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10/13/87 the People of the State of v. Norman Lee Et Al.

October 13, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

NORMAN LEE ET AL., DEFENDANTS-APPELLANTS



Before he went to Phillips' apartment on May 10, Grant rendezvoused with a police drug-enforcement team in the parking lot of the Museum of Science & Industry in Chicago. Lieutenant Richard Sandberg of the IAD testified that at this time he placed a "Nagra" tape recorder and transmitter on Grant's person. Sergeant Chandler, also of the IAD, related that he thoroughly searched Grant's person and car, after which Grant was furnished with $3,400 in currency by Agent Wayne Kowalski of the Federal Drug Enforcement Administration. Sandberg, Chandler, Kowalski, and Officer Victor Howard of the IAD proceeded to follow Grant to Phillips' residence near 68th Street and Crandon in Chicago, where they parked and maintained surveillance of the building in which Phillips' apartment was located. Before entering the building, Grant activated the sound recording system.

APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

516 N.E.2d 360, 162 Ill. App. 3d 972, 114 Ill. Dec. 205 1987.IL.1531

Appeal from the Circuit Court of Cook County; the Hon. Joseph J. Urso, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE SCARIANO delivered the opinion of the court. STAMOS and HARTMAN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SCARIANO

After a bench trial, Edwin Phillips (Phillips) and Norman Lee (Lee) were found guilty of delivery and possession of over 30 grams of cocaine, a Class X felony, and were sentenced to 10 years' incarceration. On appeal, both defendants contend that reversible error was committed when the trial Judge audited certain tape-recorded conversations in the presence of only the prosecuting attorney. Lee also argues that: (1) it was not proved beyond a reasonable doubt that he was involved in the drug transaction; (2) there was insufficient proof that he delivered in excess of 30 grams of cocaine; and (3) the trial court erred in overruling objections to allegedly hearsay evidence. We affirm.

Pursuant to an investigation of Chicago police officers who were suspected of being involved in drug trafficking, in April 1982 the Internal Affairs Division of the Chicago police department executed a valid search warrant at the residence of Gregory Grant (Grant), a former police officer who had a long history of drug use as well as a record of disciplinary problems when he was a member of the police force. The search uncovered drugs, drug paraphernalia, and $15,000 cash, and, as a result thereof, Grant was charged with various drug-related offenses.

Grant subsequently entered into a plea bargaining agreement with the Cook County State's Attorney, the terms of which required him to cooperate with the IAD in its ongoing narcotics investigation. Accordingly, Grant agreed to record secretly any future conversations between himself and Phillips, a suspected drug user. Grant testified that he thereafter recorded two of his telephone conversations with Phillips on May 5, 1982, another on May 6, and five on May 10. During these conversations, a voice, which Grant identified as Phillips', related to Grant that he was selling half ounces of cocaine for $1,050. In the course of several of these Discussions, Phillips and Grant referred to a man named "Norman" in connection with the purchase of drugs. Phillips and Grant ultimately agreed that May 10, 1982, would be a suitable day for Grant to go to Phillips' apartment to purchase cocaine.

The recording thus made indicated that in addition to Grant, two other men were at Phillips' apartment that evening. At trial, Grant identified the voices of the other two men as belonging to the defendants. Although Lee was never mentioned in the tapes by his last name, Phillips and Grant were recorded as conversing with a third person named "Norman." According to Grant's account, after initial greetings, the three men stepped into the den and seated themselves at a table upon which Grant observed a triple beam scale containing a white powdery substance. He also related that he counted out $3,300 in the presence of Lee. The tape recording indicates that at this time Phillips told Grant that he had only one ounce of cocaine, and not the ounce and a half Grant had requested in their prior phone conversations. The voice Grant identified as Lee's stated, "That ain't no problem." Lee then left the apartment for approximately a half hour and returned with a clear plastic bag containing more white powder, which Grant assumed was more cocaine. Grant testified that Lee's and Phillips' white powder was then combined in one bag, which he accepted from Phillips in exchange for the money.

Shortly thereafter, Grant left the apartment, and, while under constant surveillance by the police team, he returned to the museum parking lot, where he was again thoroughly searched. The substance which he purchased was promptly field tested and determined to be cocaine. A subsequent lab analysis verified the field test results and also precisely measured the amount of the cocaine to be 40.85 grams. However, Phillips and Lee were not immediately arrested thereafter, due to the ongoing nature of the investigation, and consequently no large amounts of cash, drugs, or drug paraphernalia were recovered from either of the defendants. The State's Attorney's office subsequently took possession of the taped record of the drug transaction.

At Phillips and Lee's consolidated trial, the State relied to a great degree on the taped conversations in order to prove the guilt of the two defendants. According to the prosecution, the tapes show "the entire drug transaction," and are the "crux of the case." Grant's testimony was also crucial, particularly with regard to identifying Lee as the third party involved in the transaction. Officers Sandberg and Chandler testified in great detail to the strict procedures that were followed in obtaining the cocaine, including thorough searches of Grant's person immediately before arriving at and after leaving Phillips' apartment, in order to establish a secure chain of evidence. The defense, on the other hand, presented only two witnesses: Captain Ronald Nash of the Chicago police department testified that Grant was untrustworthy, and that anything he says should be "taken with a grain of salt." Phillips' wife claimed that Grant and her husband were the only people in the apartment on the night of the alleged drug transaction and that she did not see any cocaine that evening.

On July 24, 1984, when the defense rested its case, Phillips' counsel suggested that the trial Judge consider reviewing the tapes before final arguments and rendering a decision. There was no objection from the State or from Lee's attorney, and the Judge agreed that it was a good idea to give the recordings another audition. Accordingly, the Judge instructed the State to "make arrangements with your sound people that I can listen to the tape," and he indicated that he would do so on August 1. The Judge said nothing about allowing the respective attorneys to attend the session when he would listen to the recorded evidence. Between the time of the defense's request and summation by counsel, which was had on August 16, 1984, the Judge listened to the tapes for one hour in chambers in the presence of only the prosecutor. The record is unclear on which date precisely the Judge reviewed the tapes.

Defense counsel assert that they learned only shortly before closing arguments of the circumstances under which the Judge reviewed the tapes. However, the record discloses that no objection was raised either prior to or during summation concerning any alleged impropriety on the part of the Judge and the assistant State's Attorney; instead, the defendants waited until the time to file post-trial motions to ...


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