APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
L. SKLODOWSKI, Judge, presiding.
MR. JUSTICE HARTMAN DELIVERED THE OPINION OF THE COURT:
A jury convicted defendants Frank Vincent, also known as Stanley Miller, and Richard Jenkot of calculated drug conspiracy and conspiracy for their trafficking in a controlled substance, phencyclidine (PCP). Vincent was sentenced to the penitentiary for 10 to 30 years for calculated drug conspiracy and 6 to 18 years for conspiracy, the sentences to run concurrently. Jenkot received a 10- to 30-year penitentiary sentence for calculated drug conspiracy and a 5- to 15-year sentence for conspiracy, also to run concurrently. A third co-conspirator, Edward Vaisvilas, pled guilty and testified for the State in exchange for the State's recommendation that he be given a 2- to 6-year penitentiary sentence. Vincent and Jenkot appeal, assigning as errors the admission of certain prejudicial evidence; giving of an erroneous instruction to the jury; restrictions placed upon defense counsel in closing argument; failure of proof as to Jenkot's involvement in the conspiracy; and several sentencing errors. For the reasons which will later appear, we affirm in part and reverse in part, and vacate the conspiracy sentences imposed on Vincent and Jenkot.
The State's principal witness at trial was Sergeant Terry McCue of the Chicago Police Department. McCue testified that he was assigned in early 1976 to the Area 3 Youth Division and worked undercover on narcotics cases. He first saw Jenkot in a West Grand Avenue tavern on January 28, 1976. He told Jenkot that he was interested in buying "quantities" of PCP. Jenkot told McCue he had access to "multiple ounces of PCP and almost any kind of drug" McCue might want, and gave McCue his telephone number. On February 12, 1976 McCue saw Jenkot in the same tavern in company with Edward Vaisvilas. McCue offered to purchase two ounces of PCP from Jenkot, which the latter said he could "do," for $1,400. Vaisvilas added that the people he dealt with could "do large quantities." McCue responded that "his guy" could buy a minimum of one-quarter to one-half pound of PCP.
Twice thereafter McCue contacted Jenkot and offered to buy one ounce of PCP. The first time, on February 13, Vaisvilas met McCue and sold him one ounce of PCP for $700, outside a restaurant at Belmont and Western Avenues. On March 2, Jenkot himself sold McCue an ounce of PCP for $700 at Cicero Avenue and 22nd Place in Cicero, Illinois. On March 6, 1976, McCue testified, he told Vaisvilas that he was in contact with "large quantity" buyers and wanted to talk directly with Vaisvilas' "guy." Vaisvilas telephoned McCue on March 7 from his "guy's" house on a telephone conference hookup. McCue stated that he knew a group of people who were interested in trading a trailer full of Zenith television sets for five pounds of PCP. The voice of an unidentified male asked McCue how many television sets were involved and where the deal would take place. He then advised McCue that he would get back to him. On March 12 McCue again met with Jenkot and Vaisvilas. Jenkot asked McCue for $500 in return for having made arrangements for previous narcotics purchases and as an advance on a future deal that McCue was there to arrange, but McCue told him he would be taken care of when "the big deal went down." Prices for narcotics were discussed by the participants at this meeting as well as their failure to get together on the television set deal.
On March 23, McCue called Vaisvilas for a meeting and he, DEA *fn1 Special Agent Pat Collins, Jenkot and Vaisvilas met, ultimately going to the basement premises of a vault company located in a downtown building. There McCue removed a safety deposit box containing DEA money amounting to $50,000 in $100 bills. McCue told Jenkot and Vaisvilas that the $50,000 was his "guy's" money and that they were ready to "go." Vaisvilas responded, "dynamite." Jenkot then asked McCue for $500. McCue responded that Jenkot would be taken care of later. Vaisvilas agreed to sell four pounds of PCP in one-half-pound transactions, but McCue wanted to complete the sale in two steps. They parted with Vaisvilas telling McCue he would contact him after talking to his "guy." On March 29, McCue called Vaisvilas and said he was ready for a four-pound PCP buy. Vaisvilas took his telephone number and 20 minutes later a man identifying himself as "Sonny" called McCue at that number. McCue recognized the voice as that of the man he had spoken with during the conference call on March 7. Sonny said they "would do eight ounces a time up to four pounds" and that McCue "would call the shots." The deal was to be made through Vaisvilas, but Sonny would be close by. That evening, Jenkot called McCue and asked when the deal "was going down," and McCue responded the next day.
On the morning of March 30, McCue continued, he called Vaisvilas, who said they would "do a pound," an amount he said he thought had been worked out between McCue and Sonny. At 11 a.m., Vaisvilas called McCue and told him his "guy" was on his way in from McHenry and for McCue to get the money and meet at Vaisvilas' apartment. McCue later asked Vaisvilas to call Sonny for instructions as to the exact amount of money he was to bring. Vaisvilas agreed and asked McCue not to tell Jenkot that the deal was going down that day, because Jenkot was "whacked" and had been arguing with his "guy." Thereafter, McCue and other officers and special agents, including Collins and DEA Special Agent Kenneth Labik, prerecorded $10,000 in $100 bills for use in the transactions. At 12:15 p.m., Sonny called McCue and told him to bring enough money for "one" today. McCue, Collins and Labik went to meet Vaisvilas at his apartment. McCue and Collins went inside and, after discussion as to how the money was to be paid and the narcotics transferred, Collins went down to the car to Labik, ostensibly acting as McCue's "guy," and returned with $5,000 as "front" money, the $5,000 balance to be paid near the exchange site.
