APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION
524 N.E.2d 1195, 171 Ill. App. 3d 232, 121 Ill. Dec. 147 1988.IL.859
Appeal from the Circuit Court of Cook County; the Hon. Christy S. Berkos, Judge, presiding.
PRESIDING JUSTICE WHITE delivered the opinion of the court. RIZZI, J., concurs. JUSTICE FREEMAN, Concurring in part and Dissenting in part.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WHITE
On March 19, 1984, Detective Patrick Flynn of the Chicago police department placed a telephone call to a number which an informant gave him. When he heard a beep which allowed him to leave a message, he punched in number 05174 and the number of the outdoor pay telephone from which he placed his call. Shortly thereafter he received a phone call at the pay phone from a person who called himself "Chino." Flynn said he wanted two grams of cocaine. Chino told him it would cost $200, and he told Flynn to go to a specific street corner and call again. Flynn did so and Chino told him Felix would deliver the cocaine. A few minutes later a person drove up and Flynn asked if he was Felix. He said he was, and he gave Flynn two small packets of cocaine in exchange for $200.
Flynn determined that the phone number he called was registered to Radio Relay Corporation, which operates a paging service. Beeper number 05174 belonged to Spaulding Auto Parts. Defendant signed Spaulding Auto Parts' lease for the beeper. Defendant also owned the building which that company listed as its address. Flynn obtained a photograph of defendant.
On April 6, 1984, Flynn again called the beeper number from a pay phone, and again a person using the name "Chino" called him back. Flynn requested two grams of cocaine and Chino told him to go to another intersection. Felix met Flynn at that intersection and exchanged packets containing cocaine for $200. Again on April 13, 1984, Flynn called the beeper number and a person who called himself "Chino" called back. The caller told Flynn that he did not need to call him "Chino" anymore, he could call him "Johnny." Johnny agreed to sell Flynn an eighth of an ounce of cocaine for $325. A person who called himself "Frog" delivered the cocaine. The next time Flynn called the beeper number, a person identifying himself as "Frog" called back, and Frog also delivered the cocaine purchased on that occasion.
On April 26, 1984, Flynn called the beeper number. The person who called back identified himself as "Johnny." Flynn recognized the caller's voice as the same as the voice of "Chino" and "Johnny" to whom he had spoken on prior occasions. Flynn arranged to purchase one-quarter of an ounce of cocaine for $575, and Felix delivered the cocaine. On May 3, 1984, and again on May 16, 1984, Johnny agreed to sell Flynn an ounce of cocaine. Felix delivered the cocaine on May 3, and a man who called himself "Julio" delivered the second ounce on May 16. Flynn called the beeper number from busy intersections to arrange all of his purchases. Most of his calls were returned by Johnny.
On June 11, 1984, Flynn obtained a court order permitting him to record his conversations with the persons who called him back when he called the beeper number. Flynn testified at trial that the person who called himself "Johnny" on the recordings had the same voice as the person who had arranged most of the earlier sales using the names "Chino" and "Johnny." On June 20, 1984, Flynn called the beeper number and Johnny called him back. Johnny agreed to sell Flynn eight ounces of cocaine for $15,000, and they decided to meet in the parking lot of a nearby Wendy's. When Flynn arrived at the parking lot he heard two whistles. He turned and saw defendant in a parked car. He asked defendant if he was Johnny and defendant said, "Yeah, man, I'm Johnny. Let's talk." Flynn testified that defendant's voice was the same as the voice of the Johnny with whom he had had about 30 telephone conversations. Defendant said he would not put the eight ounces of cocaine in the same place with the money, so he asked Flynn to give him the money and he would send Felix with the cocaine. Flynn refused to give defendant the money before he received the cocaine. Flynn testified that he went into Wendy's and sat down at a table and defendant subsequently joined him. However, they were unable to reach an agreement on the delivery of the cocaine. Flynn left Wendy's and called the beeper number again. Johnny called him back, and in that tape-recorded conversation Johnny made reference to his conversation with Flynn at Wendy's.
At trial the prosecutor showed Flynn the picture of defendant Flynn obtained when he discovered that defendant signed the contract for the beeper. The prosecutor asked what the picture was, and Flynn answered: "This is a Chicago Police Department identification --." The trial court sustained defense counsel's prompt objection, but it denied defendant's motion for a mistrial. Flynn testified that he recognized defendant when he first met him in the Wendy's parking lot as the person in the photograph.
