{ "id": 2491382, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DANNY HAMMOND, Defendant-Appellant", "name_abbreviation": "People v. Hammond", "decision_date": "1990-04-16", "docket_number": "No. 1-87-2741", "first_page": "986", "last_page": "996", "citations": [ { "type": "official", "cite": "196 Ill. App. 3d 986" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "362 N.E.2d 1127", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "48 Ill. App. 3d 743", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3374863 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/48/0743-01" ] }, { "cite": "288 N.E.2d 873", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "53 Ill. 2d 83", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2925636 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/ill-2d/53/0083-01" ] }, { "cite": "404 N.E.2d 199", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "79 Ill. 2d 454", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3070346 ], "opinion_index": 0, "case_paths": [ "/ill-2d/79/0454-01" ] }, { "cite": "492 N.E.2d 227", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "142 Ill. App. 3d 849", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3450774 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/142/0849-01" ] }, { "cite": "342 N.E.2d 110", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "35 Ill. App. 3d 375", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5306871 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/35/0375-01" ] }, { "cite": "533 N.E.2d 509", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "178 Ill. App. 3d 480", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2434058 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/178/0480-01" ] }, { "cite": "425 N.E.2d 994", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "99 Ill. App. 3d 500", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3098500 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/99/0500-01" ] }, { "cite": "475 N.E.2d 832", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "105 Ill. 2d 342", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3141018 ], "opinion_index": 0, "case_paths": [ "/ill-2d/105/0342-01" ] }, { "cite": "473 N.E.2d 840", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "105 Ill. 2d 22", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3141932 ], "opinion_index": 0, "case_paths": [ "/ill-2d/105/0022-01" ] } ], "analysis": { "cardinality": 824, "char_count": 21868, "ocr_confidence": 0.77, "pagerank": { "raw": 6.182052535437735e-08, "percentile": 0.38352757245692704 }, "sha256": "68afeffe15e448bbc67634ef8c5c9d94deceb09edbc3b2b0d33d7b67289c2785", "simhash": "1:22eae1c49350bdf3", "word_count": 3609 }, "last_updated": "2023-07-14T18:37:27.698771+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. DANNY HAMMOND, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE EGAN\ndelivered the opinion of the court:\nThis case centers upon a search warrant calling for the seizure of a backhoe and some snowmobiles. Approximately 11 officers participated in the search of the premises alleged to be the residence of the defendant, Danny Hammond. They searched for about five hours and seized a backhoe, eight snowmobiles and several hundred other items; one officer guessed that 1,000 items were seized. The backhoe, some of the snowmobiles and several of the other items seized were later identified as having been stolen.\nThe defendant was indicted on 10 counts of grand theft. Each count alleged theft of a specific item of property; one count involved a backhoe; two counts involved snowmobiles; and seven other counts involved other items seized.\nThe defendant filed a motion to suppress all items which were the subject of the separate counts of the indictment. The judge suppressed one of the items; he denied the motion as to the other items; and the State dismissed the count which alleged the theft of the suppressed item. A jury found the defendant guilty on the remaining nine counts of the indictment; he was sentenced to probation for 30 months.\nThe defendant first contends that the judge erred in denying the motion to suppress. He argues that the search warrant lacked the required specificity; that it did not allege facts which would support a finding of probable cause; and that the officers exceeded the authority of the warrant.\nThe complaint for the search warrant was dated November 19, 1985, and was based on the affidavit of Sergeant Anthony Murray of the Chicago Heights police department in which he recited in substance the following:\nOn November 12, 1985, he had a conversation with a reliable informant who told Murray he had purchased stolen merchandise from Danny Hammond, whom the informant described. Hammond had been buying stolen merchandise and storing it on his property located at the \u201cnortheast corner of State and Sauk Trail, Cook County, Illinois.