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People v. Agosto





APPEAL from the Circuit Court of Cook County; the Hon. FRANK MACHALA, Judge, presiding.


Defendant, Felipe Agosto, was charged by information with the unlawful delivery of a controlled substance. (Ill. Rev. Stat. 1975, ch. 56 1/2, par. 1401(b).) After a jury trial in the circuit court of Cook County, defendant was found guilty and sentenced to a term of five to 15 years in the penitentiary. On appeal, defendant raises four issues for our consideration: (1) whether he was proved guilty beyond a reasonable doubt; (2) whether the trial court improperly limited the defense's cross-examination of the State's witnesses; (3) whether certain comments by the prosecutor during closing argument were prejudicial; and, (4) whether the sentence imposed was excessive.

We affirm the judgment of the trial court.

Defendant was charged with selling heroin to Chicago Police Officer Ricardo Aereu. On November 18, 1976, Officer Aereu was assigned to make undercover purchases of controlled substances. Three additional policemen, Investigators Philip Cline and Thomas Neustrom and Officer Terence O'Connor, were assigned to work in conjunction with Aereu.

At trial Aereu testified that he approached defendant in a snack shop in the 3900 block of Sheridan Road, Chicago, and during their conversation told defendant that he was interested in purchasing a bag of heroin. The defendant agreed to sell him the heroin for $30. Aereu and defendant proceeded to a nearby tavern where defendant went inside and immediately returned with Victor Mardeci. From there the three men walked about one block to the Carlos Hotel. Outside the hotel, Aereu handed defendant $30 and then waited while defendant and Mardeci went inside. Approximately five minutes later, defendant and Mardeci returned and Mardeci handed Aereu a packet of a substance later identified at trial by a Chicago Police Department chemist as heroin. Having completed the transaction, Aereu went to meet his three partners at a pre-arranged location.

When Aereu made the purchase on November 18, 1976, he knew defendant only by the name of "Boogaloo," but, thereafter, Aereu learned defendant's actual name. Aereu encountered defendant on two additional, separate occasions before defendant's arrest on November 29, 1976. During this period of time Aereu continued to work undercover and made three or four additional purchases of controlled substances in the same area.

Aereu described the man from whom he purchased the narcotics as about 35 years old, 145 pounds, 5 feet 6 inches tall, wearing brown hair in an afro style. Aereu said the man was attired in a blue jacket and brown pants and did not have a moustache but may have had a goatee. Aereu positively identified defendant as this man.

Investigator Cline testified that on November 18, 1976, he was assigned to cover Aereu to ensure his safety and to witness any drug purchases which Aereu transacted. Cline stated that from a gas station across the street he observed Aereu enter the snack shop and, through a large picture window, could see Aereu conversing with a man Cline identified in court as the defendant. Cline described this man as approximately 30 to 32 years old, 160 pounds, 5 feet 8 inches tall, with dark brown or black, medium length hair. The man was wearing a blue jacket and brown pants. The only noticeable feature he observed was a ruddy complexion.

Cline observed the two men leave the snack shop and go to the tavern where they were joined by Victor Mardeci. From the opposite side of the street, at a distance of approximately 80 feet, Cline watched the men walk to the Carlos Hotel and observed the drug transaction. After Aereu completed the purchase, Cline left his vantage point to rendezvous with his partners. At that time, Cline field tested the contents of the bag purchased by Aereu and identified the presence of opium. Cline then transported the bag to the police station.

Investigator Neustrom testified that on November 18, 1976, he was assigned to work with Aereu, Cline and O'Connor. Neustrom was then questioned regarding the chain of custody of the bag of heroin purchased by Aereu from 9 p.m. on November 18, 1976, through testing procedures at the police crime lab and until the time of trial. On cross-examination defense counsel attempted to ascertain Neustrom's activities at 8:30 p.m. on the night in question. The State objected to this line of questioning as being outside the scope of direct examination and the trial court sustained the objection.

The only evidence presented by the defense was one photograph of the defendant taken on November 30, 1976, in which defendant is wearing a moustache but no goatee. In rebuttal, the State called Larry Goldberg, the manager of the Carlos Hotel. Goldberg testified that he had known defendant for several years and that defendant usually wore a moustache; however, he could not state whether defendant had a moustache on November 18, 1976.

The jury returned a verdict of guilty and the trial court entered judgment accordingly. At the sentencing hearing, the State introduced evidence of defendant's three prior convictions for drug-related felonies and a fourth felony conviction. In mitigation, the defendant delivered a personal statement, professing his innocence. The trial court sentenced defendant to five to fifteen years imprisonment and the defendant proceeded with this appeal.


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