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People v. Shimkus

OPINION FILED AUGUST 15, 1985.

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

v.

CHRISTOPHER J. SHIMKUS, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Du Page County; the Hon. John J. Nelligan, Judge, presiding.

JUSTICE LINDBERG DELIVERED THE OPINION OF THE COURT:

Defendant, Christopher J. Shimkus, was charged by indictment on March 4, 1983, with the offenses of unlawful delivery of 30 or more grams of a substance containing cocaine (Ill. Rev. Stat. 1983, ch. 56 1/2, par. 1401(a)(2)) (count I) and calculated criminal drug conspiracy (Ill. Rev. Stat. 1983, ch. 56 1/2, par. 1405(a)) (count II). The cause proceeded to trial by jury, and jury verdicts were returned on the offenses of unlawful delivery of a controlled substance, unlawful delivery of 30 or more grams of a controlled substance, and calculated criminal drug conspiracy. Sentencing defendant only on the Class X delivery conviction, the trial court imposed a six-year prison term and a $7,500 fine. Following the denial of defendant's post-trial motions, he filed a timely notice of appeal.

Defendant asserts three bases for reversal of his convictions: (1) that the record does not support the conclusion that one delivery of 30 or more grams of a substance containing cocaine occurred; (2) that the trial court erred with respect to the verdict forms tendered to the jury; and (3) that the State failed to prove defendant's guilt beyond a reasonable doubt of the calculated criminal drug conspiracy offense.

Defendant along with two other individuals, Robert Thiel and Walt Marusiak, were charged with the unlawful delivery on February 15, 1983, of 30 or more grams of a controlled substance and calculated criminal drug conspiracy. Defendant did not testify during the trial, but Thiel, who pleaded guilty to a Class 1 unlawful delivery offense, did testify at defendant's trial.

During the month preceding the events on February 15, 1983, Thiel had sold cocaine to Glen Schneider, an agent for the Illinois Department of Law Enforcement (IDLE). Following Thiel's sale of cocaine to Schneider on February 8, 1983, Schneider informed Thiel that he desired to purchase two ounces of cocaine. After a series of phone calls, they agreed to consummate the sale at Stogen's Tavern in Villa Park. In preparation for this meeting, Schneider was outfitted with a body transmitter designed to transmit sounds to IDLE agent Pierce, who was to be located near Schneider during the transaction.

At approximately 5:15 p.m. on February 15, 1983, IDLE agent Dan Callahan began conducting a surveillance of Thiel's home. There, he observed Thiel's brown 1977 Cadillac parked at the home and at approximately 5:45 p.m. observed the arrival of a tow truck registered to The Main Place, defendant's place of employment. At 7:10 p.m., Callahan observed co-defendant Marusiak's silver-gray Buick Riviera parked behind the tow truck. Five minutes later, the Riviera and the tow truck left, and Callahan then departed for Stogen's Tavern.

According to Thiel, Marusiak and defendant arrived at his house between 6 and 6:30 p.m. on February 15, 1983. Thiel asked if defendant could obtain one ounce of cocaine and told defendant he was probably going to sell the ounce that night. Defendant and Marusiak left and returned approximately one hour later, and defendant produced a half-ounce of cocaine in a baggy. Thiel added baby laxative until the cocaine weighed approximately 28 grams. Thiel then placed the cocaine in a baggy and put that baggy into a white envelope on his dresser. Thiel testified defendant was probably in the room when he removed more cocaine from his dresser.

Immediately prior to leaving for Stogen's Tavern, Thiel testified he asked defendant "if he would take the other ounce for me because I didn't know if the guy was going to have the rest of the money for the other ounce." After telling defendant to leave for Stogen's Tavern in 15 minutes, Thiel left the house, placed approximately one ounce of cocaine into the trunk of his Volvo and drove to Stogen's Tavern alone. There, Thiel and Schneider engaged in a conversation inside Thiel's Volvo. Thiel exited and opened the trunk, returned to the car and handed Schneider a white envelope. Schneider inspected the cocaine and handed Thiel $2,000. After the exchange, Thiel handed Schneider a small, capped plastic vial containing approximately 3 grams of cocaine. Thiel explained that the vial represented the 3 grams of cocaine Thiel had "shorted" Schneider in their previous February 8, 1983, cocaine transaction.