\u201d On November 11, 1985, the informant sold miscellaneous power tools to Hammond that h\u00e1d been stolen in a burglary. While the informant was at Hammond\u2019s residence he saw a yellow John Deere backhoe and four to six snowmobiles which were stolen in two separate incidents. The snowmobiles were stolen from Peotone, Illinois, and were sold to Hammond in the middle of October. The backhoe was stolen from Prairie State College at the end of October, driven to Hammond\u2019s residence and sold to him. The snowmobiles and backhoe were stored on Hammond\u2019s property.\nMurray\u2019s affidavit also alleged that he had \u201cconfirmed [the] informant\u2019s information\u201d by telephoning the chief of the Peotone policy. Murray \u201cconfirmed the theft of the John Deere backhoe with the Chicago Heights police report number 85 \u2014 4436.\u201d The complaint asked for issuance of a warrant to seize \u201ca Model JD 500 \u2014 C John Deere wheel loader backhoe with Diesel Engine No. 297383 and any stolen snowmobiles taken in a theft from Peotone, Illinois on 15 October 1985 from Union 76 in Peotone, Illinois.\u201d\nAt the outset, it is appropriate to note that the defendant\u2019s argument that the warrant lacked specificity is restricted only to the description of \u201cany stolen snowmobiles taken in a theft from Peotone, Illinois on 15 October 1985 from Union 76 in Peotone.\u201d The defendant concedes that the description of the backhoe was sufficient.\nWe need not decide whether the warrant was sufficiently specific with respect to the snowmobiles since we have determined they were properly seized because the officers were properly on the premises, the snowmobiles were in \u201cplain view\u201d and the officers had sufficient information that would justify their seizure. As a general rule officers executing a search warrant are restricted to seizing only those items which are identified with sufficient specificity in the warrant; an exception to the general rule exists when items not mentioned in the warrant are in plain view and when the officers reasonably believe those items constitute evidence of criminal activity. People v. Stewart (1984), 105 Ill. 2d 22, 473 N.E.2d 840.\nSergeant Murray testified that he had a telephone conversation with Chief Bogart of the Peotone police on November 19, 1985. They discussed the theft of snowmobiles. He did not recall whether Bogart described the snowmobiles which had been stolen. Bogart told Murray that the snowmobiles were stolen from a Union 76 gas station in Peotone.\nDetective Faioni testified that he spoke to Murray about the conversation Murray had with Bogart. Murray reported that Bogart said that two red Scorpion snowmobiles had been stolen in the burglary.\nWhen Murray executed the warrant on the defendant, Murray went to the rear yard in the area where the informant had told him that the backhoe was located. The warrant itself commanded that the officers were to search \u201ca white frame house and gray storage barns on said property.\u201d There were several structures on the property, and Murray located the snowmobiles in a shed. The vehicle identification numbers of the snowmobiles had been scraped off or peeled off. They were Scorpion snowmobiles. It is our judgment that the police possessed sufficient information to justify a seizure of the snowmobiles.\nThe trial judge, in explaining the reasons for his findings, expressed the view that the items, which were the subject of the other counts of the indictment, were also properly seized under the \u201cPlain View\u201d exception other than a snowmobile trailer which he suppressed. The defendant does not maintain that the trial judge\u2019s reliance on the \u201cPlain View\u201d exception was wrong, and he does not answer the State\u2019s reliance on the exception in this court. It would unduly lengthen this opinion to discuss each of the other six items which were seized and were introduced to support the findings on those six counts. Suffice it to say that the record supports the judge\u2019s finding that those items were properly seized under the \u201cPlain View\u201d exception. For example, Officer Faioni saw a yellow scuba tank. He knew that a yellow scuba tank had been taken in a garage burglary one week before. Murray saw a four-wheel Suzuki all-terrain vehicle which matched the description of a vehicle which had been taken in a burglary in Chicago Heights. The vehicle identification number had been defaced.\nThe defendant also argues that the \u201cfacts\u201d recited in the search warrant did not support a finding of probable cause by the judge who issued the warrant. The defendant maintains that the warrant could have been more specific; for example, he says, the affidavit could have alleged that the informant had been inside the single-family dwelling and that he had seen the backhoe and snowmobiles on the premises. Our first answer is that the test is not whether the affidavit could have been stronger; the test is whether it was sufficient. We hold that it was.