APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT
508 N.E.2d 1163, 155 Ill. App. 3d 1015, 108 Ill. Dec. 586 1987.IL.701
Appeal from the Circuit Court of Vermilion County; the Hon. James K. Robinson, Judge, presiding.
JUSTICE GREEN delivered the opinion of the court. McCULLOUGH and KNECHT, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE GREEN
After a trial by jury in the circuit court of Vermilion County, a jury returned verdicts finding defendant, Everett Masters, guilty of counts charging him with the offenses of calculated criminal drug conspiracy (Ill. Rev. Stat. 1985, ch. 56 1/2, par. 1405(a)), delivery of a controlled substance (Ill. Rev. Stat. 1985, ch. 56 1/2, par. 1401(b)(7)), and possession of a controlled substance with intent to deliver (Ill. Rev. Stat. 1985, ch. 56 1/2, par. 1401(a)(7)). The court entered judgment only on the calculated criminal drug conspiracy verdict. That offense was a felony, and the court subsequently sentenced defendant to a term of imprisonment for 25 years and fined him $3,800.
Defendant has appealed, contending (1) the evidence did not justify a determination by the jury that his guilt of criminal drug conspiracy had been proved beyond a reasonable doubt; (2) the court erred in the admission of hearsay evidence; (3) the court erred in denying his motion to suppress evidence; and (4) the sentence was excessive. We disagree and affirm.
The most serious issue raised by defendant concerns the sufficiency of the proof. Section 405(b) of the Illinois Controlled Substances Act, which defines the offense of calculated criminal drug conspiracy, does so in these words:
"For purposes of this section, a person engages in a calculated criminal drug conspiracy when:
Section 8-2(a) of the Criminal Code of 1961 describes the offense of simple conspiracy as occurring "when, with intent that an offense be committed, [a person] agrees with another to the commission of that offense." (Emphasis added.) (Ill. Rev. Stat. 1985, ch. 38, par. 8-2(a).) That section also describes the commission of an act in furtherance of the conspiracy by one of the conspirators as an element of the offense. Thus, the provisions of section 405(b)(2) requiring that the conspiracy be "undertaken or carried on with two or more other persons" require that the person charged and two others must be parties to the agreement which is the basis of the offense of calculated criminal drug conspiracy. (People v. Harmison (1985), 108 Ill. 2d 197, 204, 483 N.E.2d 508, 511; People v. LeShoure (1985), 139 Ill. App. 3d 356, 487 N.E.2d 681.) The evidence here was uncontroverted that defendant violated section 401(b)(7) of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1985, ch. 56 1/2, par. 1401(b)(7)) prohibiting delivery of certain quantities of a controlled substance. The specific question involved is whether sufficient proof was made that he did so pursuant to an agreement with two others.
All of the evidence at trial was presented by the State and was mostly undisputed. The testimony shows the following sequence of events. On January 23, 1985, in Danville, Special Agent Mike Bane of the Vermilion County Metropolitan Enforcement Group had two telephone conversations with Troy Owens concerning the purchase by Bane of a narcotic known as lysergic acid diethylamide from Owens. In the second conversation, Owens stated to Bane that he had checked with a friend and could furnish Bane with 1,000 "hits" or small individual doses of LSD for $1,900. Bane indicated that he would like to purchase the 1,000 "hits." In a further telephone conversation on January 26, 1985, Owens told Bane he had not yet obtained the LSD but was expecting to obtain some. On January 28, 1985, Owens called Bane and told him that the LSD was then available. Owens asked Bane to meet him, give him the money, and then wait until Owens returned with the "hits." Bane refused, and Owens then directed Bane to meet him right away as his source was leaving to go to a nearby town. Bane had previously indicated to Owens that he had a friend who also wanted some LSD. Bane told Owens that he would get his friend and meet Owens.
The State's evidence further showed that Bane then drove with MEG Agent Frank Sporcich to a parking lot designated by Owens. They met Owens there, entered an automobile driven by Owens, and rode together to the Townhouse apartment complex in Danville. Owens told Bane and Sporcich to wait outside while he went into the building. Upon his return, Owens told them he had been told to bring the money for the purchase into the building. Owens did bring out a small quantity of tablets purported to be "hits." Owens described the person furnishing the LSD as his "partner." After some Discussion, Bane agreed to give the $1,900 to Owens. Owens then went into the apartment and returned with 10 bags purported to contain the 1,000 "hits" about which Owens and Bane had been bargaining. Owens said the LSD for Sporcich would not be available until payment was given him. Owens described the people Bane was dealing with as a friend of his, that person's friend, and a woman to whom the apartment belonged.
Owens had previously pointed out to Bane the apartment from which he had obtained the LSD. Bane decided that the time had arrived for making some arrests and sent a signal to police officers that he had arranged to have nearby to come forward. Several officers then arrived on the scene, and Owens ran up toward the apartment.
Upon arrival of the officers, Robert Putnam, who was in charge of the MEG group, and Sporcich immediately climbed the stairs to the apartment, forced their way in, found two men, defendant and Mark Belansky, and a woman in the apartment, and arrested all of them. Putnam asked the arrestees who had "the money," whereupon defendant produced a roll of money and handed it to Sporcich. The roll contained $1,380. Later, at a police station, Sporcich talked with defendant, who told Sporcich (1) Mark Belansky had telephoned him on January 28, 1985, requesting a supply of LSD the next day; ...