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12/28/88 the People of the State of v. William A. Sauer

December 28, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

WILLIAM A. SAUER, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

532 N.E.2d 946, 177 Ill. App. 3d 870, 127 Ill. Dec. 117 1988.IL.1893

Appeal from the Circuit Court of Du Page County; the Hon. John J. Bowman, Judge, presiding.

APPELLATE Judges:

JUSTICE DUNN delivered the opinion of the court. WOODWARD and NASH, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE DUNN

Defendant, William Sauer, appeals from his jury conviction of two counts of unlawful delivery of 30 grams or more of a controlled substance (Ill. Rev. Stat. 1985, ch. 56 1/2, par. 1401(a)(2)). He was sentenced to concurrent terms of 8 1/2 years' imprisonment on each count, and also fined $42,620 on count I, and $900,000 on count II.

Defendant raises six issues for appeal: (1) whether the evidence proved defendant guilty beyond a reasonable doubt; (2) whether the requirements to admit coconspirator's hearsay statements were satisfied; (3) whether there was probable cause to arrest defendant; (4) whether evidence of prior drug sales should have been admitted; (5) whether the prosecutor's cross-examination of defendant concerning post-arrest statements violated due process; (6) whether defendant was denied due process as a result of the prosecutor's improper remarks at closing argument. For the reasons set forth below, we affirm.

The evidence at trial is summarized as follows. At about 8 p.m. on October 2, 1986, drug agents for the Du Page Metropolitan Enforcement Group observed defendant and William Mueller parked in a white Oldsmobile outside George Rantis' apartment. Rantis was working with the drug agents after being arrested the day before for illegal possession of cocaine with intent to deliver. He arranged earlier in the day to purchase cocaine from Mueller. According to the testimony of Agent Michael Sullivan, the defendant and Mueller engaged in a conversation just before Mueller exited the Oldsmobile. Mueller then grabbed a cardboard box from the front seat of the car. After Mueller entered the apartment building, defendant slid over to the driver's side of the car and moved it closer to the building's entrance. He left the car running and dimmed the lights. Meanwhile in Rantis' apartment, Mueller revealed a bag of cocaine that had been in a gym bag inside the box. Mueller gave Rantis the cocaine, and Rantis gave Mueller $2,000. The two discussed making a larger cocaine deal where they would split the profits; then Mueller left. He drove away with defendant as a passenger. No arrest was made at this time.

On the following day, October 3, 1986, Rantis, at the request of the agents, arranged to buy at least a kilo of cocaine from Mueller. The agents recorded several phone conversations between Rantis and Mueller. A tape of the conversations was submitted to the jury. Rantis testified that Mueller talked in code using real estate terms for drug terms and referred to the defendant in his conversations by his nickname "Grape." In one conversation, Mueller told Rantis to meet him at the gas station by the Falco's Pizza on Route 83. Mueller stated that he would be in one car and the "Grape" would be in another.

Agent James O'Brien drove with Rantis to the gas station. O'Brien observed Mueller standing near a telephone at the gas station parking lot and defendant standing near a Toyota located in Falco's parking lot. With Agent O'Brien staying behind, Rantis met with Mueller and walked back to the rear of the Toyota. There is some disagreement about what happened next. O'Brien testified that he believed Mueller opened the trunk, though he did not see him insert a key to open it. He testified that he did not see defendant at this time. Rantis testified that defendant got out of the Toyota and opened the trunk. Agent Charles Dvorak testified that he saw defendant standing at the back of the car near Rantis and Mueller when the trunk was opened, though he did not see who opened the trunk. After the trunk was opened, Rantis grabbed a gym bag and shaving bag and brought it back to O'Brien. Inside were three kilos of cocaine, weighing approximately six pounds. O'Brien gave the arrest signal; defendant and Mueller were standing in front of the white Oldsmobile talking when they were arrested.

Over defendant's objection, the State also presented evidence of two other drug transactions involving defendant. Rantis testified that in August 1986, Mueller and defendant picked him up and proceeded to Skip Anderson's house. On the way, Rantis observed a gym bag. He was told by Mueller that they were going by Anderson's house because Mueller and the defendant had a kilo for him. Defendant then stated that he did not want to deal with Skip because Skip was always complaining. When they arrived at Anderson's, Mueller and defendant brought the gym bag and met Anderson in his garage. Rantis did not go with them. When they came out a few minutes later, defendant was holding cash tied with rubber bands.

Rantis also testified that on September 27 or 28, 1986, defendant and Mueller came to Rantis' apartment. Defendant brought Rantis a package of cocaine. Rantis asked Mueller if he should keep the cocaine, and Mueller replied yes. Rantis explained that he did not pay for the cocaine at this time because he had an arrangement with Mueller where he would pay Mueller for what he sold.

Defendant testified that he was not involved in any drug sales, that Mueller was a companion and legitimate business partner in a real estate construction business that also included Rantis, and that he did not know that Mueller was selling cocaine on October 2 and 3. On October 2, 1986, he drove with Mueller to Rantis' apartment, but he never saw a box in the car and he never moved the car forward. On October 3, he had no knowledge that cocaine was inside the bags in the trunk of the Toyota. On that day, Mueller told him he could use his locker at the Chalet Health Club and asked him to bring back a gym bag he had in the locker. Mueller also asked defendant if he would drive his girlfriend's Toyota to the club because the battery needed charging. Defendant testified that he did not pick up the gym bag from the club, though he did take Mueller's shaving kit. Then, while driving from the health club, defendant passed Mueller driving the other way. The two stopped, and Mueller asked defendant to go back to the club to get the gym bag. Defendant went back to the club to get the bag and found Mueller in the health club parking lot. Mueller told defendant that he noticed the Toyota had a headlight out. At Mueller's request, defendant followed Mueller to the gas station on Route 83 to fix the headlight.

As for September 27 or 28, defendant testified that he accompanied Mueller to Rantis' apartment and saw Rantis put away a scale and a plastic bag with white powder. Then, Rantis gave Mueller a large amount of money. Defendant testified that he later voiced his disapproval to Mueller. As for the trip to Anderson's, defendant testified that he went to Anderson's in August ...


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