\nOur second answer is that the affidavit does allege that the informant observed the backhoe and snowmobile on the premises. Murray\u2019s affidavit alleged that he had known the informant for two years; that the informant had provided him with information on two separate occasions and in both instances stolen property had been recovered resulting in at least one arrest; the informant had previously sold stolen merchandise to the defendant; the defendant had been buying stolen merchandise and storing the merchandise on his property; the informant sold miscellaneous power tools to the defendant which were stolen in a burglary; while at Hammond\u2019s residence the informant observed a yellow John Deere backhoe along with four to six snowmobiles which the informant advised were stolen in two separate incidents. Murray received independent corroboration of the informant\u2019s information by checking the records of his own police department and through his conversation with the chief of the Peotone police department. We judge that the affidavit, considered as a whole, more than adequately establishes a fair probability that evidence of a crime would be found on the described premises. See People v. Jones (1985), 105 Ill. 2d 342, 475 N.E.2d 832.\nThe defendant\u2019s last attack on the search warrant is based on his claim that the police engaged in a general search and that the trial judge found that the police had gone \u201ctoo far.\u201d The trial judge did, in fact, make that observation. He suppressed one of the items seized which the police could not justify under the \u201cPlain View\u201d exception. Once again, we agree with the trial judge\u2019s analysis of the evidence and his findings. None of the other items seized after the police went \u201ctoo far\u201d was the subject of any of the counts for which the defendant was charged other than the item which was suppressed. Lawfully seized evidence will not be excluded because of a subsequent unlawful search for other property. People v. Crowder (1981), 99 Ill. App. 3d 500, 425 N.E.2d 994.\nFor these reasons, we judge that the order denying the defendant\u2019s motion to suppress was proper.\nThe defendant next contends that error occurred when the judge struck the testimony of a defense witness. Edward Benson testified on behalf of the defendant that he had resided at a State Street address in South Chicago Heights for two years. He identified a State exhibit, a diagram of the property where the defendant was arrested. Benson said that he and eight other people lived on the property and that a number of other people used the other buildings on the property. He identified photographs of a backhoe which he had previously seen parked behind the shed next to the building in which he lived. He had seen a person known as Randy Bach operating the backhoe on the property. He never saw the defendant operate the backhoe.\nOn cross-examination Benson testified that Bach did not live on the property on November 19, 1985, the day the defendant was arrested and the property searched. Benson lived above the area marked \u201cgarage\u201d on the diagram, and he had access to the garage and sheds on the property. He denied that he stored any items in the attic of the house but said that he stored some items on the porch and that the cost of storing those items was included in his rent. The cross-examination was then terminated at the request of the assistant State\u2019s Attorney in order that the witness might be advised of his fifth amendment right against self-incrimination.\nThe trial judge appointed an assistant public defender to inform the witness of his constitutional rights concerning \u201cwhat items, if any, he stores in certain area of the premises.\u201d Following a recess, the assistant public defender told the judge that he had spoken to Benson and that it was the assistant public defender\u2019s belief that, if questioning were to resume \u201crelative to a building and access to and control of it,\u201d Benson would assert his privilege against self-incrimination. In response to the judge\u2019s question, Benson said that he would \u201ctake the fifth amendment\u201d if he was asked any more questions.\nThe defendant\u2019s attorney told the judge that the witness should assert his privilege in the presence of the jury. During subsequent colloquy between the court and counsel, the defendant\u2019s attorney, for the first time, expressed the view that the questions asked by the State were \u201cbeyond the scope\u201d of the direct examination. The judge said that \u201cthat objection is not before the court.\u201d The jury was recalled, and the witness said that he would invoke his fifth amendment privilege and refuse to answer any questions. The judge then instructed the jury to disregard any testimony given by the witness.\nThe defendant first asserts that the error occurred when the State\u2019s Attorney\u2019s cross-examination allegedly exceeded the scope of direct examination. That argument must be rejected; first, because no timely objection was made to the State\u2019s questions at the time they were asked (People v. Nearn (1988), 178 Ill. App. 3d 480, 533 N.E.2d 509) and second, because the State\u2019s questions were within the bounds of the direct examination.