Appeal from the Circuit Court of Du Page County; the Hon.
Anthony Peccarelli, Judge, presiding.
JUSTICE LINDBERG DELIVERED THE OPINION OF THE COURT:
Defendant, Eugene Edwards, appeals from his conviction in the circuit court of Du Page County for the offense of unlawful possession of a controlled substance and from his 12-year sentence. Defendant contends he was not proved guilty beyond a reasonable doubt and that the trial court erred in denying his severance motion and in tendering certain jury instructions. Defendant challenges his sentence on the grounds that the trial judge considered an improper aggravating factor and that the sentence is excessive. Because we find no reversible error committed by the trial court, we affirm.
Three individuals were arrested on October 13, 1981. Defendant and co-defendant Michael Sarfino both were charged with the offense of unlawful delivery of a controlled substance (Ill. Rev. Stat. 1979, ch. 56 1/2, par. 1401(a)(2)), unlawful possession with intent to deliver a controlled substance (Ill. Rev. Stat. 1979, ch. 56 1/2, par. 1401(a)(2)), armed violence (Ill. Rev. Stat. 1979, ch. 38, par. 33A-2), and unlawful use of a weapon (Ill. Rev. Stat. 1979, ch. 38, par. 24-1(a)(4)). Co-defendant Edward Kukla was charged with all offenses but the unlawful use of weapons offense. The arrests were the result of an undercover narcotics investigation.
The principal State witness, Special Agent Angelo M. DeFranco, testified he indicated to informant Wayne Meinhard over the telephone at 3:30 p.m. on October 13, 1981, that he believed drugs would be available for purchase that day at approximately 6 p.m. and informed Meinhard to purchase one pound of cocaine for $24,000. As a part of this drug investigation, special agents began a stake-out of Sarfino's home from a nearby street on the afternoon of October 13. Special Agent Marshall of the Department of Law Enforcement testified that at approximately 5:23 p.m. on October 13, 1981, he observed Kukla and Meinhard drive up to Sarfino's house, park in his driveway and enter the house. At 6:12 p.m. that same day, defendant drove up to Sarfino's house in a white van, exited the vehicle carrying a brown satchel with handles on it, was met at the door by Sarfino and entered the residence. Acting on directions from DeFranco, Meinhard, while at Sarfino's house, inspected the cocaine and then, at approximately 6:20 p.m., phoned DeFranco to inform him that the cocaine was there.
After receiving Meinhard's phone call, DeFranco and Special Agent Wayne Fieroh left the Elgin police department (DCI Office), drove to the Holiday Inn in Elmhurst, and arrived at 7:15 p.m. There, they met Meinhard and Kukla, who had left Sarfino's house at approximately 6:57 p.m., and Kukla thereafter phoned someone in the presence of the special agent and Meinhard. Special Agent Marshall observed Sarfino and Edwards depart from Sarfino's house at 7:32 p.m. Sometime after his phone call, Kukla informed DeFranco and Fieroh that "he is here" and they all exited the hotel lobby and met with defendant and Sarfino, who were in a white Chrysler Cordoba in the hotel parking lot. There, Fieroh allowed Sarfino to inspect the money. Following the inspection, Sarfino advised DeFranco to follow him to his house where the "stuff" was located. Once at Sarfino's house, the agents remained in their unmarked, undercover vehicle, and soon Sarfino walked back to and entered the agents' car. Once inside, Sarfino removed a large package wrapped in newspaper from his pants and opened it. Inside was a large, clear plastic bag containing white powder later determined to be cocaine. Defendant was not in the car when the cocaine was delivered, but did attempt to flee once several unmarked cars converged on the scene. The brown satchel carried by defendant when he first arrived at Sarfino's house was found by an officer empty nearby the car in which the transaction occurred.
After a jury trial, defendant was found guilty of unlawful possession with intent to deliver, but was found not guilty of the unlawful delivery and armed violence offenses. The State nol-prossed the unlawful use of weapons count. After the trial court denied defendant's motion for acquittal or for a new trial, it sentenced defendant to a term of 12 years in the Illinois Department of Corrections. Defendant filed a timely notice of appeal.
Defendant first contends that the State failed to prove him guilty beyond a reasonable doubt. Both defendant and the State argue that two prosecution theories could arguably support the jury verdict: (1) defendant was independently proved to have possessed the cocaine, and (2) defendant was proved guilty on an accountability theory. Defendant argues he was not proved guilty beyond a reasonable doubt to have either possessed the cocaine as a principal or to have been accountable for Sarfino's possession of the cocaine. In reviewing the evidence, this court will not lightly overturn a jury's verdict, and will not substitute its judgment for that of the trier of fact unless the evidence is so improbable as to raise a reasonable doubt of guilt. (People v. Molstad (1984), 101 Ill.2d 128.) The evidence in large part pertains to both theories of prosecution and is recounted below.
The two principal State witnesses offering testimony implicating defendant were special agents DeFranco and Fieroh. DeFranco stated that after receiving the call from his informant, Meinhard, he and Fieroh went to the Holiday Inn in Elmhurst. There, they met Meinhard and Kukla. Soon thereafter, Sarfino drove up with defendant in the passenger seat. According to DeFranco, DeFranco approached and stood by the passenger side of the car and then Sarfino stated: "We don't have the stuff with us here, it is at my house in the van." Defendant then said, "We have to see the money." Defendant contends DeFranco's credibility was impeached by his earlier testimony in which he stated that Sarfino asked him if he had the money without mentioning any statement made by defendant. However, DeFranco one page earlier in his trial testimony confirmed that defendant asked about the money.
"Q. [Defendant's attorney]: Now, you said that my client said, `you have to see the money'?
A. [DeFranco]: `We have to see the money.'
Are you sure my client said that but not Mr. Sarfino; is that correct?
A. He said it and then Mr. Sarfino said it again."
The credibility of a witness is properly determined by the trier of fact. (People v. McVay (1981), 98 Ill. App.3d 708, 714, 424 N.E.2d 922, 926.) This evidence is not so improbable as to create a reasonable doubt of guilt.
DeFranco's testimony that Sarfino stated the stuff was at his house in the van implicates defendant, because the record indicates that defendant drove up to Sarfino's house in a van. DeFranco then stated he had the money in the car, and Sarfino ordered DeFranco to walk to the car while Sarfino and Edwards drove and parked next to the car. Sarfino exited and, in response to seeing the $24,000 displayed by Fieroh, stated "it looked good." When DeFranco asked why Edwards was there, Sarfino stated, "That's my partner." Sarfino then told everyone to return to his house where the "stuff" was located. DeFranco testified that after he announced that Sarfino was under arrest, he observed defendant running away and ordered the other officers to apprehend defendant. DeFranco admitted that no one told defendant that he was under arrest prior to his flight, but DeFranco stated at least one unmarked car had displayed flashing red lights when converging on the scene.
Additional evidence implicating defendant was offered by Special Agent Marshall, who testified that he observed defendant arrive at Sarfino's home on October 13, 1981, at about 6:12 p.m. in a white van. The time of his arrival is significant because DeFranco had earlier testified that the plans for the purchase of the cocaine had been set for 6 p.m. that evening. DeFranco instructed Meinhard to call him after viewing the cocaine; Meinhard while at Sarfino's residence phoned DeFranco at 6:20 p.m. and told him he had observed the cocaine, was leaving, and stated, "I will be meeting you ...