APPEAL from the Circuit Court of Putnam County; the Hon.
ALBERT PUCCI, Judge, presiding.
MR. JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:
After a jury trial the defendant, Jerry Lucas, was convicted of the crimes of delivery of a controlled substance and calculated criminal drug conspiracy. He was sentenced to not less than one nor more than three years of imprisonment on the delivery count, and not less than four nor more than twelve years on the calculated criminal drug conspiracy count, the sentences to run concurrently.
The primary issue on this appeal is whether the evidence was sufficient to prove the defendant guilty beyond a reasonable doubt of the crime of calculated criminal drug conspiracy. More specifically, we must decide whether the evidence was sufficient to prove beyond a reasonable doubt that Lucas "organized or directed" a conspiracy to deliver a controlled substance.
The People concede that it was error to convict and sentence on both the offense of delivery of a controlled substance and the offense of calculated criminal drug conspiracy because both offenses arose from the same conduct. If, therefore, the conviction for calculated criminal drug conspiracy is affirmed, the conviction for delivery of a controlled substance must be reversed. On the other hand, if the conviction for calculated criminal drug conspiracy is reversed, the conviction for delivery of a controlled substance must be affirmed.
The charges against defendant are based on a transaction between an agent of the Illinois Bureau of Investigation and one Pauley Gama, and the events leading to that transaction. The evidence against Lucas consisted of testimony by William Barrett, Special Agent with the Illinois Bureau of Investigation, David Krug, Special Agent with the United States Treasury Department, and Chris Heart, another Treasury agent.
Barrett and Krug testified that during the period in question they were assigned to the La Salle, Putnam and Bureau County area, conducting a narcotics investigation. On the evening of August 9, 1973, while operating undercover, they met Steve Nelson and Jerry Lucas, with whom they were previously acquainted, in a park in the La Salle area. At that time Lucas and Nelson both confirmed that a meeting with Pauley Gama had been arranged for 10 p.m. that evening at the Tropics Bar concerning a cocaine purchase the agents wanted to make.
Barrett was unable to say whether it was Lucas or Nelson who first raised the subject of that meeting, or which of them had actually contacted Pauley Gama to make the arrangements. He testified that both Lucas and Nelson had told him on a number of previous occasions that Pauley Gama was the person to deal with, and that Lucas had probably been the first to offer to arrange a meeting. Krug testified that he did not get into the conversation, and knew only that Barrett, Lucas and Nelson discussed drugs and a man named Pauley.
Lucas denied he ever offered to arrange a meeting with Gama, and denied arranging this meeting. He stated that Steve Nelson and Junior Lucas (a confidential informer unrelated to defendant) had told Jerry Lucas before the meeting in the park that a "coke" deal between Barrett and Gama was in the making. When they met Barrett and Krug in the park, Barrett told Lucas that a meeting had been arranged with Gama that evening in the Tropics Bar in Ottawa, and asked Lucas to come along because Gama knew him and would accept Barrett more readily if he came with a familiar face. Lucas testified that he agreed to go along.
Barrett and Krug stated that they arrived at the Tropics Bar at approximately 10 p.m. on August 9 with the confidential informer. Nelson and Lucas were already there, and Pauley Gama arrived shortly thereafter.
Barrett testified that Nelson introduced both agents to Gama and that Nelson began the conversation with Gama by stating that the agents wished to purchase cocaine. Barrett asked Nelson about the price and Nelson related the question to Gama. The price of $1300 was mentioned, Gama made a phone call, and then indicated that the lowest he could go was $1400. Barrett asked Nelson and Lucas about the quality of the coke and they both indicated they had both tried it and would vouch for the quality.
Gama then asked if Barrett and Krug were definitely interested and Barrett indicated they were. According to Barrett, Gama asked where they could meet to complete the transaction, and at that point Lucas spoke up and said they could meet at his house, which was in a rural setting where they "wouldn't catch any heat." Barrett and Gama agreed.
Lucas testified that he was present at the meeting in the Tropics Bar; that he took no part in the conversations; that there was a jukebox playing and he could hear only bits and pieces of the conversation; and that the extent of his conversation with Gama was to say "hi" when Gama arrived. He stated that at some point Barrett asked him if the cocaine was good and he assured him that it was. Lucas denied volunteering his house as the place where the transaction could occur. He stated that the confidential informer, who was sitting next to him in the bar, suggested that they use his place and that he agreed that this would be all right. He denied ever saying that his house would be a good place because it wouldn't catch any heat, and asserted that the expression "heat" went out with the roaring twenties.
Barrett, Krug and Heart testified that they and the confidential informer arrived at Jerry Lucas' house at approximately 1:30 p.m. on August 10. Gama had not yet arrived, and after waiting about 45 minutes, the agents became impatient and said they were leaving. Lucas made a call to Gama, but received no answer. At about 2:20 p.m., the agents began to leave, acting perturbed that Gama had not shown. Lucas began to apologize when the telephone rang. He answered it and told the agents that it was Gama and that he would be there in about 30 minutes.
Gama arrived at about 3:40 p.m. with one Joseph Diaz and announced that he was in a hurry to transact the deal. The group, consisting of Lucas, Barrett, Krug, Heart and the confidential informer, had been standing around in the front yard when Gama arrived. Barrett and Gama stepped away from the group. Gama ...