw no one enter or leave by that door while the informant was in defendant\u2019s house. Before the informant entered the house, the policeman had searched him and found no drugs on his person. After he left the house, the informant gave them the cocaine which he had bought from the defendant. On the basis of the informant\u2019s and policemen\u2019s affidavits recounting the above facts, a search warrant issued and police recovered controlled substances from defendant\u2019s premises. Prior to trial defendant moved to quash the warrant and suppress the evidence claiming that the informant lied. Defendant also sought to interrogate the informant to determine whether the policemen had also lied. The circuit court denied defendant\u2019s motion and the appellate court affirmed holding, as we hold here, that defendant\u2019s general denial of the sale did not constitute a sufficient challenge to the veracity of the policemen\u2019s affidavits.\nII\nCruz next argues that he was not proved guilty beyond a reasonable doubt. As Cruz notes, the State must establish (1) that he had knowledge of the presence of the cocaine in his apartment, and (2) that the cocaine was within his immediate and exclusive control, before he can be convicted for unlawful possession of a controlled substance. (People v. Townsend (1980), 90 Ill. App. 3d 1089, 1093, 414 N.E.2d 483.) He contends that the State failed to meet its burden of proof because it presented no direct evidence that Cruz knew of the substance\u2019s presence and because it also failed to establish that he handled, sold, or in any other way exercised control over the cocaine seized. In order to meet its burden, however, the State need not prove actual possession as Cruz suggests, but only constructive possession. People v. Townsend.\nThe leading case on this issue is People v. Nettles (1961), 23 Ill. 2d 306, 178 N.E.2d 361. In Nettles, the police found 30 small bags of drugs in a paper bag behind the front door of defendant\u2019s apartment. Even though three other people were in the apartment when the police searched it, the trial court apparently gave little credence to defendant\u2019s testimony that he did not know how the drugs got into his apartment. The supreme court noted that narcotics are rarely, if ever, found unaccountably in a person\u2019s home. It held that the State \u2022need only show that defendant controlled the premises in which the narcotics were found in order to establish unlawful possession, absent other facts or circumstances which might create reasonable doubt in the minds of the jury. (People v. Nettles (1961), 23 Ill. 2d 306, 308-09.) See also People v. Brownstein (1982), 105 Ill. App. 3d 459, 434 N.E.2d 505; People v. Munoz (1982), 103 Ill. App. 3d 1080, 432 N.E.2d 370; People v. Ortiz (1980), 91 Ill. App. 3d 466, 414 N.E.2d 1072; People v. Townsend (1980), 90 Ill. App. 3d 1089, 414 N.E.2d 483; and People v. Hester (1980), 87 Ill. App. 3d 50, 409 N.E.2d 106.\nCruz argues that because Izairy testified that three or four other people lived in Cruz\u2019 apartment, the State failed to show that the cocaine was in his exclusive possession. Cruz\u2019 position, however, is undercut by People v. Embry (1960), 20 Ill. 2d 331, 335-36, 169 N.E.2d 767, where the court held that \u201cexclusive\u201d possession does not mean \u201csole\u201d possession. In Embry, defendant and five other people were present when the police searched defendant\u2019s apartment and found drugs there. In People v. Ortiz, the court affirmed defendant\u2019s conviction for possession of heroin. There, the police found the heroin in a cabinet in the basement of the three-flat which defendant owned and in which he also resided. Before searching his apartment and the basement below, the police had observed several men approach defendant, speak with him for a few moments, enter his apartment, and then leave a short while later. At trial, defendant\u2019s son and a friend said that the cabinet in which the heroin was found was theirs \u2014 that defendant kept his things in another part of the basement. In light of this uncontradicted testimony, defendant argued on appeal that the State had failed to meet its burden of proof. The appellate court was not persuaded because: (1) defendant\u2019s argument assumed the truth of his witnesses\u2019 testimony, which the trial court was not bound to believe; and (2) even if believed, the court concluded it still could have found defendant guilty of possession because possession by one does not preclude a finding of possession by another. The court also noted that defendant will not defeat a charge of constructive possession by simply establishing that others have access to the place where the drugs were found, citing People v. Mack (1957), 12 Ill. 2d 151, 145 N.E.2d 609, where two other people were observed leaving defendant\u2019s apartment shortly before narcotics were found there.