Thiel then backed his Volvo out of the parking place, drove a few hundred feet and reparked the car near where it had been parked previously. Thiel's brown Cadillac with two persons inside then pulled up behind the Volvo. Thiel exited the Volvo and walked back to the passenger door of the Cadillac, where Thiel testified he handed the $2,000 to Marusiak. Thiel then returned, and informed Schneider that the two persons in the Cadillac had the other ounce, and that "we were going to do the rest of the deal at K's Tavern" located several blocks away from Stogen's Tavern. Once both cars were parked in a parking lot near K's Tavern, Thiel asked Schneider to count out the $2,000, exited, reached into the passenger side of the Cadillac and returned with a white envelope. Schneider inspected the envelope, inside of which was a clear plastic bag containing the cocaine, and then handed Thiel the money. Thiel again exited the car, handed something to the occupants of the Cadillac and returned to the Volvo.

Schneider immediately arrested Thiel, but the Cadillac left the parking lot pursued by police cars. Following a nine-block, 60 miles per hour chase, the Cadillac abruptly stopped, and both occupants exited and eluded the police officers. Defendant's fingerprints were found inside the Cadillac and on one of the envelopes delivered to Schneider. After his arrest, Thiel gave a written statement to the police officers implicating defendant in the transaction. A warrant was issued for defendant's arrest, and Lombard police officers began observing the house of defendant's girlfriend. On February 17, 1983, at approximately 1 p.m., Officer Carl Dillenkoffer observed two individuals leave the home, enter a yellow Firebird, and pull out of the driveway. Dillenkoffer and another officer followed and eventually pulled over the Firebird and found defendant crouched in a fetal position in the front passenger seat of the car. At the Lombard police station, defendant in hypothetical terms (using numbers for each participant) admitted to Officer Hamm that he gave Marusiak the $4,000 immediately prior to fleeing from the Cadillac.

• 1 Defendant contends that the State failed to prove him guilty beyond a reasonable doubt of the calculated criminal drug conspiracy offense. (Ill. Rev. Stat. 1983, ch. 56 1/2, par. 1405.) In determining the validity of the calculated criminal drug conspiracy conviction, we are required to discuss briefly defendant's arguments relative to his unlawful delivery conviction. Defendant contends he was convicted improperly of delivery of 30 or more grams of a substance containing cocaine because the evidence established three separate deliveries each less than 30 grams: one for 28.4 grams, one for 26.9 grams and one for 2.3 grams. According to defendant's theory, therefore, the State failed to prove that he made any one delivery of 30 or more grams. Assuming, arguendo, and without deciding, that defendant is correct regarding the occurrence of three separate deliveries, defendant's conviction for calculated criminal drug conspiracy can nonetheless stand.

To support a calculated criminal drug conspiracy conviction, the statute requires proof of either a violation of section 401(a) (Ill. Rev. Stat. 1983, ch. 56 1/2, par. 1401(a) (delivery of 30 or more grams of a substance containing cocaine)), or a violation of section 401(b) (Ill. Rev. Stat. 1983, ch. 56 1/2, par. 1401(b) (delivery of more than 10 but not more than 30 grams of a substance containing cocaine)). Even under defendant's theory, a predicate delivery sufficient to support a conviction for calculated criminal drug conspiracy was established here.

• 2 In this regard, defendant complains of the number and lack of specificity of the verdict forms on the delivery offense tendered to the jury. The State responds that defendant has waived this issue. We agree. The State argues that when it tendered instructions 27 and 28 it included verdict forms of not guilty and guilty of the offense of delivery of a controlled substance without reference to the amount delivery. Defendant never objected to the form of the verdicts when they were tendered. To the contrary, defendant expressly informed the court that the verdict forms were properly submitted to the jury. Defendant failed to raise this claim of error in either his post-trial motion or his amended post-trial motion. A defendant cannot allege as error on appeal a verdict form which he did not object to at trial. (People v. Hamelin (1979), 75 Ill. App.3d 445, 394 N.E.2d 566.) Nor can defendant successfully argue that the tendered verdict forms constitute plain error. (87 Ill.2d R. 615.) Accordingly, defendant has waived appellate review of this issue.

In any event, defendant could not have been prejudiced on the facts of this case because there was no danger that the jury did not agree on one specific delivery. As noted previously, the evidence read as defendant would like establishes three separate deliveries of a substance containing cocaine weighing 28.4 grams, 26.9 grams and 2.3 grams respectively. Because the jury found defendant guilty of delivery of 30 or more grams of a substance containing cocaine, the 12 jurors necessarily agreed on the 28.4 gram delivery ...


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