APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION
527 N.E.2d 312, 172 Ill. App. 3d 1096, 122 Ill. Dec. 814 1988.IL.435
Appeal from the Circuit Court of Cook County; the Hon. Stephen A. Schiller, Judge, presiding.
JUSTICE QUINLAN delivered the opinion of the court. O'CONNOR and MANNING, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE QUINLAN
On October 14, 1984, Oscar Pintos, Ramon Sosa, and Manuel Diaz were each arrested and subsequently charged with intent to deliver more than 30 grams of a controlled substance (Ill. Rev. Stat. 1983, ch. 56 1/2, par. 1401(a)) and with calculated criminal drug conspiracy (Ill. Rev. Stat. 1983, ch. 56 1/2, par. 1405). Special agents of the Northeast Metropolitan Enforcement Group in the Chicago area recovered nine kilograms of approximately 90% pure cocaine at the time of the arrest. Sosa and Pintos were tried simultaneously; Pintos in a bench trial and Sosa in a jury trial. The trial court below found Pintos guilty of intent to deliver and not guilty of criminal drug conspiracy and sentenced him to eight years' imprisonment. Pintos now appeals his conviction. Sosa is not a party to this appeal.
An informant, Diana Brown, introduced undercover narcotics police officer John Mueller to Manuel Diaz, a Florida resident, who was Brown's contact for cocaine, and a meeting was set up in Chicago for October 13, 1984, between Brown, Mueller, and Diaz. Thereafter, special agents from MEG and the Federal Drug Enforcement Agency observed Diaz arrive from Florida at O'Hare International Airport in Chicago, Illinois, on October 13, 1984, at approximately 12:40 p.m. The agents followed Diaz to the Westin Hotel in Rosemont, Illinois, and later that evening, set up surveillance in rooms 818 and 819, which were across from rooms 808 and 809, which Diaz had reserved. Diaz met with Brown and Mueller at a Chicago restaurant, and Diaz told Mueller that he could deliver eight kilograms of practically pure cocaine for $340,000. However, in order to complete the deal, Diaz told Mueller that he had to get back to his hotel room by 11 p.m. because "he had to meet the drivers who were driving the coke up from Florida."
At about 1:40 on the morning of October 14, 1984, agents from both the MEG and the DEA, looking through the peephole in the door of room 819, observed two men standing in front of the door to Diaz' room. The man later identified as Sosa was carrying a large giftwrapped box and the man subsequently identified as Pintos was carrying a garment bag and a flight bag. Pintos knocked on Diaz' door, and Diaz admitted the two men. Shortly thereafter, all three men exited room 809 with the box and walked next door to room 808, which Diaz opened with a key. Diaz then returned to his room alone and Sosa and Pintos spent the night in room 808, where the box remained.
At approximately eight o'clock the next morning, Diaz contacted Mueller to set up a meeting in Diaz' room. After the telephone conversation, the agents saw Diaz leave his room, knock on the door of room 808, and enter when the door was opened. The agents then observed room service enter room 808, and, a short time later, they observed Diaz exit room 808 and return to his room, where he remained until Mueller arrived. The agents observed Mueller knock on the door of room 809 and be admitted. Diaz was then observed emerging from room 809, going to room 808, knocking on the door, entering that room, and then leaving with the gift-wrapped box moments later and returning to room 809. The agents testified that when Diaz carried the box from room 808 to room 809 the flaps to the box were open and protruded up an inch or two from the surface of the box, but that the contents of the box were not visible.
At trial, Mueller testified that when the box was opened by Diaz in room 809, there were nine individually wrapped kilograms of cocaine in the box. He stated that, at that time, he performed a field test on the cocaine and then told Diaz that he had to leave but that he would return shortly with the money. Once he was in the hallway, Mueller signalled to the agents in rooms 818 and 819 that the drugs were in room 809. Mueller then knocked on Diaz' door and when he opened it, the agents placed Diaz under arrest and confiscated nine kilograms of cocaine. The agents next knocked on the door to room 808, which had been slammed shut during the arrest of Diaz, identified themselves as police officers, and arrested Pintos and Sosa when the door was opened.
In this appeal, defendant Pintos raises two issues: (1) whether the evidence presented at trial was sufficient to establish that Pintos knowingly possessed the cocaine with intent to deliver it to the undercover agent, Mueller, or, if not, whether he was legally accountable for its possession by another, i.e., Sosa; and (2) whether the trial court erred when it admitted the hearsay statements of the coconspirator, Diaz, which referred to the arrival of the "drivers" at the hotel, under the coconspirator exception to the hearsay rule.
Defendant Pintos first contends that the evidence presented at his bench trial was insufficient as a matter of law to sustain his conviction on the charge of possession with intent to deliver a controlled substance. To support a conviction for unlawful possession of narcotics with an intent to deliver, the State must establish that the defendant had knowledge of the presence of narcotics, that the narcotics were in the immediate control or possession of the defendant, and that the amount of narcotics was in excess of any amount which might be viewed as merely possessed for personal use. (People v. Embry (1960), 20 Ill. 2d 331, 334, 169 N.E.2d 767, 768; People v. Knight (1985), 133 Ill. App. 3d 248, 259, 478 N.E.2d 1082, 1091.) The standard to be applied on review of determinations of whether a defendant had possession and knowledge of the narcotics is that the fact findings of the trial court will only be overturned where the evidence is so palpably contrary to the verdict or judgment that it is unreasonable, improbable or unsatisfactory and, thus, creates a reasonable doubt of guilt. (People v. Knight, 133 Ill. App. 3d at 258, 478 N.E.2d at 1091.) Moreover, it is not necessary that the evidence presented at trial exclude every possible doubt, so long as the entire chain of circumstances leads to a reasonable and moral certainty that the accused committed the crime. People v. Williams (1977), 66 Ill. 2d 478, 484-85, 363 N.E.2d 801, 804.
The first element that must be proven here is Pintos' knowledge of the presence of the narcotics. This element of knowledge is rarely susceptible of direct proof, but it can be proven from the evidence of acts, declarations or conduct of the accused from which an inference can be fairly drawn that defendant knew of the existence of the narcotics at the ...