On cross-examination Flynn admitted that in one tape-recorded conversation Johnny said, "Chino's the one that sent you to me, right?" Flynn maintained that Chino and Johnny had the same voice as defendant.
In closing argument defense counsel stated that the photographs in evidence which showed defendant talking to Flynn in the Wendy's parking lot were insufficient to establish that defendant had come to Wendy's in order to complete a cocaine deal. In his closing argument the prosecutor stated: "I certainly didn't hear any explanation for what this defendant was doing at Wendy's." The trial court overruled defense counsel's objection. The prosecutor continued: "He never once gave you an explanation for what this defendant --," and the trial court sustained defense counsel's objection. Later, the prosecutor again stated: "There is no other explanation for this defendant appearing there, other than --," and again the trial court sustained defense counsel's objection and instructed the jury to disregard the comment.
On appeal defendant argues that the State failed to prove beyond a reasonable doubt that he was involved in the sales which were completed. When Flynn met defendant in the Wendy's parking lot he recognized defendant's voice as the voice of "Johnny" and "Chino" with whom he had had about 30 telephone conversations. In four of those calls "Johnny" arranged to sell Flynn cocaine, and the transactions proceeded in accord with the arrangements Johnny made. In two other calls Chino arranged cocaine transactions. After Flynn met defendant in the parking lot of Wendy's and their deal fell through, Flynn called the beeper number and spoke to a person who called himself "Johnny." Johnny referred to details of the encounter at Wendy's. This evidence is sufficient to prove beyond a reasonable doubt that defendant was the "Johnny" who spoke to Flynn on the phone after the transaction at Wendy's fell through, and Flynn's identification was sufficient to prove beyond a reasonable doubt that the "Johnny" who spoke to him on that occasion was the same Johnny who had used that beeper number to arrange the completed sales to Flynn. Voice identification alone can be sufficient to prove guilt beyond a reasonable doubt. People v. Finney (1967), 88 Ill. App. 2d 204, 208-09, 232 N.E.2d 247, cert. denied (1968), 392 U.S. 936, 20 L. Ed. 2d 1394, 88 S. Ct. 2304.
Defendant maintains that Flynn's voice identification is incredible because he always spoke to Johnny on outdoor pay phones at busy intersections where there was considerable background noise, and Johnny once referred to Chino as a separate person, although Flynn testified that they were one and the same. These facts only go to the weight of Flynn's testimony; they do not establish that the jury could not believe Flynn. We hold that the evidence in this case was sufficient to prove beyond a reasonable doubt that defendant arranged the narcotics transactions which were completed.
Defendant next argues that the evidence was not sufficient to prove that he received income from the transactions. The State charged that defendant violated section 4(a) of the Narcotics Profit Forfeiture Act (Ill. Rev. Stat. 1983, ch. 56 1/2, par. 1654(a)). That section states:
"A person commits narcotics racketeering when he: (a) Receives income knowing such income to be derived, directly or indirectly, from a pattern of narcotics activity in which he participated, or for which he is accountable . . .."
The evidence shows that defendant spoke to Flynn on the telephone and arranged several narcotics transactions. Defendant signed the rental agreement for the beeper as an agent of Spaulding Auto Parts, and he owned the building that Spaulding Auto Parts used as its address. The State contends that this is adequate circumstantial evidence showing that defendant received income from the transactions "Circumstantial evidence is the proof of certain facts and circumstances in a given case from which the jury may infer other connected facts which usually and reasonably follow according to the common experience of mankind." (Devine v. Delano (1916), 272 Ill. 166, 179-80, 111 N.E. 742.) The jury may reasonably believe that persons who repeatedly arrange narcotics transactions usually receive income from the transactions.
Defendant contends that the circumstantial evidence is consistent with the hypothesis that defendant worked only as a switchboard operator for the transactions. However, it is difficult to reconcile this hypothesis with the fact that defendant on the phone referred to Felix as a person who would deliver the cocaine, and defendant himself came to discuss the largest transaction with Flynn at Wendy's. Moreover, if defendant derived any income from working as a switchboard operator for the transactions, he "[received] income . . . indirectly, from a pattern of narcotics activity" (Ill. Rev. Stat. 1983, ch. 56 1/2, par. 1654(a)), and Flynn's testimony establishes that defendant knew that the transactions he arranged on the phone were narcotics transactions. Defendant would be innocent only if he worked as an unpaid volunteer switchboard operator for the narcotics transactions. "Circumstantial evidence is generally sufficient to support a conviction if it is inconsistent with any reasonable hypothesis of innocence, but the trier of fact need not search out all possible explanations ...