People v. Lyles

Case Date: 06/28/2002
Court: 1st District Appellate
Docket No: 1-00-1211 Rel

First Division

June 28, 2002


No. 1-00-1211 


THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
          Plaintiff-Appellee,  ) Cook County
)
                  v. ) 96 CR 21031
)
LUKAS LYLES, ) The Honorable
) Edward M. Fiala, Jr.,
         Defendant-Appellant.  ) Judge Presiding.

 

 

PRESIDING JUSTICE COHEN delivered the opinion of the court:

Following a jury trial, defendant Lukas Lyles was found guilty of first degree murder (720ILCS 5/9-1(a)(1) (West 1996)) and sentenced to 45 years in prison. On appeal, defendant contendsthat the weapons recovered from the back porch of his apartment should have been suppressed asthe fruit of an unjustified warrantless search of defendant's back porch. For the following reasons,we affirm.

BACKGROUND

Defendant's conviction arose from the fatal shooting of Paris Green. Defendant andcodefendants Doyle Hargrays and Darryl James were charged with first degree murder (720 ILCS5/9-1(a)(1) (West 1996)). The cases were severed but tried simultaneously. The evidence at trialestablished that shortly before midnight on July 16, 1996, Green was standing near the intersectionof 46th Street and Indiana Avenue in Chicago speaking to Emil Riley, who was sitting in the driver'sseat of a car. Riley testified that, while they were speaking, a car drove by and the occupants of thecar flashed gang signs. Shortly thereafter, Hargrays arrived in another vehicle. Hargrays and twoother individuals exited the car and began shooting. Riley, who suffered no injuries in the shooting,identified defendant as one of the shooters. Green suffered multiple gunshot wounds and died as aresult of a gunshot wound to the head.

Officer Nathaniel Hill, a gang tactical officer, testified that he was aware of an ongoing gangdispute in the area where Green was shot. Officer Hill arrived at the scene within 12 minutes afterthe shooting and observed approximately 20 to 25 people in the general area. Officer Hill walkedthrough the crowd and asked if anyone had witnessed the shooting. Officer Hill spoke to Emil Rileyand Ron Pendleton, who identified defendant as one of the offenders. According to Riley, threeindividuals were involved in the shooting. Riley told Officer Hill that the three individuals circledthe block several times in a "white maroon [sic] vehicle," displayed gang signs and finally exited thevehicle and started shooting. Riley and Pendleton provided Officer Hill with a physical descriptionof each of the three individuals. Riley described defendant as a male teen, approximately 5 feet tall. Pendleton told Officer Hill defendant was wearing a white T-shirt.

When Officer Hill spoke to Riley and Pendleton, he did not know that they and defendantbelonged to rival gangs. Two weeks prior to Green's shooting, a member of Pendleton and Riley'sgang shot defendant and at the same time killed a member of defendant's gang. According to OfficerHill, defendant was cooperating with the police investigation of that shooting, and Officer Hill knewwhere defendant lived. Officer Hill proceeded to defendant's apartment at 420 East 46th Street,approximately four to five blocks away.

Officer Hill and seven other officers sealed off the perimeter surrounding defendant'sbuilding. While Officer Hill was stationed in the alley behind the building, officers at the front ofthe residence told him they were knocking on defendant's front door. Officer Hill observed activityon the back porch but could not tell what was happening because it was dark. The officers at the rearof the building subsequently told Officer Hill that three subjects were coming down the back stairs. After defendant and codefendants were arrested in the backyard, the officers went up to the backporch of defendant's apartment and recovered two guns from a garbage can. According to OfficerHill, other apartments had access or back doors that opened onto the porch. Officer Hill testified thatthere appeared to be two apartments "on [sic] the top floor back porch." Officer Hill testified thathe did not know whether defendant's apartment was searched.

Officer John Lahori, a gang tactical officer, testified that on July 17, 1996, at approximately12:40 a.m., he was participating in the investigation of Green's shooting. As part of thisinvestigation, Officer Lahori hid at ground level under the first-floor back porch at defendant'sapartment building along with another gang tactical officer, Officer Milton Seaton. Officer Lahoriwas notified that additional officers entered defendant's apartment after knocking at the front door. Officer Lahori then heard some "footsteps on the porch area, some rumbling around." Officer Lahorileft his position under the porch and waited with Officer Seaton outside the ground-level stairwaydoor. Officer Lahori heard a total of two doors open. According to Officer Lahori, defendant andthe two other men were arrested after they exited the stairwell into the yard. Officer Lahori thenascended the stairwell to the second-floor porch area.

Officer Lahori testified that he saw "a table [and] a bunch of stuff on the back porch ***[and] kind of looked around on the back porch that was directly by the back door of [defendant's]apartment." Officer Lahori recovered "[t]wo 9-millimeter handguns, a couple of 30-round clips anda lot of ammunition" from a garbage can that was "approximately three feet away from the rearentrance to [defendant's] apartment on the back porch." Officer Lahori placed the weapons in a clearplastic bag so that he would not contaminate any fingerprints that might have been on the weapons.