Vaisvilas and McCue left the apartment, according to McCue, entered the former's white van and were followed by Collins and Labik in McCue's undercover vehicle. They drove to the Eisenhower Expressway, then west to the Central Avenue exit ramp where they stopped. McCue alighted from the van telling Vaisvilas that he would wait in his car with the others on the opposite side of the expressway. Vaisvilas drove off in the van. After 15 or 20 minutes, he returned to where McCue was waiting with the others in the undercover vehicle. McCue left his car and walked toward the van. Vaisvilas showed him a cardboard box filled with plastic bags containing crystalline substances later identified as PCP. Vaisvilas removed the cardboard box from the van and, together with McCue, began walking back toward the undercover car. As they walked, a silver, four-door Lincoln Continental passed by, moving slowly, and Vaisvilas told McCue, "[t]here's my guy now. I got to meet him when I get the other half of the money." McCue identified the lone occupant in the Lincoln as defendant Vincent.
McCue and Vaisvilas then got into the undercover vehicle with the box of narcotics. McCue announced his office and placed Vaisvilas under arrest. A search failed to turn up the $5,000 given to Vaisvilas either on his person or in his van. McCue then drove the van onto the Eisenhower Expressway eastbound toward the Loop. At a point between 4900 and 4800 west, he stopped and observed other people stopped and coming out of their cars, citizens whose identities he did not know, running around and picking up $100 bills from the highway. He saw Chicago Police and DEA officers in the vicinity retrieving money. He observed passengers and crew getting off a CTA train which had stopped nearby, pick up some money, and jump back on the train which then left. He got back in the van and proceeded to the Federal Building where he again saw defendant Vincent under arrest. Agents Collins and Labik testified in substantial corroboration of so much of the evidence given by McCue as involved them.
Chicago Police Officer Lou Alvizu testified that he was assigned to assist McCue in a narcotics investigation on March 30, 1976. In the vicinity of Central Avenue and the Eisenhower Expressway, he observed McCue's parked undercover vehicle. He saw a silver Lincoln Continental move by the undercover vehicle at a slow pace. He drove his own automobile alongside the Lincoln. As he did so, the driver turned, looked at him, made an immediate right turn onto the Eisenhower eastbound and accelerated to speeds from 70 to 80 miles per hour. Alvizu followed and when they reached a point in the vicinity of 4800 west and his car was about five feet behind the Lincoln, he observed Vincent open his window, extend his left arm outward and release a quantity of money into the air. Alvizu thereafter curbed the Lincoln and assisted in Vincent's arrest.
Chicago Police Sergeant Bruce Carter, on the same assignment, testified that he also arrived at the Eisenhower Expressway scene in time to see Vincent throw money out of his automobile window. He assisted in Vincent's arrest along with his partner, Officer Marilyn Bucey. When Carter told Vincent that he (Carter) could not have thrown the $5,000 out of the window, Vincent stated that it was the "hardest decision he ever had to make."
DEA Special Agent William Morley, on surveillance assignment on March 30, testified that he saw Vaisvilas carry a brown package from a silver Lincoln Continental to a white van in the vicinity of Central and Roosevelt Road. Both vehicles then proceeded to the Eisenhower Expressway at Central. The white van stopped near the undercover police vehicle. The Lincoln proceeded at high speeds onto the Eisenhower Expressway. Morley observed Vincent release a quantity of bills from his car. Morley participated in gathering the money from the expressway with other officers. In all, they recovered thirty-four $100 bills, which he returned to his office. He compared the serial numbers of the recovered bills with the list of prerecorded $100 bills given to McCue for purchase of the PCP, and all 34 recovered bills had been so recorded.
DEA Special Agent Steven Casteel, equipped with binoculars and assigned to surveillance from a helicopter on March 30, observed the silver Lincoln Continental intermittently that day. He stated the he first saw the automobile in the morning near U.S. Highway 12 at Volo, Illinois; next as it proceeded southward on Route 12 to Cicero, Illinois; thereafter as it entered Roosevelt Road and was parked in the 5700 west block; and later, when it parked further east on Roosevelt near Central Avenue, next to a white van. Casteel observed a person alight from the van and enter the Lincoln on the passenger side. He saw the Lincoln proceed down several side streets and then stop in an alley. The driver, who wore a multicolored T-shirt, left the Lincoln, opened the automobile trunk, removed a small brown object therefrom, and reentered the Lincoln. The Lincoln was thereafter driven back to the white van, where the passenger got out and returned to the van. The van was then driven to a location near Central and the Eisenhower Expressway. The Lincoln thereafter entered the expressway at high speeds, later pulling off to the side. All traffic on the expressway came to a halt in that vicinity.
