Appeal from the Circuit Court of Champaign County; the Hon.
Harold L. Jensen, Judge, presiding.
JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:
Defendant, Michael LeShoure, appeals from the judgments of the circuit court of Champaign County entered after a trial by jury (1) convicting him on three counts of calculated criminal drug conspiracy (Ill. Rev. Stat. 1983, ch. 56 1/2, par. 1405), and one count each of (a) unlawful manufacture of a controlled substance (heroin) (Ill. Rev. Stat. 1983, ch. 56 1/2, par. 1401(c)), (b) unlawful manufacture of a controlled substance (cocaine) (Ill. Rev. Stat. 1983, ch. 56 1/2, par. 1401(b)(2)), and (c) unlawful possession of a controlled substance with intent to deliver (heroin) (Ill. Rev. Stat. 1983, ch. 56 1/2, par. 1401(c)); and (2) sentencing him to concurrent terms of imprisonment of 15 years for calculated criminal drug conspiracy, and 7, 10, and 7 years, respectively, for the other offenses. Defendant was also fined $500. The convictions were based on an information filed on November 1, 1984. Defendant has appealed.
Defendant contends here that: (1) He was entitled to a directed verdict on the calculated criminal drug conspiracy charges; (2) the trial court erred in permitting the State to charge him by information after an indictment making the same charges had been dismissed for prosecutorial misconduct before the grand jury; (3) the trial court should have suppressed the incriminating evidence upon which he was convicted; (4) his motions in limine should have been allowed; (5) the court erred in refusing an instruction tendered by him; (6) his objection to the testimony of a forensic scientist who examined various allegedly controlled substances should have been sustained; (7) the court erred in allowing an occurrence witness to testify after he improperly refreshed his recollection; and (8) the court erred in restricting the cross-examination of that witness.
We affirm all of the convictions except those for calculated criminal drug conspiracy, which we reverse.
The lead witness for the State was Vicki Hawley, an officer with the Champaign County major-case squad, who testified to participating in the execution of a search warrant at defendant's residence at 207 East Hill Street in Champaign on August 21, 1984, and the arrest there of defendant, his wife, Clendora LeShoure, and Larry McGowan.
Hawley testified to the following chain of events. When she and Squad Officer Jim Davis arrived at the defendant's residence, Clendora LeShoure was outside, talking to unidentified persons seated in a vehicle parked in front of the house. Hawley and Davis identified themselves as police officers, asked if defendant was home and informed Clendora of the warrant. Clendora was by then walking toward the door. Clendora then continued toward the door. When she got to the door, she yelled for her husband and tried to close the door. Officer Davis prevented her from doing this. The two officers then entered the house and saw defendant and McGowan in the kitchen. On the kitchen counter Officer Hawley saw a white powdery substance, baking soda, a bottle containing a clear liquid, scissors, cut plastic corners, and some money.
According to Hawley, she then (1) observed McGowan, who had been required to raise his hands, attempting to put something down the back of his shirt; (2) searched McGowan and found money in the amount of $202 in the back of his shirt; (3) searched defendant and removed from his shirt pocket a small cannister containing foil packets in which there was a brown powdery substance; and (4) found a cup on the kitchen counter in which were foil packets containing white powder and a brownish-black substance. Hawley testified that in closed drawers in the kitchen she also found a free-base pipe, sifters, cut pieces of foil, scales, funnels, a toothbrush, a razor blade, a spoon, inositol, baggies, aluminum foil, cotton balls, screen, tie-ties plastic straws, and two empty Dorman bottles. She did not testify to finding anything else in any other portion of the house, which was later identified as containing a controlled substance.
Officer Jim Davis testified to participating in the execution of the warrant and identified various items of personal property which were seized at that time. These items included large quantities of clothing, electronic equipment, and cameras. Several persons testified that various of these items had been stolen from them during burglaries. Officer Davis testified that in his work over the years in law enforcement he had become familiar with the trade of cocaine and heroin in Champaign County. He indicated that he was aware that cocaine and heroin were exchanged for items other than United States currency and that these items could include meat, clothing, jewelry, and electronic equipment. Often, these items were stolen merchandise.
Squad member Michael Cook testified that on August 6, 7, and 8 of 1984, he and Officer Stevens maintained surveillance on the defendant's residence. During that surveillance, a videotape was produced of persons entering and exiting the house. Officer Cook testified that despite surveillance of up to 20 hours per day, the videotape camera produced a videotape lasting only about 41 minutes due to power limitations. The videotape could not be run constantly but had to be stopped and started when people arrived or left. The jury was shown the videotape of surveillance for each of the three days.