\nThe defendant also contends that the judge erred when he appointed the public defender to advise Benson of his constitutional rights. However, the defendant\u2019s attorney made no objection when the assistant State\u2019s Attorney asked the judge to advise the witness of his \u201cfifth amendment rights.\u201d In fact, when the judge said that he would appoint the public defender, the defendant\u2019s attorney said, \u201cFine.\u201d Therefore, the argument that the appointment of the public defender was improper is waived. Moreover, it is not improper for a State\u2019s Attorney to suggest appointment of counsel for a witness nor for a judge to appoint counsel to advise a witness of his privilege against self-incrimination. People v. Pantoja (1976), 35 Ill. App. 3d 375, 342 N.E.2d 110.\nThe defendant\u2019s last contention with respect to Benson\u2019s testimony is his assertion that the court erred in striking the testimony. He does not cite any case nor does he answer the State\u2019s argument which includes citation to People v. Cedillo (1986), 142 Ill. App. 3d 849, 492 N.E.2d 227.\nIn Cedillo, a prosecutor interviewed a codefendant who had pleaded guilty and who was listed as a prospective defense witness. After the interview the prosecutor informed the court that the witness\u2019 version of the offense appeared to be contrary to his stipulation at the plea proceedings. The prosecutor said that if the codefendant testified as he had indicated, he would be charged with penury. The court appointed the public defender to advise the witness, and the witness indicated that, if called to testify, he would invoke his right against self-incrimination. Over the defendant\u2019s objection, the court barred the witness from testifying. The appellate court held that the trial court did not err in barring the witness from testifying once he indicated that he intended to invoke his privilege against self-incrimination.\nIn our judgment, Cedillo is analogous authority for the procedure followed in this case. We see no material difference insofar as the defendant is concerned between striking testimony and barring testimony beforehand. Indeed, in this instance, the witness\u2019 invocation of his constitutional privilege inured to the benefit of the defendant. The jury could have concluded that Benson, rather than the defendant, was guilty of theft. (See People v. Miller (1980), 79 Ill. 2d 454, 404 N.E.2d 199.) We find no reversible error either in the procedure followed or in the order striking Benson\u2019s testimony.\nThe defendant next contends that the judge erred in granting the State\u2019s motion in limine, preventing the defendant from introducing three cancelled checks. The named payee on each check was Richard Bach; the drawer was purportedly the defendant. The checks were drawn on an account at the Chicago Heights National Bank in the name of \u201cHammond Enterprises, 201 East Sauk Trail, South Chicago Heights, IL.\u201d Two of the checks contained a notation indicating that the amount paid was for \u201cbackhoe work\u201d and contained the address \u201c3125 State.\u201d Two checks were dated October 22, 1985, and the other check was dated October 23, 1985. Each check was endorsed by a \u201cRichard Bach. \u2019 \u2019\nAt the hearing on the motion in limine, the defendant\u2019s attorney argued that the checks were being offered to show that a defense \"witness would testify that she recognized the signatures, received the checks from the defendant and gave them to Bach. The State said that it would not object to the witness testifying that she received the checks from the defendant and delivered them to Bach, but the State would object to the defendant putting the checks themselves before the jury.\nThe defendant argued that the checks were being offered to show that the defendant was not in possession of the stolen backhoe which had been recovered on the property. From the defendant\u2019s offer of proof it is clear that the checks were offered to show that Richard Bach had used the backhoe while working at 3125 South State Street, which a witness would later identify as the address of a building on the property other than the one in which the defendant was arrested. This evidence was offered for the purpose of establishing a fact \u2014 that Bach exercised dominion and control over the backhoe on the premises where it was recovered. The evidence, therefore, was hearsay, as the State maintained, and was properly excluded.\nThe judge denied admission of the checks on the additional ground that the proof that the backhoe was used by Bach, who did not live on the property, was irrelevant. The judge did not understand why the defendant was seeking .to introduce the checks. Neither do we. As we will show later, the defendant was trying to convince the jury that he did not live at 201 East Sauk Trail. Checks he signed on an account of \u201cHammond Enterprises, 201 East Sauk Trail\u201d would be strong corroboration of the other evidence the State introduced to establish that the defendant did live at 201 East Sauk Trail.