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02/23/89 the People of the State of v. Miguel Vazquez

February 23, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

MIGUEL VAZQUEZ, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION

535 N.E.2d 981, 180 Ill. App. 3d 270, 129 Ill. Dec. 216 1989.IL.229

Appeal from the Circuit Court of Cook County; the Hon. Themis Karnezis, Judge, presiding.

APPELLATE Judges:

JUSTICE JOHNSON delivered the opinion of the court. JIGANTI, P.J., and LINN, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE JOHNSON

Miguel Vazquez, defendant, was charged by information with the unlawful delivery of a controlled substance, in violation of section 401 of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1983, ch. 56 1/2, par. 1401(a)(2)). Defendant was found guilty after a jury trial in the circuit court of Cook County and sentenced to 10 years in the Illinois Department of Corrections. On appeal, defendant raises the following three issues for our review: (1) whether he was proved guilty beyond a reasonable doubt of delivering more than 30 grams of a controlled substance; (2) whether the court properly admitted evidence of a purported earlier unlawful delivery of a controlled substance by him; and (3) whether the opening and closing statements by the prosecution deprived him of a fair trial.

We affirm.

Defendant was convicted of the unlawful delivery of 45.76 grams of cocaine to undercover Detective Patrick Flynn. On July 2, 1985, Detective Flynn purchased cocaine from a party identifying himself as "Mike." Detective Flynn identified defendant as "Mike." At trial, Detective Flynn testified that he had purchased cocaine from defendant on a previous occasion.

Flynn testified that on June 12, 1985, he placed a telephone call to a woman named "Norma," with the intention of purchasing cocaine. He gave Norma his beeper number as a means of contacting him. Approximately one hour later, when Flynn answered his page, he spoke with a man who identified himself as "Mike." Flynn told Mike that he wanted to buy one or two ounces of cocaine. Mike then arranged to meet Flynn at the gas station located at California and Diversey Avenues in Chicago.

Flynn arrived at the gas station with his partner, undercover Chicago police officer Kathleen Brannigan. A surveillance team consisting of Sergeant Emmett Boyd and Officers Calvin Holiday and Richard Peck were assigned to work with Flynn.

Mike met with Flynn and Brannigan and instructed them to drive to an alley behind 2740 North California Avenue. Flynn met Mike at the alley and was then told to follow him to the basement of 2738 North California. Mike gave Flynn a clear plastic bag containing white powder. Flynn, in exchange, gave Mike $1,700 of previously recorded Chicago police department money. Flynn, Brannigan, and surveillance team member Holiday each identified the defendant as Mike.

The substance was tested by Flynn and found to be cocaine. William Tyrell, a Chicago police department chemist, also tested the substance and identified it as cocaine.

A case report was written by Flynn that described Mike as being approximately 37 years of age, weighing 155 pounds, and having brown eyes, an olive complexion, and facial hair. This description was based on Flynn's personal observation of Mike during the five-minute drug transaction. Brannigan and Holiday adopted this description based on their personal observations of Mike.

On July 2, 1985, Flynn and Mike again made contact by telephone. Brannigan was present when the call was made. Flynn spoke to the party who identified himself as Mike. He recognized the voice as being that of the same person with whom he spoke on June 12, 1985.

Flynn testified that, during this conversation, it was agreed that Mike would sell him two ounces of cocaine for $3,600. Flynn was to go to 2738 North California, the same location as the June 12 transaction, and call the same number. Mike would then meet him within minutes. Another surveillance team was organized by Flynn, which consisted of Officers Brannigan, Darcy, Holiday, and Abbott, and Sergeant Boyd.

Flynn testified that he met Mike on the street in the vicinity of 2800 North California. Mike informed Flynn that he could only get 1 1/2 grams of cocaine. Flynn agreed to pay $2,400 for this amount. Mike gave the two bags of cocaine to Flynn at another location, 2738-40 North California. Flynn then informed Mike that he would have to come to his car, located at the restaurant parking lot near the corner of Diversey and California, for payment.

Brannigan and the surveillance team awaited Flynn's and Mike's arrival at the parking lot. Prior to the time that Flynn actually turned the money over, the surveillance team approached and placed defendant under arrest for both the July 2 and the June 12 deliveries. After the arrest, Brannigan noticed that Flynn, upon his return to the car, carried two clear plastic bags of what appeared to be cocaine.

Flynn prepared another case report describing defendant as 34 years of age, weighing 170 pounds, and having hazel eyes. An identification card and $10 were recovered from defendant at the time of his arrest.

Flynn field tested the substance in the two bags, using the marquis test, and found the substance to contain cocaine. At trial, Flynn testified that the seal on the bags had not been broken except for ...


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