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People v. Olmos

OPINION FILED SEPTEMBER 24, 1979.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

JOSE D. OLMOS, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. ROBERT COLLINS, Judge, presiding.

MR. PRESIDING JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:

After a bench trial, Jose D. Olmos (defendant) was found guilty on two counts of delivery of a controlled substance (Ill. Rev. Stat. 1975, ch. 56 1/2, par. 1401(c)) and unlawful use of weapons (Ill. Rev. Stat. 1975, ch. 38, par. 24-1(a)(4)). He was sentenced to 1 to 5 years on the controlled substance charges and 364 days on the weapons charge. Defendant appeals.

Christine Kolman, an undercover police officer, testified she met defendant on September 17 or 18, 1975. Officer Kolman and defendant had a conversation concerning drugs. Defendant stated, "I have acid and I have a contact for tic [PCP]." Defendant also told her, "I can get you any amount of tic you want." The officer told defendant she had $3000 to spend on drugs. Defendant told Officer Kolman to call him back at a later time.

Officer Kolman called defendant on September 23, 1975. He told her he would get in touch with his contact for drugs and she should call him back the next day. Defendant then informed the officer she could receive two ounces of tic or PCP and between 300 and 400 "hits" of acid for $3000.

The officer again called defendant on September 24. He told her he had reached his contact and he could deliver the drugs later that day. He told Officer Kolman to meet him at a designated restaurant in Chicago at about 4 p.m.

The officer went to the restaurant as instructed. She was accompanied by six other police officers serving as backup undercover officers. Defendant arrived and told her delivery would have to be postponed another day.

Officer Kolman called defendant on September 30. He told her he had made his contact and asked her to call again the next day. Defendant told her "I talked with him and I am pretty sure I could have it for you tomorrow." The officer called defendant on October 1. Defendant told her "he had two ounces of PCP and the three hundred forty hits of acid for $3,000." Defendant told her to meet him at the same restaurant at 4 p.m. that day.

The officer went to the State's Attorney's office to get the $3000. She photocopied each bill and signed her name on each of the copies. The copies were all time stamped. She then went to the restaurant as arranged, once again accompanied by other officers.

Defendant arrived with a previously unknown male later identified as Edward Kalous. Defendant introduced Kalous as his friend "Woody." The three sat in the restaurant for a few minutes and then left the building and got into Kalous' car. The two men sat in the front seat and the officer was in the rear. Kalous said to Officer Kolman, "If you have the money we've got the stuff." The officer replied, "Yes, I have the money." Defendant told Kalous, "Give her the stuff." Defendant then said, "We have all of the PCP and acid you can use." Kalous gave Officer Kolman two plastic bags containing a white powder and plastic medicine bottles and tinfoil packets containing pills. The white powder was identified at trial by an evidence technician as 53.54 grams of phencyclidine or PCP and the tablets as 2.44 grams of lysergic acid diethylamide or LSD.

Defendant told the officer she could check the drugs. She said, "No. I trust you." Officer Kolman placed the contraband in her slacks. Kalous then said, "Where is the money?" The officer said, "It is in the trunk of my car." Kalous said, "Go to the car with her and get the money." The officer left the car with the defendant. They walked over to her car. She took the $3000 out of a brown paper bag in the trunk and handed it to defendant. At that time, the backup team responded to a signal from Officer Kolman. They came up and made the arrest.

Officer Louis Alvizu testified he was present at the restaurant on September 24 when Officer Kolman met with defendant. He was also present on October 1. He saw Officer Kolman hand the money to defendant. He placed defendant under arrest on said date. While searching defendant he found a loaded .32-caliber revolver under defendant's left arm.

The defendant testified that, after meeting Officer Kolman, she told him she liked tic and asked if he could get her some. She called him at least 15 times. She begged him to secure drugs for her. He told her he could not get her any narcotics. He testified he did not know what "tic" was. He further testified he did not see Kalous give Officer Kolman anything on October 1. Moreover, he himself did not give anything to the officer. When he left the car with her she opened the trunk of her automobile and handed him the money and told him to give it to Kalous. He also testified that he left the officer and Kalous seated together in the restaurant for about one minute while he went to get cream and sugar for his coffee. Defendant denied he had arranged with Kalous to deliver narcotics and denied he delivered any narcotics to Officer Kolman.

Defendant contends the trial court committed reversible error when it allowed into evidence over his objections the hearsay statements and conduct of Edward Kalous. He further contends the sentence imposed was excessive and grossly disparate from that imposed upon co-defendant Kalous.

• 1, 2 The State contends "any statement made by Edward Kalous was the statement of one conspirator during the course of and in furtherance of the conspiracy and therefore was properly admitted by the trial court as an exception to the hearsay rule." Section 8-2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, par. 8-2) provides, "[a] person commits conspiracy when, with intent that an offense be committed, he agrees with another as to the commission of that offense." Many years ago this court held, "[a]s soon as the union of wills for the unlawful purpose is perfected, the ...


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