Chicago Police Officer Frank Geraci, assigned to surveillance duty on March 30, testified that he saw Vincent emerge from a house in Elk Grove Village, together with a man and a woman. Vincent placed a cardboard package in the trunk of his Lincoln and drove to the vicinity of West Roosevelt Road, dropping off the male passenger at 58th Street and the female passenger on South Central Avenue. The car was then driven to the 5800 block of West Roosevelt Road where it was parked. Geraci saw Vincent enter a tavern near there, and thereafter saw him leave, at about 2:30 p.m.
Edward Vaisvilas, one of the three co-defendants, testified for the State. He sold PCP from December, 1975 until March 30, 1976. He corroborated much of the testimony given by McCue and other of the State's witnesses, and added certain information. At Jenkot's direction, he sold one ounce of PCP, previously secured from Vincent, to McCue on February 13 for $700. He gave Vincent $600 from McCue's payment, and $50 to Jenkot. He knew Vincent as "Sonny." When he told Vincent of McCue's proposed stolen television set transaction, Vincent told him to get McCue's telephone number and come to Vincent's home in Elk Grove Village the next day from which they woud call McCue. They did so the next day and McCue asked Vincent if he coud get rid of the television sets and that he wanted $45,000 for them. Vincent declined.
Vaisvilas, with Jenkot, next met McCue on March 23 and, at McCue's invitation, they went to a vault and observed $50,000 in a safety deposit box. At this time, Jenkot agreed to deliver four or five pounds of PCP to McCue for $50,000; Jenkot wanted to set up the deal. On March 27 and again on March 29, Vaisvilas had conversations concerning the transactions with McCue by telephone. After the latter conversation, Jenkot told Vaisvilas that McCue's telephone number checked out to a tavern across the street from a police station at Belmont and Western Avenues. He asked Vaisvilas not to give Sonny this information because he would get "all shook up" and "screw everything up." On the next morning, Vaisvilas called McCue and asked him to leave Jenkot out of the mechanics of the final deal because Jenkot had a tendency to get "whacked," but to give him his $1,000 share anyway.
After substantially corroborating McCue's description of the events that took place at his apartment on the morning of March 30, Vaisvilas testified that when McCue got out of his van on the Central Avenue exit ramp near the Eisenhower Expressway, Vaisvilas drove to a tavern in the 5700 block of West Roosevelt Road. He met Vincent, entered his silver Lincoln Continental parked in front of the tavern, and, as they rode together, Vaisvilas set the $5,000 given to him by McCue on the center console. Vincent said that "he did not like it. It's a cop setup," but decided to go through with the deal anyway. He stopped his car in an alley, removed a cardboard box from the trunk and brought it back to Vaisvilas, who, after examining the contents, asked if they were giving McCue a whole pound at one time. Vincent said yes, and drove him back to his van. Vaisvilas drove to where McCue's undercover vehicle was parked. His testimony concerning the events which took place thereafter closely tracked the accounts given by McCue, Collins and Labik. In January 1976, Jenkot had told him that McCue was a potential "quantity" buyer. Vaisvilas then told Jenkot that he would give 40 percent of his $1,000 profit from the sale to Jenkot.
Testimony was given by forensic chemist Richard Jelsomino, another State's witness, who performed chemical analyses of all the powdery substances received from Jenkot, Vaisvilas and Vincent. He found that those substances contained PCP, an animal tranquilizer used by veterinarians, and by others as an hallucinogenic. Testimony given by other witnesses will be described later in the opinion, as necessary.
At the close of the State's case-in-chief, defendants' motion for a directed verdict was denied. The defense rested without presenting any evidence. The jury found Jenkot and Vincent guilty of the charges first noted in this opinion. Both Jenkot and Vincent had also been charged with delivery of a controlled substance; however, the jury found Jenkot not guilty of that charge and was deadlocked on the delivery charge against Vincent. A mistrial on the latter delivery charge was declared. After defense motions in arrest of judgment and for a new trial were denied, Jenkot and Vincent elected to be sentenced under the prior law, and were sentenced, also as first noted above. Thereafter, the State nolle prosequied the delivery charge as to Vincent. This appeal followed.
Defendant Vincent first contends that he was denied a fair trial by the admission into evidence of unconnected, prejudicial hearsay statements in the absence of a ruling by the trial court that a conspiracy existed. Vincent acknowledges that the acts and declarations of co-conspirators in furtherance of the conspiracy are admissible against another defendant, even when made out of the latter's presence, and that such acts and declarations may be admitted as exceptions to the hearsay rule. (People v. Olmos (1979), 77 Ill. App.3d 287, 395 N.E.2d 968; People v. Morrow (1976), 40 Ill. App.3d 1020, 353 N.E.2d 354.) Vincent claims, however, that no act performed or declaration made prior to the beginning or after the termination of the conspiracy is admissible against a nondeclaring co-conspirator. (People v. Meisenhelter (1942), 381 Ill. 378, 45 N.E.2d 678.) Error is claimed in the trial court's failure to make a determination as to the limits of the conspiracy and in its failure ...