At trial, the State introduced a photograph of the back of defendant's apartment building intoevidence. Officer Lahori testified that the photograph accurately reflects how the rear of defendant'sapartment building appeared in July 1996, except that "[i]t seems to be a little more remodelingdone." Officer Lahori did not indicate what remodeling appeared to have been done. Thephotograph depicts a brick three-story walk-up. On the second and third floors, a door led from thebuilding to a wooden exterior porch that is protected on each exposed side by a wooden balustrade. No door from the first-floor residence to the first-floor back porch is visible in the photograph. Anenclosed structure, apparently housing the stairwell, is visible directly adjacent to the porches. Noaccess to this structure-either from the building or the ground floor exterior-is visible in thephotograph. A chain-link fence borders the property on both sides of the building and at the alley. The photograph does not reveal whether any door or other barrier separated each porch from theenclosed stairwell.

Officer Seaton testified that he had known defendant for years and that he was aware thatdefendant had been shot prior to July 16, 1996. On July 16, 1996, Officer Seaton went to defendant'sresidence at approximately 1 a.m. While other officers secured the perimeter of the building, OfficerSeaton hid along with Officer Lahori under the back porch. Defendant, James, and Hargravesubsequently went down the back stairs and were arrested after they exited the back stairway throughthe ground-level door. Officer Seaton "vaguely recall[ed]" attempting to open the ground-level doorto access the back stairs and believed it was locked. Officer Lahori testified that defendant and hiscompanions unlocked the door when they exited the stairwell. Two guns were subsequently foundinside a garbage can on the upstairs porch. Officer Seaton believed that defendant's apartment wasin a three-story building and "guess[ed]" that three flights of stairs led to the porch where the gunswere retrieved. Officer Seaton did not recall whether other apartments had back doors that enteredonto the porch.

Chicago police officer Ronnie Edmond testified that he and Officer Hill arrived at the sceneof the shooting at approximately 12:15 a.m. Thirty minutes later, Officer Edmond went with otherofficers to defendant's residence. After the three individuals were arrested, Edmond and severalother officers searched defendant's apartment. Officer Edmond "believe[d] [he] searched thebedroom, the dining area and also *** around on the rear porch." He was on the porch with OfficerLahori when the weapons were recovered, but he could not recall if they were in a garbage can.

At trial, Robert Berk, an analyst with the State Police crime lab, testified that he analyzed agunshot residue kit which included swabs taken from both of defendant's hands on the night of theshooting. Based upon his analysis, Berk opined that on the night of the shooting defendant hadeither handled a discharged weapon, fired a weapon or was in close proximity to a dischargedweapon.

The parties stipulated that James Vantilburg, an expert in the field of firearms identificationwith the Chicago police department, received and examined items that were recovered fromdefendant's back porch and would testify that the chain of custody was complete and proper. Vantilburg received one Taurus 9-millimeter semiautomatic weapon, one Glock 9-millimetersemiautomatic weapon, a clip for a 9-millimeter semiautomatic weapon, 55 bullets of 9-millimetercaliber, six .38-caliber bullets, and nine fired 9-millimeter casings. Vantilburg would testify that fiveof the nine casings that were recovered from the crime scene were fired from the 9-millimeter Glockthat was recovered from defendant's porch to the exclusion of every other gun in the world..

Prior to trial, defendant filed a motion to quash his arrest and suppress evidence. Defendantdid not argue in this motion that the warrantless search of the back porch of his apartment wasimproper. Instead, defendant argued that the police lacked probable cause to arrest him and theevidence recovered was the fruit of the illegal arrest. Following the hearing, the trial court denieddefendant's motion. The trial court found that the officers had a right to detain defendant and thatOfficer Lahori had "the right to then go up the stairs for the purpose of either preserving the evidenceor protecting evidence *** he, in fact, found the weapons *** in fact, plain view."

On May 17, 1999, defendant was found guilty of first degree murder. On June 4, 1999,defendant filed a motion for a new trial, which was denied by the trial court. Defendant's posttrialmotion did not challenge the legality of the warrantless search of the back porch of his apartment. Following a sentencing hearing on August 3, 1999, defendant was sentenced to 45 years in prison. The trial court allowed defendant to file his appeal nunc pro tunc on March 30, 2000, because theoffice of the State Appellate Defender was never notified of its appointment.ANALYSIS

On appeal, defendant contends that the police improperly searched the rear porch of hisapartment without a warrant and asserts that the weapons recovered from the porch should have beensuppressed. Generally, an issue not raised during trial and renewed in a timely posttrial motion iswaived for purposes of appeal. People v. Enoch, 122 Ill. 2d 176, 186-88 (1988). Defendantconcedes that because he did not challenge the legality of the warrantless search of his back porcheither at trial or in his posttrial motion he has waived review of this issue. Defendant asks that wenonetheless review the alleged error as plain error under Supreme Court Rule 615(a) (134 Ill. 2d R.615(a)). In the alternative, defendant argues that his trial counsel was constitutionally ineffectivefor failing to challenge the warrantless search. The State argues that defendant did not have aprotectable privacy interest in his back porch and defendant therefore cannot establish either plainerror or ineffectiveness of counsel.

