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06/27/89 the People of the State of v. Robert Tinoco

June 27, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

ROBERT TINOCO, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

541 N.E.2d 1198, 185 Ill. App. 3d 816, 133 Ill. Dec. 760 1989.IL.1003

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

APPELLATE Judges:

JUSTICE HARTMAN delivered the opinion of the court. SCARIANO and DiVITO, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HARTMAN

Defendant's appeal from his convictions for delivery of a controlled substance raises the issues of whether: (1) the State proved him guilty beyond a reasonable doubt; (2) exclusion of testimony of two defense reputation witnesses constitutes reversible error; (3) contradictions of record regarding the imposed fine warrants remandment for clarification; and (4) defendant's fine may be offset by time served in prison prior to sentencing.

Following a bench trial, the circuit court found defendant guilty of three counts of delivery of a controlled substance (Ill. Rev. Stat. 1987, ch. 56 1/2, par. 1401) upon the theory of accountability (Ill. Rev. Stat. 1987, ch. 38, par. 5-2(c)), imposed a fine of $3,000, and sentenced defendant to six years in custody of the Department of Corrections.

At trial, Drug Enforcement Administration agent Robert Fanter testified to three separate transactions involving defendant and codefendant Gil Cobian. *fn1

On August 28, 1984, Fanter telephoned Cobian at the Cedar Hotel in Chicago and asked for a meeting which took place at a McDonald's restaurant adjacent to the hotel. When Fanter told Cobian that he wanted to buy cocaine, Cobian replied that he would call Fanter after he had "talked to his source." Cobian called Fanter two days later and said his source was with him; he, Cobian, had an ounce of cocaine for sale; and Fanter should come immediately to the hotel. Following Cobian's instructions, Fanter and another DEA agent, Anthony Greco, went to the Cedar Hotel. Greco remained in their car as Fanter went into the hotel alone. In Cobian's room, Fanter saw Cobian and defendant, who Cobian referred to as "Joe." Cobian gave Fanter a clear plastic bag containing white powder, for which Fanter handed him $2,400 in prerecorded, DEA funds. Fanter told defendant that he would be interested in "doing some in the future." Defendant responded that "it would be possible to do larger amounts in the future."

When Fanter next contacted Cobian on September 10, 1984, by telephone and asked to purchase two ounces of cocaine later in the week, Cobian said he would "get a hold of his source and make arrangements for the delivery." Cobian did not identify his source by name. Fanter placed two more phone calls to Cobian on September 12, and twice that day went to the Cedar Hotel to meet Cobian. Greco again accompanied Fanter and again remained in the car. On his second visit, Fanter found both defendant and Cobian in the room. Cobian gave Fanter a clear plastic bag containing white powder. Fanter remarked that he hoped the quality of the cocaine would be better than before. Defendant said "it was better than the time before." Cobian took $2,400 in prerecorded, DEA bills from Fanter and handed it to defendant, who put it in his front trouser pocket. Defendant also stated that if Fanter purchased larger amounts in the future, "the price would go down."

Fanter placed another call to Cobian on September 18, 1984, arranged to meet him later that day at the same McDonald's restaurant and noted that he was interested "in doing larger amounts," anywhere from 10 ounces to a kilogram. Cobian responded that he'd have to speak to his source, referred to as "Joe." Fanter telephoned Cobian on September 26 and again on September 27; Cobian informed him the second day that his source had not yet arrived and that Fanter should call one hour later. When Fanter did so, Cobian said his source was with him and that Fanter should "come right over." Fanter drove with Greco to the hotel and, while Greco waited outside, proceeded alone inside the building.

In Cobian's room, Fanter again found Cobian and defendant. Cobian handed Fanter two clear plastic bags containing white powder. Defendant assured Fanter that the "two ounces were better than the one ounce [Fanter] purchased earlier." Fanter examined the cocaine under a light and handed $4,800 in prerecorded bills to Cobian, which he in turn gave to defendant. Defendant placed the bills in a trouser pocket. In response to Fanter's remark that he "wanted to do larger amounts," defendant stated that he "could deal more in the future, but he had to get to know [Fanter]." He also told Fanter the price of the narcotics would improve.

Fanter returned to his car and waited with Greco until defendant and Cobian emerged from the hotel. The agents followed the car in which defendant and Cobian drove away from the building; Fanter did not participate in their subsequent arrest.

Following defendants' arrests that day, Fanter spoke to Sergeant Killackey at the 11th and State police station in Chicago. Killackey told Fanter that defendant wished to speak to Fanter and Killackey alone. In Killackey's office, Fanter read defendant his constitutional rights, after which defendant said he received cocaine from an individual who owned or had owned an auto body shop at 22nd and Western and that he owed that individual $4,400 for the two ounces Fanter purchased earlier that day. If defendant could pay the $4,400, he ...


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