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03/23/89 the People of the State of v. Charles R. Duckworth

March 23, 1989





536 N.E.2d 469, 180 Ill. App. 3d 792, 129 Ill. Dec. 629 1989.IL.396

Appeal from the Circuit Court of Vermilion County; the Hon. John P. O'Rourke, Judge, presiding.


JUSTICE GREEN delivered the opinion of the court. LUND and SPITZ, JJ., concur.


Defendant Charles R. Duckworth was tried jointly with codefendant Tammy Duckworth on charges that they knowingly delivered a controlled substance in violation of section 401(a)(2) of the Illinois Controlled Substances Act (Act). (Ill. Rev. Stat. 1987, ch. 56 1/2, par. 1401(a)(2).) On April 29, 1988, the circuit court of Vermilion County entered judgment on jury verdicts finding both guilty of that offense. Defendant now appeals, contending (1) the court erred in admitting certain hearsay statements allegedly made by the co-defendant and (2) the State failed to prove him guilty of the offense beyond a reasonable doubt. We reverse.

The testimony presented during the trial in this cause shows the following sequence of events, which was not contradicted. In July 1987, special agent Richard Scott of the Quad City Metropolitan Enforcement Group learned about a potential drug contact by the name of Tammy Duckworth through a confidential source. On July 8, 1987, Scott made two telephone calls to a woman in Danville. He later learned the voice of the woman he talked with on that date belonged to Tammy Duckworth.

Scott testified that, during the conversations with Tammy Duckworth, she agreed to sell him three ounces of cocaine every three to four weeks. He said she further informed him she would get the cocaine from an uncle who lived next door to her and the uncle told her each ounce of cocaine would cost $1,400. Scott and Tammy Duckworth arranged to meet on July 10, 1987, at the Village Mall in Danville to consummate the deal they had made.

On July 10, 1987, Scott arrived in Danville and proceeded to the arranged point with a Vermilion County surveillance team. He telephoned Tammy Duckworth, and she told him she would be driving a white Buick. He subsequently saw a vehicle fitting that description pull into the mall parking lot. He waved the driver over and asked her if her name was Tammy, to which she responded it was. Scott said that, when she entered his car, she told him "her uncle was going to be the source . . . and that her uncle had to show his man the money" before Scott could get the cocaine.

Scott refused to turn the money over to her without receiving the drugs but said he "suggested to her that she have her uncle drive to the Village Mall [and] park a couple rows away from [his] car." Scott said she could then go between his car and her uncle's car with the cocaine, and he would give her the money. Tammy Duckworth left briefly and returned a second time. She informed Scott she could not get three ounces but could only obtain an ounce and a half of cocaine. Scott agreed to purchase the lesser amount for $2,700, and Tammy Duckworth again left the mall parking lot. Scott said that, when Tammy Duckworth later returned to his vehicle, she gave him two bags of a powdery substance thereafter proved to be cocaine. Scott proceeded to count out the money and signaled the surveillance units that the deal had been made. Tammy Duckworth was then placed under arrest.

Robert Putnam, one of the surveillance officers positioned at the mall parking lot, witnessed the first two contacts between Tammy Duckworth and Agent Scott. He said he subsequently saw a blue van enter the parking lot and park nearby. Tammy Duckworth exited the passenger side of the van, walked past the surveillance vehicle and entered Scott's car. Putnam was then notified delivery had been made. Putnam and another surveillance officer approached the van and ordered the man sitting in the driver's side to exit the vehicle. The man, defendant Charles Duckworth, was then placed under arrest. Another female passenger of the van was also arrested. Another surveillance officer, Jack Smith, corroborated the testimony given by Putnam.

Ordinarily, we would first address a reasonable doubt question raised by an accused, for resolution of such an issue could well decide the outcome of a case. However, because we conclude error occurred here in admitting certain hearsay evidence, we need not address the sufficiency of proof. Clearly, absent such hearsay evidence, the evidence is insufficient to convict defendant of the offense of delivery of a controlled substance beyond a reasonable doubt.

During trial, when the prosecution attempted to elicit the details of the conversations had between Scott and Tammy Duckworth, defendant's attorney objected to such testimony on hearsay grounds. He stated he thought "the conversation that the agent [was] probably going to get into -- he's going to make reference to Tammy Duckworth saying that her uncle was going to be her source. I think that that is clearly hearsay." The court overruled the objection and allowed Scott to testify concerning the content of the conversations.

Defendant argues on appeal that the introduction of certain testimony violated the hearsay rule and should not have come in. He specifically points to testimony by Scott that Tammy Duckworth told him her "uncle" would be her "source" and she would speak with her "uncle" about Scott's suggestion that he come to the mall lot with her to witness the transaction. He claims such evidence does not fall within the coconspirator exception to the hearsay rule because the ...

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