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People v. Melchor

OPINION FILED SEPTEMBER 17, 1985.

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

v.

ERSKIN MELCHOR, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. Romie J. Palmer, Judge, presiding.

JUSTICE BILANDIC DELIVERED THE OPINION OF THE COURT:

Defendant Erskin Melchor was charged by indictment with one count of possession and one count of delivery of a controlled substance. After a jury trial, defendant was found guilty of both counts, sentenced to 12 years in the Illinois Department of Corrections, and fined $28,122.

Defendant seeks a reversal of the conviction on the grounds that: (1) certain tape recordings were improperly admitted into evidence; (2) a transcript of the alleged tape recordings was improperly used; and (3) the State improperly introduced evidence from an inventory bag that was unsealed by the State before being brought into court.

Gregory Grant, a former Chicago police officer and an acquaintance of defendant, was working as an undercover agent for the Chicago Police Department Internal Affairs Division. He admitted that he had been selling drugs from the mid-1960's to June of 1982. He also admitted lying about his drug use on his police application and on other pertinent occasions. He sold drugs as a business to support his cocaine habit. Defendant was a member of the Chicago police department. Grant participated in the investigation of Melchor as part of a plea arrangement.

Prior to May 3, 1982, Grant had two telephone conversations with Melchor. Pursuant to authorization, Grant recorded each of these conversations. The first conversation took place on April 20, 1982. Grant placed a phone call to defendant's telephone number from the State's Attorney's office. Sergeant Thomas Chandler, a Chicago police officer, was listening on an extension telephone. The next phone call was placed to defendant's residence on April 21, 1982, from a pay phone near the Museum of Science and Industry. Grant and Sergeant Chandler shared the same telephone earpiece during this conversation.

Grant, who knew defendant personally, testified that the man with whom he spoke over the phone on each of these occasions, with Sergeant Chandler listening, was defendant. He also testified that the recordings were an accurate depiction of the conversations. Defendant spoke approximately three words during the first conversation and approximately five words during the second. The tapes of these phone conversations were admitted into evidence. There is no dispute about the use of these tapes.

The next court-authorized recording took place on May 3, 1982. This was an alleged audio recording of the drug transaction charged in the indictment. For reasons not explained in the record, the State departed from its prior procedure and did not use Grant to lay the foundation for the admission and use of the tapes of the May 3, 1982, transaction.

At approximately 5:30 p.m. on May 3, 1982, Sergeant Chandler, several other Chicago police officers, a Federal agent and Frank Kenny, a technician with the State's Attorney's office, met with Gregory Grant in the parking lot of the Museum of Science and Industry. Kenny testified that Grant was equipped with two separate tape recording devices in order to tape an alleged drug deal that was to take place at 7 p.m. at defendant's residence. The first system was a Nagra tape recorder, consisting of a small microphone that picked up sounds close to Grant and transmitted them directly to the Nagra tape recorder strapped to his waist.

The second system consisted of a small radio transmitter also attached to Grant's body. This transmitter, referred to as a "CAL" unit, broadcast sounds close to Grant over the airwaves to a radio receiver located in a surveillance van. The alleged conversations between Grant and defendant were then monitored in the van and tape recorded. The occupants of the van could hear the transmitted conversations. Kenny testified that he tested the equipment and both systems were operational.

Grant then drove to defendant's apartment building in an undercover police car. Sergeant Chandler and Technician Kenny followed in the surveillance van. Other police and agents followed in an unmarked police vehicle.

Grant testified that defendant arrived at about 7 p.m. with two other men. Grant then got out of his car and they all went into defendant's apartment together. Sergeant Chandler testified that he had a clear view of the entrance to the apartment building but could not see defendant's apartment. The defense disputed this and presented photos and other evidence to show that shrubbery and other obstructions would have prevented Sergeant Chandler from having a view of the entrance.

There was much activity in defendant's apartment with people moving from room to room and phones ringing. Grant claimed he purchased 31 1/2 grams of cocaine from defendant. He acknowledged that tapes shown to him by the prosecutor were tapes of the alleged drug deal. Grant did not testify that he listened to the tapes to verify their accuracy nor was he asked about any transcripts made of the tapes.

Technician Kenny testified that he heard Grant speaking to other persons over the "CAL" unit transmitter and turned on the recorder. The audio tapes were true and accurate reproductions of the conversation he heard on May 3 in the van. He accounted for much of the chain of custody of the tapes. He made no mention of the transcripts made from the tapes.

Sergeant Chandler admitted that his only familiarity with defendant's voice consisted of overhearing the April 20 and 21, 1982, telephone conversations between Grant and defendant. On one occasion, defendant spoke approximately three words and, on the other, approximately five words. Chandler did not ...


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