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06/09/89 the People of the State of v. William Brock Et Al.

June 9, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

WILLIAM BROCK ET AL., DEFENDANTS-APPELLANTS



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

540 N.E.2d 554, 184 Ill. App. 3d 595, 132 Ill. Dec. 814 1989.IL.875

Appeal from the Circuit Court of Cook County; the Hon. Fred G. Suria, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE MURRAY delivered the opinion of the court. LORENZ and PINCHAM, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MURRAY

Defendant William Brock appeals from his conviction, after a bench trial, of one count of delivery of a controlled substance. Defendant, along with co-defendant Michael Huminsky and other codefendants, was indicted on one count of calculated criminal drug conspiracy and one count of delivery of a controlled substance arising from events occurring on April 17, 1984 (indictment No. 84 -- 7334). Defendant, along with Huminsky, was also charged with the same two offenses arising from occurrences on April 20, 1984, in a separate indictment (No. 84 -- 7332). Both Brock and Huminsky filed a notice of appeal which this court subsequently severed. This opinion therefore concerns only defendant Brock's appeal.

The following facts are relevant to this appeal. Prior to trial, the State moved to consolidate cases Nos. 84 -- 7332 and 84 -- 7334. Defendant's counsel agreed but informed the court that the cases involved several factual situations which should be kept separate, to which the court asserted that it would have no problem keeping the cases separate. The motion to consolidate was granted at the end of the bench trial.

Testimony was heard from Illinois State Police Special Agents Daniel Callahan and Osborn Curtis. There were no defense witnesses. Agent Callahan testified that, on April 17 while working undercover in a resale shop, he received a telephone call from co-defendant Mike Wilson asking if he wanted to purchase 1 1/2 ounces of cocaine for $3,100. Defense counsel objected to Callahan relaying the content of conversations with the other codefendants. The court ruled that it would allow the conversations to establish a conspiracy; if no conspiracy was proved, the testimony would be stricken. Callahan then testified that he, Agent Curtis, and Wilson drove to Michael Huminsky's apartment in Rolling Meadows. In the car, Wilson told the agents that Mike Huminsky would take them to "Judo."

While Agent Curtis remained in the car, Wilson and Agent Callahan entered the apartment and saw Mike Huminsky, his brother Bill Huminsky, and an unidentified woman. Callahan identified the two brothers at trial after being confused initially because they had both changed their hair styles since their arrests. Agent Curtis also identified the Huminsky brothers at trial. Mike Huminsky made a phone call and then informed the others that "Judo" had said the cocaine was not yet ready. Mike Huminsky then demanded to see the money and all three co-defendants accompanied Callahan to the car and were shown the money.

Wilson and the agents then went for something to eat, returning to the apartment an hour later. The agents, accompanied by the Huminskys and Wilson, then went to another apartment in Palatine. Wilson and the Huminsky brothers entered the apartment building while the agents remained in the car. Subsequently, Mike Huminsky returned to the car and gave a bag of white powder, later identified as cocaine, to Callahan in exchange for $3,100.

Three days later, on April 20, Mike Huminsky offered to arrange another sale of 1 1/2 ounces of cocaine to Callahan. Approximately the same sequence of events occurred during the second buy, with Callahan and Curtis first going to the Rolling Meadows apartment where Mike Huminsky made a phone call and told Callahan that Judo had said the cocaine was not yet ready. Later, the two agents, accompanied only by Mike Huminsky, went to the same Palatine apartment building they had driven to on April 17. Once there, Curtis stayed in the car while Callahan and Mike Huminsky entered the building and rang a doorbell with the name "Bertagnoli" on it. They were met in the apartment by a man introduced as Judo, whom Callahan identified in court as defendant Brock. Judo, who was armed, searched Callahan and then gave the agent a bag of white powder, later identified as cocaine, in exchange for $3,100. After the transaction, Judo identified himself as William Brock and gave Callahan a business card with that name on it. The agent also observed a scale with white powder on it in the apartment. Later, Callahan marked this second bag of powder with the name of "James Bertagnoli alias Judo."

The trial court denied defendant's motion for a directed verdict, which was based on the ground that the cocaine was received from Bertagnoli, not defendant. The court also concluded that the State had established a conspiracy and allowed the codefendants' statements to stand. After noting that there was no doubt that Michael Huminsky was guilty of all counts of conspiracy and delivery on both dates (although the conspiracy charges could not be sustained since the court found no other co-defendants guilty of conspiracy), the court found that the State had failed to prove its case as to defendant Brock except for delivery of a controlled substance on April 20 (case No. 84 -- 7332). Defendant was sentenced to a mandatory term of six years.

On appeal, defendant Brock contends that (1) the trial court erred by consolidating the two indictments against all codefendants, thus considering all of the "other crimes" evidence against defendant; (2) defendant's guilty verdict must be reversed because it was based on inadmissible hearsay (codefendants' statements); and (3) the State failed to prove its case beyond a reasonable doubt. We affirm defendant's delivery conviction for the following reasons.

First, we note that the record contains no post-trial motions by defendant Brock. Both an objection at trial and a written post-trial motion are required to preserve an issue for review; thus, absence of a written motion waives that issue on appeal. (People v. Enoch (1988), 122 Ill. 2d 176.) ...


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