APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION
505 N.E.2d 1134, 153 Ill. App. 3d 449, 106 Ill. Dec. 343 1987.IL.249
Appeal from the Circuit Court of Cook County; the Hon. Michael P. Toomin, Judge, presiding.
Justice Murray delivered the opinion of the court. Lorenz, J., concurs. Justice Pincham, Dissenting.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MURRAY
Following a bench trial the defendant, Arthur George Soteras, was convicted of delivery of a controlled substance (Ill. Rev. Stat. 1983, ch. 56 1/2, par. 1401(a)(2)), and sentenced to a term of six years. He appeals contending that the trial court erred by admitting the adverse hearsay statements of a co-defendant made outside of his presence where the evidence failed to show the existence of a conspiracy, that the proof did not conform to the indictment, and that he was not proved guilty beyond a reasonable doubt.
On June 18, 1984, the defendant, George Raess and Richard Lewis *fn1 were arrested in the vicinity of an Amoco gasoline station in Palatine, Illinois, and indicted for unlawfully and knowingly delivering to John McQuinn more than 30 grams of cocaine, a controlled substance. The charge against Raess was dismissed on his motion to compel the State to reveal its informant.
Pertinent to the Disposition of this appeal are the following facts: At the trial of defendant and Lewis, undercover agent McQuinn testified that at 8:30 p.m. on June 18, 1984, he went to an Amoco gas station located at 410 Northwest Highway in Palatine, Illinois, to meet George Raess, whom he had known for a week. On the above date he had talked with Raess on the telephone at 1 p.m. and 7:30 p.m. about purchasing cocaine.
Over defense objections, McQuinn testified Raess told him that a friend by the name of Art had the drugs, and in the latter conversation Raess said he would have the cocaine ready whenever McQuinn wanted it. McQuinn told Raess he would pick it up at 8:30 p.m. at the gas station. There Raess got into McQuinn's car and McQuinn asked for the cocaine. Raess said his friend Art and another man would meet them there with it. After a short time, McQuinn asked Raess to call his friend to make sure he was coming. Raess went inside the station and returned to McQuinn's car saying he spoke to Art, and he would be there with the cocaine as soon as some people he was waiting for appeared. Sometime later, at McQuinn's request, Raess again went into the station, and returned saying that Art and his friend, Rick, were on the way and were in a blue Chevrolet Camaro. McQuinn said he then went to the station and called the police to advise them of Art's expected arrival.
Within 20 minutes the blue Chevrolet car slowly passed behind McQuinn's parked vehicle. It was driven by Richard Lewis. Art, whom McQuinn identified as the defendant, was in the passenger seat and nodded toward McQuinn's car. They turned off the car lights and proceeded to park on the other side of the fence, parallel to it and directly in front of McQuinn's car. Raess got out of McQuinn's car and went to the fence where the defendant and Lewis were standing. McQuinn saw the defendant hand Raess a plastic package containing a white substance. Raess then returned to McQuinn's car and gave him the package, which he inspected. McQuinn then signaled his arrest team and told Raess he was under arrest. The car in which the defendant and Lewis were riding sped off with the car lights still off. A few seconds later, Lewis and the defendant were returned to the area in custody of the police. All three of the defendants were taken to the Des Plaines police station. There a driver's license and a firearms owner's identification card in two different names were taken from the defendant. The driver's license had the defendant's photograph on it, but was issued in the name of James D. Meehan.
McQuinn further testified that the street value of the cocaine was $25,000, and that he was supposed to have purchased it for $4,600. He admitted he did not have any conversation or agreement with the defendant and that the defendant did not deliver any drugs directly to him.
Deputy Sheriff Rizzardo testified that he was part of the arrest team and observed the actions of McQuinn and Raess through binoculars. He corroborated McQuinn's testimony as to their movements. After the blue Chevrolet pulled up to the fence, he saw the defendant hand "something" to Raess. When the arrest signal was given, he went to McQuinn's car and then saw the defendant being chased through the adjacent shopping center parking lot by other officers. He joined them and tackled the defendant. He testified that he had announced his office to the defendant at least three times, telling him to stop. He said the gas station area was "very well lit."
Deputy Sheriff Plahm testified he was part of the surveillance team. He corroborated the testimony that the defendant and Lewis pulled up in a Chevrolet and that the defendant handed something to Raess. At the arrest signal, Plahm said he stopped the Chevrolet and identified himself as a police officer. The defendant started running, but Rizzardo apprehended him.
