APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT
516 N.E.2d 1357, 163 Ill. App. 3d 1039, 115 Ill. Dec. 1 1987.IL.1828
Appeal from the Circuit Court of Morgan County; the Hon. J. David Bone, Judge, presiding.
JUSTICE McCULLOUGH delivered the opinion of the court. KNECHT and SPITZ, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCCULLOUGH
After a jury trial, defendant was convicted of unlawful delivery of a controlled substance (cocaine) and armed violence based upon the unlawful delivery of a controlled substance. (Ill. Rev. Stat. 1985, ch. 56 1/2, par. 1401(a)(2); ch. 38, par. 33A-2.) Subsequently, the trial court sentenced defendant to 12 years' incarceration, imposed a street-value fine of $48,000, and a county fine of $7,000 on the unlawful delivery conviction. The trial court sentenced defendant to a concurrent term of 15 years' incarceration on the armed violence conviction.
Defendant appeals arguing: (1) the trial court coerced the jury's verdict by tendering a premature Prim (People v. Prim (1972), 53 Ill. 2d 62, 71-72, 289 N.E.2d 601, 607, cert. denied (1973), 412 U.S. 918, 37 L. Ed. 2d 144, 93 S. Ct. 2731) instruction and inquiring into its numerical division; (2) the prosecutor's questioning and closing argument were impermissible comments on defendant's post-arrest silence; (3) the unlawful delivery of a controlled substance conviction must be vacated; (4) the trial court erred in considering the presence of a weapon as an aggravating factor; and (5) defendant's sentence is grossly disparate to that of his codefendant.
We affirm the conviction and sentence for armed violence and vacate the conviction and sentence for unlawful delivery of a controlled substance.
Gerald Kempf, an undercover agent, testified that on February 2, 1984, he contacted a Pat Ryan by telephone to set up the purchase of cocaine. Ryan agreed to sell cocaine which was 80% to 85% pure at $2,000 an ounce. On February 6, Kempf again talked to Ryan but told Ryan he was running a few thousand dollars short of the purchase price. He asked if Ryan had the package and Ryan responded that he did. Kempf called Ryan again on February 9. They set up a meeting for the following day. Ryan told Kempf the package was ready and asked Kempf to call Ryan when he got into town. Kempf had ordered 1 1/2 pounds of cocaine.
On February 10, 1984, Kempf and Ryan met at a restaurant. Kempf testified that he saw Ryan arrive in a small blue Honda. Someone was sitting in the back, passenger side seat of the Honda. No one else was in the car. While in the restaurant, Kempf and Ryan referred to the cocaine as diamonds because they were in a crowded area. Ryan asked Kempf to follow him. Kempf followed the vehicle to a shopping mall. Kempf asked if the person in the car was all right. Ryan responded he was. Ryan got out of the vehicle and removed a paper sack from its trunk. Kempf entered the vehicle on the passenger side and sat with his back to the windshield. He was facing defendant.
Kempf introduced himself to defendant, who removed his right hand from his coat pocket and shook hands. Defendant was two to three feet away. He stated his name was Bill but did not otherwise speak. Ryan placed the paper sack between the bucket seats of the vehicle on the console. Kempf opened it, removed a cardboard box, turned it over, and opened it. Inside was a plastic bag containing a white powder. Kempf simulated tasting it and asked Ryan if it was the same cocaine as was contained in the sample. Ryan responded it was. Kempf told Ryan he would take the cocaine. They talked while in the car about whether he could make additional purchases of cocaine. Kempf arrested defendant and Ryan when they started to leave.
Michael Cravens, a forensic scientist, testified that the substance weighed 1 1/2 pounds and tested positive for cocaine. He also tested the bowl of a spoon which was submitted for analysis. Cocaine residue was found in it.
Terry Wubker, an investigator with the Illinois Division of Criminal Investigations, testified that he observed defendant in the rear passenger seat of the Honda. He maintained a surveillance on the car until the signal to arrest its occupants. Kempf had Ryan in a search position when Wubker arrived. However, Wubker assisted in defendant's arrest. As Wubker searched defendant, he asked if defendant was carrying any weapons. Defendant responded that he was. Wubker removed a loaded .357 Magnum revolver from defendant's pocket. He also removed a small derringer from the same pocket. The derringer was loaded with hollow-point bullets, which explode on impact.
Wubker further testified that after he placed defendant in the squad car, defendant said this was what you got when you did a man a favor. Wubker read defendant's Miranda rights to him. Subsequently, defendant repeated this statement. Then, defendant said that they had talked about this and they had decided not to do it. He hoped that the transaction was on tape because it would show that he had nothing to do with it. The police would not find his fingerprints on anything. He then stated that he had tried to talk Ryan out of it. However, Ryan was afraid of being killed. Therefore, he came along for protection. At the jail, defendant asked Wubker why he had been handcuffed with his ...