To prevail on a claim of ineffective assistance of counsel, the defendant must establish that:(1) counsel's performance was deficient because counsel made errors "so serious that counsel wasnot functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment" and (2) counsel'sperformance in fact prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 80 L.Ed. 2d 674, 693, 104 S. Ct. 2052, 2064 (1984). See also People v. Albanese, 104 Ill. 2d 504, 526(1984) (adopting Strickland). A court of review need not address both prongs of the Strickland testwhere the defendant's claim is defeated on one prong. People v. Williams, 215 Ill. App. 3d 800, 811(1991), citing Strickland, 466 U.S. at 697, 80 L. Ed. 2d at 699, 104 S. Ct. at 2069; see also Peoplev. Jones, 323 Ill. App. 3d 451, 459 (2001).

In People v. Hunley, 313 Ill. App. 3d 16, 23-24 (2000), this court held that a defendant hadno reasonable expectation of privacy in the back porch of a multi-unit dwelling where: (1) the porchwas not closed off by any doors, screens or gates; and (2) no evidence was presented that the policedeliberately avoided the locked front gates to enter the unlocked back yard. Hunley, 313 Ill. App.3d at 23-24. In People v. Smith, 152 Ill. 2d 229 (1992), our supreme court held that a defendant didnot possess a reasonable expectation of privacy in an unlocked residential common area that wasshared by other tenants. Smith, 152 Ill. 2d at 243, 245-46. Although the courts in Hunley and Smithboth suggest in dicta that a tenant might have a reasonable expectation of privacy in a lockedcommon area (Smith, 152 Ill. 2d at 246; Hunley, 313 Ill. App. 3d at 23), both this court and oursupreme court have yet to directly rule on this issue.

The Fourth District of our appellate court has noted that "federal cases have indicated thatthe common areas of a locked apartment building are protected under the fourth amendment." People v. Trull, 64 Ill. App. 3d 385, 389 (1978), citing, inter alia, United States v. Case, 435 F.2d766 (7th Cir. 1970). Relying on this federal precedent, the Fourth District concluded that "thecommon areas of a locked apartment building are protected under the fourth amendment." Trull, 64 Ill. App. 3d at 389.

More recently, however, the Seventh Circuit Court of Appeals in United States v.Concepcion, 942 F.2d 1170 (7th Cir. 1991), held that a tenant had no reasonable expectation ofprivacy in the common areas of a locked apartment building and, to the extent Case held otherwise,Case has not "survived changes in the Supreme Court's definition of protected privacy interests." Concepcion, 942 F.2d at 1172. Indeed, the Second, Eighth and Ninth Circuits of the federal courtof appeals have likewise held that tenants do not have a reasonable expectation of privacy in thecommon areas of their apartment building, even if the door to the apartment building itself is locked. See United States v. Barrios-Moriera, 872 F. 2d 12, 14-15 (2d Cir. 1989), overruled on othergrounds by Horton v. California, 496 U.S. 128, 110 L. Ed. 2d 112, 110 S. Ct. 2301 (1990); UnitedStates v. Eisler, 567 F. 2d 814, 816 (8th Cir. 1977); United States v. Nohara, 3 F.3d 1239, 1242 (9thCir. 1993). See also United States v. Miravalles, 280 F.3d 1328, 1329, 1333 (11th Cir. 2002) (noreasonable expectation of privacy where the lock on the front door of the apartment building was notworking on the day the police entered the building). Following this more recent authority, we holdthat a tenant has no reasonable expectation of privacy in common areas of an apartment building thatare accessible to other tenants and their invitees.

Here, the record demonstrates that the staircase in question not only led to defendant's porchbut also provided other tenants access to their porches. The staircase was thus a common area inwhich defendant had no reasonable expectation of privacy. Further, there is no evidence that anydoor or other barrier separated defendant's porch from the common staircase. Accordingly, weconclude that defendant had no reasonable expectation of privacy in his back porch. See Hunley,313 Ill. App. 3d at 23-24.

Because the search of defendant's back porch did not implicate defendant's fourth amendmentrights, defendant was not prejudiced by his trial counsel's failure to challenge the warrantless searchof his back porch. We will not find that a defendant was deprived of effective counsel unlessdefendant has established sufficient prejudice resulting from counsel's alleged errors. Albanese, 104Ill. 2d at 527. Further, because defendant's fourth amendment rights were not violated, admissionof the weapons into evidence was not error. Because there was no error, defendant's assertion ofplain error clearly fails.

CONCLUSION

For the foregoing reasons, the judgment of the circuit court is affirmed. Pursuant to Peoplev. Rogers, 286 Ill. App. 3d 825, 832 (1997),we grant the State's request for $100 in costs fordefending this appeal.

Affirmed.

TULLY and COUSINS, JJ., concur