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06/30/89 the People of the State of v. Joe Callaway

June 30, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

JOE CALLAWAY, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

540 N.E.2d 1153, 185 Ill. App. 3d 136, 133 Ill. Dec. 287 1989.IL.1072

Appeal from the Circuit Court of Adams County; the Hon. Edward B. Dittmeyer, Judge, presiding.

APPELLATE Judges:

JUSTICE LUND delivered the opinion of the court. McCULLOUGH, P.J., and GREEN, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LUND

Following a jury trial, defendant was convicted of nine counts of narcotics-related offenses. Seven counts involved the unlawful delivery of small amounts of cocaine. Because defendant's illegal activities overlapped a change in the statute pertaining to unlawful delivery of cocaine, five counts were in violation of section 401(c) of the Illinois Controlled Substances Act (Ill. Rev. Stat., 1986 Supp., ch. 56 1/2, par. 1401(c)) (Class 2 felony), and two counts were in violation of section 401(b)(2) of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1987, ch. 56 1/2, par. 1401(b)(2)) (Class 1 felony). Defendant was also convicted of one count of unlawful delivery of cannabis, in violation of section 5(d) of the Cannabis Control Act (Ill. Rev. Stat. 1987, ch. 56 1/2, par. 705(d)) (Class 3 felony), and one count of narcotics racketeering, in violation of section 4(a) of the Narcotics Profit Forfeiture Act (Ill. Rev. Stat. 1987, ch. 56 1/2, pars. 1654(a), 1655(a)) (Class 1 felony). The circuit court of Adams County sentenced defendant to the following concurrent terms of imprisonment: (a) four years for the Class 3 felony; (b) five years for the Class 2 felonies; and (c) eight years for the Class 1 felonies. In addition, defendant was ordered to pay fines. Defendant appeals his convictions and sentences.

On appeal, defendant raises the following allegations of error: (1) the court erred in allowing the State to adduce and argue that the drug dealers defendant supplied with drugs pleaded guilty or were convicted by a jury of the same offenses for which defendant was now on trial; (2) the court should have vacated the eight convictions for unlawful delivery of cocaine and cannabis because these predicate convictions for unlawful delivery of narcotics are included offenses of narcotics racketeering; (3) the trial court abused its discretion in denying defendant's motion for severance of the charges; and (4) the prosecutor committed error during his open statement and closing argument. The pertinent facts follow.

The State charged defendant with operating a scheme whereby he profited from the sale of illegal drugs, and from acting as an informant for law enforcement authorities concerning the same drug sales. In so doing, defendant allegedly deceived friends of his into selling narcotics for him, and deceived undercover law officers into believing the friends were notorious drug dealers. The scheme was not discovered until defendant had fled to Texas.

The scheme took the following pattern. Defendant would ask a friend to sell drugs to a third person, usually described by defendant as his cousin from out of town. Each testified defendant told him he did not want his cousin to know he was a dealer. Defendant supplied the drugs and returned after the sale to collect the money, between $100 and $300 per transaction. In the meantime, defendant had made arrangements with local narcotics investigators to act as an informant concerning illegal drug sales. The individual purporting to be defendant's cousin was, in fact, an undercover law officer. For each drug transaction arranged by defendant, he would receive a fee from the government of $35 to $50, depending on the type of drug involved. The incidents in question took place during the months of January and February 1987. Five of defendant's friends were later arrested and pleaded guilty, or were convicted by a jury of selling illegal narcotics.

Defendant was eventually arrested and indicted for his participation in these same drug transactions. Following trial, defendant was convicted of eight counts of unlawful delivery of narcotics and one count of narcotics racketeering.

Defendant first argues the State improperly introduced evidence that the principal witnesses, the friends of defendant set up to be drug dealers, pleaded guilty or were convicted of the same offenses for which defendant was on trial. Further, defendant contends the State's Attorney referred to this evidence as a reason for finding defendant guilty in closing argument. The State responds by arguing the circumstances of this case are unique and do not fit under the normal prohibition against evidence of a codefendant's conviction.

In total, five of defendant's friends testified that defendant set them up as drug dealers. The jury acquitted defendant of the charges pertaining to one of the individuals, and his testimony will not be discussed. The direct examination of three of the remaining four witnesses was conducted in similar fashion. The pertinent testimony of Kimberly West Page is reproduced as an example:

"Q. Okay. Do you have some felony convictions?

A. Yes.

Q. And can you tell the ladies and gentlemen what those are?

A. Two counts of controlled substance.

Q. Okay, and is that controlled substance cocaine?

A. Yes.

Q. Do you know the person who gave you the drugs that you were convicted for?

A. Yes.

Q. And who was that person?

A. Joe Callaway.

Q. Is he here in the courtroom?

A. Yes.

Q. Would you point him out for us, please.

Q. The two convictions that you have for selling drugs, did the first one occur on or ...


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