It was then stipulated that agent Lawson arrested Lewis. It was also stipulated that a chemist for the Illinois Department of Law Enforcement analyzed a bag containing white powder which weighed 63.1 grams and tested positively to be cocaine.
On the motion for a directed finding, Lewis was found not guilty. The trial court held that the State had only proved that Lewis drove the car to the scene of delivery, was present when the substance was passed, and facilitated the defendant's departure from the gas station area. The motion was denied as to defendant because the evidence showed that he had rendered aid and assistance to Raess by giving the cocaine to Raess to facilitate the execution of the deal between Raess and McQuinn.
The defendant then testified that he had known Raess for a year and a half. The evening before the arrest, Raess brought the cocaine to the defendant's house. He knew the package contained cocaine, and said he took it because he needed money. On the day of his arrest, Raess called saying he wanted the package back and asked defendant to bring it to the gas station. Because his car was in the shop, he asked Lewis, who was his sister's boyfriend, to drive him there. He said he did not give the package to Raess in front of McQuinn because he knew it contained cocaine and did not want a witness. He denied knowing that Raess was involved in a transaction to sell the cocaine, and denied knowingly delivering drugs to agent McQuinn. He said he ran when he saw several people approach the car because he was "scared," and said he did not hear the agents announce their offices. He admitted applying for the driver's license under another name and said he did so in order to "get into bars."
The trial court found defendant guilty of the delivery of a controlled substance under the theory of accountability.
The defendant first contends that the trial court committed reversible error by admitting the hearsay statements of Raess to McQuinn into evidence against him because there was insufficient proof of a conspiracy between him and Raess by non-hearsay evidence and the statements were made outside of his presence.
The declarations of co-conspirators are admissible against all conspirators upon an independent, prima facie evidentiary showing of a conspiracy or joint venture between the declarant and one of the other defendants, insofar as such declarations are made in furtherance of and during the pendency of the conspiracy, even where there is no conspiracy indictment. (People v. Goodman (1980), 81 Ill. 2d 278, 408 N.E.2d 215.) In establishing a prima facie case for conspiracy, proof of the agreement, which is the essence of a conspiracy, need not be proved by direct evidence, but may be inferred from all the surrounding facts and circumstances, including the acts and declarations of the accused defendant. (People v. Fuller (1983), 117 Ill. App. 3d 1026, 1037, 454 N.E.2d 334.) The Dissent apparently disputes this later concept and feels that a prima facie case of conspiracy must be proved by direct evidence.
Here, however, the evidence showed that the defendant had the plastic bag containing a substance, which he admitted he knew was cocaine, in his possession, that he entered the gas station premises and waved and nodded to Raess, that defendant saw Raess in McQuinn's car, that he delivered to Raess the plastic bag in which the substance was clearly visible to McQuinn, and that the defendant and Lewis drove away with their car lights off. In addition, the defendant ran when the officers identified themselves and told him to stop. These actions of the defendant were sufficient to show that he came to the gas station with knowledge that the cocaine he possessed was to be sold by Raess and that he delivered it to Raess with the intent to promote the sale. We therefore hold that the defendant's contention is without merit and therefore the trial court properly admitted the statements made by Raess to McQuinn.
Defendant next contends that the evidence fails to prove beyond a reasonable doubt that he intentionally and knowingly delivered the cocaine to the undercover agent as charged in the indictment. We disagree.
The elements of accountability are (1) the defendant solicited, aided, abetted, agreed or attempted to aid another person in the planning or commission of the offense; (2) the participation must have taken place either before or during the commission of the offense; and (3) it must have been the concurrent, specific intent to promote or facilitate the commission of the offense. (People v. Zambetta (1985), 132 Ill. App. 3d 740, 477 N.E.2d 821.) Here, the evidence shows the defendant, Raess and McQuinn were all present for the drug transaction and that Raess conversed with the defendant immediately before the cocaine was handed to McQuinn, who was visible in the car. The defendant's actions both before and after the delivery of the drug manifest that he shared the common illegal purpose of effecting a sale to McQuinn.
For the reasons stated we affirm the judgment of the circuit court of Cook County. Pursuant to People v. Nicholls (1978), 71 Ill. 2d 166, 374 N.E.2d 194, we grant the State's request that defendant be assessed $50 as costs for ...