\nThe defendant\u2019s last contention is that the State failed to prove his guilt beyond a reasonable doubt. The defendant\u2019s argument on this point is confusing. He argues that the evidence was insufficient because the court allegedly admitted improper evidence under the search warrant and because the court excluded the testimony of Benson and the checks which were purportedly given to Bach. For reasons we have already explained, there is no merit to this argument.\nThe defendant does not argue the sufficiency of the evidence to establish recent, exclusive possession of stolen property; rather, he makes only a passing reference to the fact that at the time of the offense other people allegedly lived on the premises. Although the argument could be deemed waived, we believe we should address the sufficiency of the evidence to establish that the defendant had recent, exclusive possession of the stolen property.\nIn order to support a finding of theft based on recent, exclusive possession of stolen property, it is sufficient to show that the defendant possessed the property jointly with others. (People v. Harris (1972), 53 Ill. 2d 83, 288 N.E.2d 873.) The required possession may be constructive and may be proved by circumstantial evidence. People v. Songer (1977), 48 Ill. App. 3d 743, 362 N.E.2d 1127.\nAfter he was arrested while wearing pajamas, the defendant told the police he wanted to \u201cgo to his bedroom to put on some clothes.\u201d (Emphasis added.) The police recovered three letters addressed to the defendant from a dresser in the bedroom. One was addressed to 201 East Sauk Trail, and two were addressed to 901 East Sauk Trail. The police also recovered a stolen automatic pistol on the floor near the foot of the bed. All of the stolen property, with the exception of the all-terrain vehicle, the snowmobiles and the backhoe, was recovered from the building in which the defendant was arrested. Murray identified the defendant\u2019s sister and his invalid 93-year-old father as the only other persons in the house from which the stolen property was recovered.\nBetty Hammond, the defendant\u2019s sister, testified that only she and her father lived in the house where the defendant was arrested and that three or four other families lived in another house. Benson lived over the garage. Other people boarded horses in the sheds. She said that the defendant was visiting their sick father the day the police arrived. She also testified that the proper address for the house was 3137 State Street. On cross-examination she admitted that 201 East Sauk Trail was the \u201cold address.\u201d\nBarbara Gray testified that she lived with the defendant at another address and that the defendant left that day to visit his sick father.\nLarry Barker, a mailman, testified in rebuttal that he delivered mail to a mailbox on the southwest corner of the intersection of Sauk Trail and State Street. The house was on the northwest corner. In that mailbox, Barker delivered mail addressed to 201 East Sauk Trail, 901 East Sauk Trail, 3125 State Street and 3137 State Street. Some of the mail was addressed to the defendant. The 900 block of East Sauk Trail is a farmer\u2019s field on the northeast corner of Sauk Trail and Cottage Grove. Although the record is confusing, the reasonable inference is that 901 East Sauk Trail was a mistaken address and that 201 East Sauk Trail was at least one of the correct addresses for the house in which the defendant was arrested.\nThe credibility of Betty Hammond and Barbara Gray was for the jury to determine. The jury obviously rejected their testimony and it is not our right to substitute our judgment for that of the jury. Betty Hammond\u2019s testimony that others lived on other parts of the property does not explain the presence of six separate items of stolen property recovered from the house to which the other persons did not have access. From all the circumstances, the jury could conclude beyond a reasonable doubt that the defendant lived in the house where he was arrested, that he had at least constructive possession of the stolen property and that he had at least joint possession of the stolen property. We judge that the evidence was sufficient to establish the defendant\u2019s guilt beyond a reasonable doubt.\nFor these reasons, the judgment of the circuit court is affirmed.\nJudgment affirmed.\nLaPORTA, P.J., and McNAMARA, J., concur.", "type": "majority", "author": "JUSTICE EGAN" } ], "attorneys": [ "Randolph N. Stone, Public Defender, of Chicago (Elizabeth Burke, Assistant Public Defender, of counsel), for appellant.", "Cecil A. Partee, State\u2019s Attorney, of Chicago (Inge Fryklund, Paula Carstensen, and Nancy Nolan Colletti, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DANNY HAMMOND, Defendant-Appellant.\nFirst District (6th Division)\nNo. 1\u201487\u20142741\nOpinion filed April 16, 1990.\nRandolph N. Stone, Public Defender, of Chicago (Elizabeth Burke, Assistant Public Defender, of counsel), for appellant.\nCecil A. Partee, State\u2019s Attorney, of Chicago (Inge Fryklund, Paula Carstensen, and Nancy Nolan Colletti, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0986-01", "first_page_order": 1008, "last_page_order": 1018 }