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04/04/88 the People of the State of v. Michael Pira

April 4, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

MICHAEL PIRA, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

521 N.E.2d 1236, 167 Ill. App. 3d 647, 118 Ill. Dec. 543 1988.IL.486

Appeal from the Circuit Court of Lake County; the Hon. William D. Block, Judge, presiding.

APPELLATE Judges:

JUSTICE DUNN delivered the opinion of the court. LINDBERG, P.J., and HOPF, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE DUNN

Defendant, Michael Pira, was indicted by the grand jury of Lake County with one count of unlawful possession of a controlled substance (cocaine) with intent to deliver (Ill. Rev. Stat. 1985, ch. 56 1/2, par. 1401(a)(2)), one count of unlawful possession of a controlled substance (Ill. Rev. Stat. 1985, ch. 56 1/2, par. 1402(a)(2)), and one count of conspiracy (Ill. Rev. Stat. 1985, ch. 38, par. 8-2(a)). After a bench trial, he was found guilty of both possession offenses, and the conspiracy charge was dismissed. Defendant was sentenced to a term of eight years' imprisonment in the Department of Corrections for possession with intent to deliver and was assessed court costs and fines in the amount of $14,000. On appeal, defendant argues, among other things, that he was not found guilty beyond a reasonable doubt, that there was no probable cause for his arrest, that evidence was erroneously admitted, and that he was denied a fair trial due to prosecutorial misconduct. We affirm.

Defendant's arrest on the night of February 21, 1986, was the result of an undercover police investigation led by Special Agent Roosevelt Davis of the Illinois State Police. Also arrested with defendant were Anthony Zito, Thomas Osvath and Kevin Dombrowski. Charges against Dombrowski were eventually nol-prossed. After the State reduced the charges against him, Osvath pleaded guilty to unlawful possession of a controlled substance and testified against defendant and Zito.

Agent Davis testified both at trial and at a hearing on defendant's motion to quash arrest and suppress evidence. In both instances, his descriptions of the events leading to defendant's arrest were the same, so this opinion will, for the most part, rely on Davis' trial testimony. At the hearing on the motion to suppress, however, Davis also testified that he had bought a gram of cocaine from Osvath on January 29, 1986. He testified that Osvath had taken him to the Z-Gathering Lounge in Des Plaines, where they saw Zito in Zito's silver Audi. Davis gave Osvath money; Osvath met with Zito and came back with a packet of cocaine.

At trial Davis testified that on February 18, 1986, he again contacted Osvath and asked if Osvath could arrange the purchase of a kilogram of cocaine. Osvath said he would have to contact his source. Osvath later told Davis that he could obtain one-fourth of a kilogram. Davis spoke with Osvath again on February 19, and Osvath told him he could get eight ounces of cocaine for $1,700 per ounce. Davis told Osvath he would call the next day to arrange the purchase.

On February 20, 1986, Davis and Osvath agreed to meet at 10 p.m., but they did not meet then. Osvath later contacted Davis and told him he was waiting for "Tony" at a bar. Later that night, Osvath again contacted Davis and said that the cocaine had not been delivered. Davis said he would contact Osvath the next day. On the 21st, Osvath told Davis that Tony's Audi had been in an accident the night before. Later that day, Osvath and Davis again discussed the purchase of eight ounces of cocaine, and Davis told Osvath that he would buy cocaine elsewhere if Osvath did not contact him by 8:30 that night. At 8 p.m., Osvath told Davis that he was at a bar and had tested part of the cocaine. Davis told Osvath he would meet him at the Z-Gathering Lounge at 10 p.m. Before meeting with Osvath, however, Davis met with other police officers, who were to conduct surveillance of the purchase, at the State Police headquarters in Des Plaines.

At 10 p.m., Davis called Osvath to tell him he was on his way. Osvath said that all the cocaine was not at the bar and that they would have to drive a short distance to get it. Davis expressed displeasure with the way the deal was unfolding and asked to speak to Tony. Tony said they would have to drive to Lake County because his source was "hot" in Cook County. Davis then met Osvath at the Z-Gathering Lounge. Osvath got in Davis' car, and they drove to meet Zito at the Pot/Pan restaurant. Davis followed Zito and Osvath north on Rand Road into Lake County. At 11:30, Zito stopped at a gas station in Fox Lake, Illinois. He made a phone call and hung up without talking. The phone then rang, and Zito had a conversation. Zito told Davis that he had contacted his source and that the cocaine would be brought to the parking lot of a McDonald's restaurant down the street. Davis then called the police operator and also noticed the phone number on the telephone Zito had used.

Davis followed Zito and Osvath to the McDonald's and parked in the north portion of the lot facing south. Osvath got into Davis' car and Zito came to the driver's side. Zito told Osvath to make sure the money was all there. Zito moved his car, which had been next to Davis' car, to the west end of the lot facing west. West of the lot was a frozen lake. Davis asked Osvath how long it would be before the cocaine would arrive, and Osvath said it would be brought on snowmobiles. Zito flashed his headlights towards the lake, and Davis saw two lights approaching the lot from the west. Davis saw both lights flash. The snowmobile riders, both dressed in black and wearing black helmets, parked on the lake and met Zito on the ice west of the lot. Zito came back and asked for the money for the cocaine. Davis said he would not give over the money until he had the cocaine. Zito walked back towards the ice, and Davis moved his car next to Zito's. Zito met the riders again, and Davis told Osvath, who had been helping him count the money, to go make sure the cocaine was there. When Davis saw Osvath, Zito and defendant look into a brown bag held by defendant, he gave the arrest signal. Davis jumped down to the ice and arrested defendant. He saw the brown bag on the ice near defendant, recovered it after securing defendant, and found that it contained a clear plastic bag of white powder. Davis searched defendant and found a telephone pager which displayed the same number as the phone that Zito used at the gas station. The four arrestees were taken to the Fox Lake police department for processing. Davis also testified regarding the processing of the bag of powder.

On cross-examination, Davis testified that, although both snowmobile riders were dressed in black with helmets, they were not standing together when he saw the one closer to him holding the bag. Davis did not lose sight of the closer one, and Davis himself arrested that rider.

Several other officers involved in the arrests also testified. None of them saw defendant or anyone other than Davis with the bag, but none of them were as close to defendant as Davis was. Their testimony as to the sequence of events from the Z-Gathering Lounge to the McDonald's, however, essentially corroborates Davis' testimony. Those in position to see also testified to seeing the snowmobiles arrive, although none testified that the approaching lights flashed. Officer Collins ...


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