Appeal from the Circuit Court of Peoria County; the Hon.
Calvin R. Stone, Judge, presiding.
PRESIDING JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:
After a bench trial, the defendant, Daniel J. Unes, was convicted of the crimes of calculated criminal drug conspiracy and unlawful delivery of a controlled substance. Judgment of conviction was entered only on the offense of calculated criminal drug conspiracy, and Unes was sentenced to a 10-year term of imprisonment.
On April 24, 1984, in a two-count indictment Unes, along with Robert Stout and David Adams, was charged with unlawful delivery of more than 30 grams of a substance containing cocaine and with calculated criminal drug conspiracy for undertaking a conspiracy to make the delivery with the other two defendants and organizing or directing that conspiracy. The charges against Unes were based primarily on a transaction between undercover agent Hackett and Stout, and the events emanating from it. Each defendant arranged for separate counsel, and the cases were severed for trial.
During Unes' bench trial, the State presented testimony of several Metropolitan Enforcement Group (MEG) agents concerning conversations with Unes and Stout. The report of a forensic chemist which identified the white powder delivered to the agents as containing cocaine and the chemist's testimony concerning the report were also entered into evidence.
At trial, agent Hackett testified he met with Stout, seeking to arrange for the purchase of two ounces of cocaine for $4,000, and that Stout informed him that he had a source in Metamora whom he would contact. Through a later phone conversation, Stout told Hackett he was going to pick up his source in Metamora and return to an address in Peoria, which was later identified as the residence of Unes. Agent Bates, who was conducting surveillance, testified that Stout left Peoria and drove to the residence of the other co-defendant, Adams, in Metamora and that he followed Stout's car, which contained two people, back to Unes' residence in Peoria. Hackett further testified that Stout phoned him from Metamora informing him that he had spoken to "the man on Bigelow" and would be going to the Bigelow address. In a later phone conversation after Stout arrived at the Bigelow address, Stout informed Hackett the cocaine would be there in 10 or 15 minutes. Stout then called Hackett again saying he was unable to obtain the cocaine that evening, but that he could obtain the two ounces the next day.
In a series of phone conversations the next day, Stout informed Hackett that the man from Metamora, Stout and the man on Bigelow, whose name was Dan, were present at the Bigelow address and inquired whether Hackett was still interested in purchasing the two ounces of cocaine. Hackett responded affirmatively and was told by Stout that "the man" would have to go across the river and would return shortly. Hackett refused to go to the Bigelow address in order to consummate the transaction so it was agreed that a meeting would take place at a nearby restaurant.
Surveillance agents testified that Stout drove to the restaurant with Unes as a passenger, and upon their arrival, Stout left his car and entered Hackett's car. Hackett testified Stout then gave him two plastic bags containing a white, powdery substance. The agents then entered the area and arrested Stout and Unes, who had remained in Stout's car during the transaction.
After he was taken into custody and received the Miranda warnings, Unes told officers that Adams had brought Stout, whom he claimed to have not known previously, to his residence to locate two ounces of cocaine. Unes stated that he did not normally deal in orders of that size and that the three of them called around to locate two ounces. Further, that through a "friend of a friend" in Pekin, he had been able to locate the cocaine and had gone to Pekin to pick up the two ounces, returning to his home where the three defendants then weighed and cut the cocaine. Finally, Unes stated he had stopped dealing in cocaine and that he normally dealt only with fractional amounts of cocaine for personal use.
Hackett further testified he field tested the contents of the bags at the MEG office the night of the arrest and delivered the bags the next day to Eileen Taylor, a forensic chemist at the Morton Crime Laboratory.
Taylor testified that she received the two bags from Hackett, but that she did not have independent recollection of having weighed and analyzed the substances. She, however, identified People's exhibits Nos. 8, 9, and 10 as the originals of her case report which she had prepared at the time she weighed and analyzed the substances. Taylor further testified she prepared the report at the time of her analysis of the substances, that the report was made for the purpose of preserving the results of her analysis and that she recorded her opinion concerning what the substances contained in People's exhibit No. 8 at the time of her analysis. Finally, that after conducting her tests she resealed the bags and placed her initials and the date April 11, 1984, on the resealed bags.
People's exhibits Nos. 8, 9, and 10 were admitted into evidence, and Taylor was permitted to testify about them. Relying on the reports, Taylor testified that each bag weighed 27.4 grams and, on the basis of infrared spectrophotometry testing, her opinion was that the white powder contained in each bag was cocaine.
On appeal, Unes contends first that the State failed to prove beyond a reasonable doubt that he organized or directed the conspiracy and, therefore, his conviction for calculated criminal drug conspiracy must be reversed. Specifically, that the evidence presented demonstrated only that he was the third person brought into the conspiracy to obtain the drugs and that he did not organize or direct the conspiracy.
According to statute, a defendant engages in a calculated criminal drug conspiracy when he undertakes a conspiracy to commit certain drug possession or delivery violations with two or more other persons and "he obtains anything of value greater than $500 from, or organizes, directs or finances such violation or conspiracy." (Ill. Rev. Stat. 1985, ch. 56 1/2, par. 1405(b)(3).) This court has previously held that the offense of calculated criminal drug conspiracy requires proof "that the defendant either had sufficient influence over his co-conspirators to be in a position to systematize their activities or to give orders or instructions that would to some extent be binding," and in keeping with legislative intent, the statute "must be read to be confined to those offenders who can be said to exercise a governing or determining influence over narcotics violations." (People v. Lucas (1975), 33 Ill. App.3d 309, 314, 337 N.E.2d 103, 107.) Further, to determine whether any one of the defendants in a conspiracy has the requisite sufficient influence, the extent of his involvement must be measured against that of his co-conspirators.
Unes contends the evidence establishes that only one of the co-conspirators, Stout, had the requisite level of involvement that would sustain a conviction of the offense of calculated criminal drug conspiracy. He implicitly argues that only one member of a conspiracy may be subject to this offense. With regard to this latter point, it is clear from other cases that there may be more than one organizer or director of a calculated criminal drug conspiracy. See People v. Simon ...