Cook testified that on August 6, the defendant arrived home at about 8 a.m., left around 2:24 p.m., and returned home around 3 p.m. He further stated that he noticed Larry McGowan arrive at the home around 3:30, again at 4 p.m., and then return again around 5 p.m. wearing work clothes. McGowan left while the surveillance team was not watching the residence, and returned later that evening. Cook did not know whether Clendora was there at the home that day. He further testified that on that day he saw 34 to 35 persons entering and leaving the defendant's residence, and on one occasion, one person who entered the residence seemed less oriented when leaving.
According to Cook, surveillance continued on August 7 and he saw defendant arrive home at 1:07 p.m. that day, and, although the team did not see defendant leave, Cook saw defendant again enter the house at 2:45 p.m., and several times that evening. Cook testified to seeing between 20 and 25 persons leaving the house that evening. Similarly, Cook testified to seeing defendant enter the residence several times on August 8 even though the surveillance team had not seen him leaving between some of his entries. Cook stated that he first saw McGowan that day at about 1:15 p.m. when McGowan was putting a bicycle together in front of defendant's house. Apparently McGowan left sometime later. Cook testified that McGowan returned at about 5 p.m. According to Cook, 9 to 10 other persons entered the home on that date.
John Martin, a forensic scientist with the Department of Law Enforcement of the State of Illinois testified to examining certain substances brought to him and identified as being taken in the search of defendant's home. He described tests performed and gave an opinion that various substances contained cocaine and heroin.
Defendant did not present any evidence.
• 1 We consider first defendant's contention that the court should have directed a verdict as to the counts charging defendant with the offense of calculated criminal drug conspiracy. Section 405(b) of the Illinois Controlled Substances Act states that a person commits that offense when that person violates certain provisions of the Act and when the "violation is a part of a conspiracy undertaken or carried on with two or more other persons," and the offender obtains value greater than $500 from the conspiracy or "organizes, directs or finances such violation or conspiracy." (Emphasis added.) (Ill. Rev. Stat. 1983, ch. 56 1/2, par. 1405(b).) Section 405 does not define the elements of conspiracy. The applicable definition comes from section 8-2(a) of the Criminal Code of 1961, which states that the offense of a simple conspiracy is committed when "with intent that an offense be committed, [one] agrees with another to the commission of that offense" and an act in furtherance of the conspiracy is committed by a conspirator. Ill. Rev. Stat. 1983, ch. 38, par. 8-2(a).
As we have stated, to be guilty of a section 405 conspiracy, the accused must have conspired with at least two others. The instant information charged defendant with conspiring with his wife, Clendora, and Larry McGowan. Thus, to prove defendant guilty of calculated criminal drug conspiracy, the State was required to prove that defendant entered into agreements with both Clendora and McGowan to commit the drug offenses alleged. We hold that as far as Clendora is concerned, the proof of such an agreement failed as a matter of law.
The evidence showed that Clendora was defendant's wife and lived with him. The evidence does not indicate whether she was present during the times when various people entered the family residence during the surveillance before the execution of the search warrant. However, because of the large quantities of controlled substances, paraphernalia for the use of those substances, and apparently stolen goods in the house, the jury could infer that she knew of the presence of the contraband in the house and that it was being sold. There was also evidence that she attempted to warn defendant of the presence of the officers and to prevent them from arresting defendant when they advised her of their warrant and that they wished to see defendant.
Citing People v. Jones (1979), 75 Ill. App.3d 214, 393 N.E.2d 1132, and People v. Persinger (1977), 49 Ill. App.3d 116, 363 N.E.2d 897, the State maintains that the foregoing evidence was sufficient to show that Clendora was a conspirator in the alleged conspiracy. In Jones, as here, the question arose as to whether the evidence was sufficient to show the wife of an illegal possessor and deliverer of cannabis was a conspirator with him. The evidence showed that she helped prepare cannabis for delivery and had agreed to the use of her residence as a place for the storing and sale of the cannabis. In Persinger, the sufficiency of the proof to show that the husband was a conspirator with the wife was in issue. There, evidence was presented that he was present during various alleged controlled-substance sales conducted by the wife and that on one occasion he and the wife had threatened a purchaser who refused to pay. Evidence also showed that some of the controlled substances being sold had been obtained from druggists by use of prescriptions in the husband's name.
In both Jones and Persinger, the court noted the difficulty of proving the agreement necessary to a conspiracy and that the trier of fact was permitted to draw "broad inferences" of the existence of a common design among those charged from their conduct. (People v. Jones (1979), 75 Ill. App.3d 214, 224, 393 N.E.2d 1132, 1140; People v. Persinger (1977), 49 Ill. App.3d 116, 121, 363 N.E.2d 897, 901.) On the other hand, in People v. Deatherage (1984), 122 Ill. App.3d 620, 461 N.E.2d 631, an issue arose as to whether an admission by an individual was binding on the defendant because that individual was a conspirator with the defendant. The defendant was shown to be present during a cocaine ...