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People v. Harmison





Appeal from the Appellate Court for the Third District; heard in that court on appeal from the Circuit Court of Peoria County, the Hon. Richard E. Eagleton, Judge, presiding. JUSTICE GOLDENHERSH DELIVERED THE OPINION OF THE COURT:

In a bench trial in the circuit court of Peoria County defendant, Scott M. Harmison, was convicted of calculated criminal drug conspiracy (Ill. Rev. Stat. 1981, ch. 56 1/2, par. 1405(a)) and delivery of a controlled substance (Ill. Rev. Stat. 1981, ch. 56 1/2, par. 1401(b)(2)). He was sentenced to a term of six years in the penitentiary for the conspiracy conviction and a concurrent term of four years' probation for the unlawful delivery. Pursuant to section 5-9-1.1 of the Unified Code of Corrections (Ill. Rev. Stat. 1983, ch. 38, par. 1005-9-1.1), the court imposed a $2,000 fine, representing the "street value" of the contraband. The appellate court reversed the conviction for conspiracy, affirmed the conviction for delivery, and remanded for resentencing. (124 Ill. App.3d 236.) We allowed the People's petition for leave to appeal.

The testimony shows that an informant cooperating with the Peoria police called defendant and told him that he was looking for an ounce of cocaine for a "friend." The "friend" was Richard L. Barcus, Jr., an undercover narcotics agent. The informant and defendant negotiated the terms of the sale and delivery, and although defendant originally said that he did not want to meet the "friend" who was buying the cocaine, a meeting in a parking lot was ultimately arranged. Defendant delivered a bag containing the cocaine, received the money, and was arrested at that time.

Before the delivery and after talking with the informant, defendant talked with his co-defendant, Robert L. Dubois, and told him to go to the home of Pete Lowe, with whom defendant had had prior dealings involving cocaine, and obtain the cocaine. Defendant could not go directly to Lowe because he was indebted to him for cocaine previously purchased. Dubois succeeded in obtaining the cocaine from Lowe without paying for it at that time. He did not tell Lowe with whom he was associated or to whom the cocaine was to be sold. Dubois did inform Lowe, however, that the cocaine was not for his own use and that it was going to be sold.

Section 405 of the Controlled Substances Act, in pertinent part, provides:

"(a) Any person who engages in a calculated criminal drug conspiracy, as defined in subsection (b), is guilty of a Class X felony. * * *

(b) For purposes of this section, a person engages in a calculated criminal drug conspiracy when:

(1) he violates any of the provisions of subsections (a) or (b) of Section 401 or subsection (a) of Section 402; and

(2) such violation is a part of a conspiracy undertaken or carried on with two or more other persons; and

(3) he obtains anything of value greater than $500 from, or organizes, directs or finances such violation or conspiracy." Ill. Rev. Stat. 1981, ch. 56 1/2, pars. 1405(a), (b).

In reversing the judgment the appellate court held, inter alia, that the indictment charging the calculated criminal drug conspiracy was fatally defective because it did not name or identify the third person with whom defendant was alleged to have conspired and that this defect made it impossible for defendant to develop his defense concerning the alleged agreement with the unnamed co-conspirator. The appellate court also held that the circuit court erred in denying defendant's motion for a bill of particulars which requested the identification of the unnamed co-conspirator.

The appellate court held further that the burden was upon the People to prove that defendant and two or more other persons conspired to sell the cocaine to Barcus but that they proved only that defendant and Dubois conspired to do so. It stated that the fact that defendant knew that Dubois would obtain the cocaine from Lowe was not sufficient to prove that Lowe was the third person in the calculated drug conspiracy. It concluded that the evidence did not prove that Lowe agreed with defendant or Dubois to the commission of the crime and, in fact, indicated that Lowe did not know about the defendant's participation in the planned sale. The court held that "[w]ithout the agreement of three or more conspirators there cannot be a calculated criminal drug conspiracy." (124 Ill. App.3d 236, 239.) We note parenthetically that Dubois was acquitted on the calculated-criminal-drug-conspiracy charge.

We consider first the People's contention that the evidence presented at trial was sufficient to prove defendant guilty of a calculated criminal drug conspiracy undertaken with two other persons. The People argue that, because of the clandestine nature of a conspiracy and the difficulty of establishing it by direct proof, the courts have permitted broad inferences to be drawn of the conspiratorial intent from evidence of the acts, conduct and circumstances of the parties. Citing United States v. Bruno (2d Cir. 1939), 105 F.2d 921, they contend that conspiracies to distribute controlled substances have generally been considered to be interconnected and that a participant in a segment of the conspiracy may be convicted of participation in the whole.

We have examined the authorities cited by the People (Blumenthal v. United States (1947), 332 U.S. 539, 92 L.Ed. 154, 68 S.Ct. 248; United States v. Braverman (7th Cir. 1975), 522 F.2d 218; United States v. Bruno (2d Cir. 1939), 105 F.2d 921) and find them inapposite. We need not discuss the individual opinions; they are consistent with the rule long established in this jurisdiction that conspirators, to be guilty of the offense, need not have entered into the conspiracy at the same time or have taken part in all its actions. (See People v. Brinn (1965), 32 Ill.2d 232.) They do ...

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