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03/20/89 the People of the State of v. Cesar Garza

March 20, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

CESAR GARZA, DEFENDANT-APPELLANT

DEFENDANT, CESAR GARZA, APPEALS FROM HIS CONVICTION OF DELIVERY OF A CONTROLLED SUBSTANCE (ILL. RE

v.

STAT. 1985, CH. 56 1/2, PAR. 1401(B)(2)). THE SOLE ISSUE ON APPEAL IS WHETHER EVIDENCE OF DEFENDANT'S ABSENCE FROM TRIAL WAS IMPROPERLY COMMENTED ON BY THE PROSECUTOR.



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

536 N.E.2d 253, 180 Ill. App. 3d 820, 129 Ill. Dec. 569 1989.IL.363

Appeal from the Circuit Court of Du Page County; the Hon. Edward W. Kowal, Judge, presiding.

APPELLATE Judges:

JUSTICE LINDBERG delivered the opinion of the court. McLAREN and DUNN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LINDBERG

On January 31, 1986, defendant was arrested at the Highlake Tap for allegedly delivering cocaine to an undercover police officer. In March 1986, defendant was indicted on three counts of delivery of a controlled substance. Count III was severed from counts I and II. On November 19, 1986, defendant was convicted of count II and sentenced on January 5, 1987, to an extended term of 18 years. Defendant's bond was not revoked.

Also on January 5, 1987, defendant was informed that the trial on count III was set for January 7, and if he did not appear, he would be tried

At a pretrial hearing, the court advised counsel that he would inform the jury that although defendant was absent from trial, defendant was to be presumed innocent. The court decided that it would not reveal the details of defendant's absence.

During opening statements, the prosecutor informed the jury that defendant failed to appear on January 7, 1987; that a warrant was issued for his arrest; and that defendant forfeited a $350,000 bond. Defense counsel failed to object to these statements.

The State's main evidence against defendant was the testimony of the complaining witness, special agent Emad Eassa. Eassa testified that he met defendant at the Highlake Tap on three occasions to discuss and purchase cocaine from defendant. Eassa testified that he used the name "Eddie" and told defendant that he lived in Chicago. Eassa drove an undercover car with the license plate number YRC 520. Eassa described how each time he met with defendant he would call the bar to contact defendant. Eassa related that on January 31, 1986, he telephoned the bar and was instructed to call the public phone in the lobby of the bar. When Eassa dialed that number, defendant answered. Eassa told defendant that he wanted to buy cocaine. Defendant told Eassa to meet him at the bar.

Eassa further testified that when he arrived at the bar, defendant was not there. Eassa left the bar for about an hour and returned at approximately 8 p.m. At that time, defendant was playing pool in the bar. Eassa bought defendant a drink and then left the bar to inform the undercover officers waiting outside that he was going to try to purchase cocaine from defendant.

When Eassa returned to the bar and approached defendant, defendant told Eassa that he did not want to sell $3,500 worth of cocaine to him because defendant did not know Eassa well enough. Eassa, however, persuaded defendant to sell him $3,500 worth of cocaine. Eassa again left the bar and returned at approximately 9:15 p.m. Defendant then told Eassa to go to the men's room, where he would find something in the toilet paper roll. Defendant instructed Eassa to leave the money in the toilet paper roll. Defendant told Eassa that no one would be in the bathroom. Eassa found a bag filled with white powder, which subsequently tested positive for cocaine, in a toilet paper roll on top of the toilet tank. At that point, Eassa gave the signal to the officers waiting outside to arrest defendant.

Upon searching defendant's pockets, the police found an address book, three small folded paper packets containing a white powdery substance, and $3,255. The white powder also tested positive for cocaine. Copies of pages from the address book were admitted into evidence. One page of the book had the figures YRC 520 written on it. On another page, "Eddie/Chi" was written. The rest of the book was filled with numbers and names.

On cross-examination, Eassa stated that he was the only undercover officer in the bar that night and there were no witnesses to the transaction. He also admitted that he was not ...


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