\nCruz cites People v. Wolski (1975), 27 Ill. App. 3d 526, 327 N.E.2d 308, as a case \u201calmost identical\u201d on its facts in which the court held that the State had failed to meet its burden of proof. In Wolski defendant established: (1) that he and his brother shared the apartment in which marijuana had been found; (2) that he had not been to the apartment for a period of three days beginning the day before the search; and (3) that there were always a lot of people.going in and out of the apartment. These facts were sufficient to raise a reasonable doubt in the court\u2019s mind as to defendant\u2019s guilt and required that the State would have had to come forward with more evidence linking defendant to the contraband in order to prevail. See People v. Hester (1980), 87 Ill. App. 3d 50, 53-54, 409 N.E.2d 106, in which the court in considering Wolski came to the same conclusion.\nIn contrast, here Cruz was present and close when the cocaine was found. Further, just moments before, as the police were climbing the stairs to his apartment, he had run out onto the back porch landing of his apartment and thrown a bag that contained marijuana into the yard below. The only evidence that anyone else lived in the apartment was Izairy\u2019s testimony that three or four other people, whom he did not identify lived there too. At a post-trial hearing, the trial judge indicated that he gave little credence to Izairy\u2019s testimony in this respect. As the court noted in People v. Ortiz (1980), 91 Ill. App. 3d 466, 471, 414 N.E.2d 1072, a trial court\u2019s findings should not be disturbed unless the evidence is so palpably contrary to the verdict, or so unreasonable, improbable or unsatisfactory as to raise a reasonable doubt concerning defendant\u2019s guilt. In the instant case, the court\u2019s assessment of Izairy\u2019s credibility and the weight to be accorded his statement is supported by the evidence.\nCruz correctly cites People v. Ireland (1976), 38 Ill. App. 3d 616, 348 N.E.2d 277 for the proposition that mere knowledge of the presence of a controlled substance in one\u2019s home does not, in and of itself, establish a voluntary possession of the requisite control. That case is unusual and distinguishable. There defendant admitted that he knew that marijuana was in his house but because they were in difficult financial straits his wife, over his objection, was selling it and had threatened to leave him if he did not permit her to continue. The court concluded that he had reluctantly acquiesced in her activities and, in reversing his conviction, stressed that possession must be voluntary.\nCruz contends that the only piece of evidence tending to show knowledge and control on his part was an electric bill addressed to him that the police found in his apartment the day they searched it. This argument is misleading. His affidavit in support of his motion for an evidentiary hearing asserts that Cruz rented the apartment as the tenant. At trial it was revealed by Izairy that Cruz rented and resided in the apartment searched. Further, Cruz\u2019 lawyer admitted at the post-trial hearing: \u201cI don\u2019t think there is any question that it was established that it was his [Cruz\u2019] apartment and that there was cocaine present in what I would consider a common area of the apartment [refrigerator freezer].\u201d The court inferred knowledge and control from the fact that Cruz rented the apartment and resided there \u2014 not from the existence of the utility bill found there. It could be argued that the bill was not hearsay evidence if it were simply offered as circumstantial evidence that Cruz was receiving mail at that address, from which it might be inferred that he resided there as well. (See People v. Hester (1980), 87 Ill. App. 3d 50, 409 N.E.2d 106.) As the court noted in People v. Torres (1974), 18 Ill. App. 3d 921, 310 N.E.2d 780, a murder case, reversal is not warranted where the matter to which the hearsay testimony relates was proved by other properly admitted evidence.\nFrom the foregoing, we conclude that the motion for an evidentiary hearing was properly denied and the defendant was proved guilty beyond a reasonable doubt. Accordingly, we affirm.\nAffirmed.\nSTAMOS, P.J., and PERLIN, J., concur.", "type": "majority", "author": "JUSTICE HARTMAN" } ], "attorneys": [ "Steven Clark and Allan R. Stasica, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.", "Richard M. Daley, State\u2019s Attorney, of Chicago (Michael E. Shabat, Raymond Brogan, and Rhoda W. Davis, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. NARCISCO CRUZ, Defendant-Appellant.\nFirst District (2nd Division)\nNo. 81\u20142920\nOpinion filed December 14, 1982.\nSteven Clark and Allan R. Stasica, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nRichard M. Daley, State\u2019s Attorney, of Chicago (Michael E. Shabat, Raymond Brogan, and Rhoda W. Davis, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0095-01", "first_page_order": 117, "last_page_order": 123 }