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08/29/89 the People of the State of v. Oscar Lopez

August 29, 1989





543 N.E.2d 997, 187 Ill. App. 3d 999, 135 Ill. Dec. 429 1989.IL.1328

Appeal from the Circuit Court of Cook County; the Hon. Richard E. Neville, Judge, presiding.


JUSTICE HARTMAN delivered the opinion of the court. BILANDIC, P.J., and DiVITO, J., concur.


Following a bench trial, defendant Oscar Lopez was found guilty of delivery of a controlled substance (Ill. Rev. Stat. 1985, ch. 56 1/2, par. 1401(a)(2)) and sentenced to 15 years' imprisonment. Defendant appeals and raises as issues whether: the State proved him guilty beyond a reasonable doubt and the circuit court improperly denied his motion for a new trial because of an alleged appearance of impropriety stemming from a former attorney-client relationship between defendant and the trial Judge.

The evidence established that Fred Kinnie, a paid informant, contacted Thomas Bourgeois, an agent of the Federal Bureau of Investigation , and told him defendant planned to sell "as much narcotics as he [could] prior to the end of the year," when he would flee the country. Kinnie claimed he had known defendant for several years and still owed him money from a previous cocaine purchase. Defendant, who worked in a hardware store, instructed Kinnie not to use the word "cocaine"; instead, he was to refer to ounces of cocaine as "inches" of "pipe."

At trial, Kinnie testified that on October 1, 1986, he met with Bourgeois and Agents Christopher Hacias and Van Quarles of the Drug Enforcement Agency , at which time he telephoned defendant. He indicated he needed "2 inches of pipe," and defendant told him "to come on." The price of the cocaine was $4,400.

Agent Quarles searched Kinnie at the DEA office, then drove him to a hardware store located at 2032 West 18th Street in Chicago, where defendant worked. Other surveillance officers followed in separate cars. Quarles parked approximately three-quarters of a block from the store, counted the $4,400 and handed it to Kinnie, who also counted the money before putting it in an envelope. Quarles then walked into the hardware store while Kinnie waited alone in the car; after a couple of minutes, Kinnie also entered the store.

Defendant, who was talking to a customer, motioned to Kinnie upon noticing him. A short time later, defendant led Kinnie into a room at the back of the store. Kinnie stood near the doorway of the room with his back towards the store and gave defendant the envelope containing the money. After pocketing the envelope defendant reached into a piece of pipe, pulled out a packet and handed it to Kinnie.

Kinnie put the packet in his pocket, exited the store and proceeded toward Quarles' car. Kinnie glanced over his shoulder and saw defendant standing outside watching him. The car doors were locked, so Kinnie crossed the street and continued walking for a half block. As he turned the corner onto Hoyne Avenue, Quarles drove up. Kinnie got into the car, gave the packet to Quarles and was returned to the DEA office, where he was once again searched.

On November 12, 1986, Kinnie and Agent Quarles revisited the hardware store, again for the purpose of purchasing cocaine from defendant. Defendant refused to deal with Agent Quarles, whom he thought was an informant because "he didn't look right."

Kinnie admitted on cross-examination that he made a statement to Agent Hacias on October 1, 1986, which indicated that the price of the cocaine was $1,800 per ounce. He claimed, however, that the price would be $2,200 because he owed defendant money. The statement further specified that Kinnie walked a few blocks after leaving the store before Quarles picked him up; Kinnie responded at trial that this was not correct. He also observed that the statement inaccurately reflected a prior conviction for burglary, then conceded it did not mention previous convictions for armed robbery, forgery and mail fraud. Kinnie acknowledged that the government paid him $500 for his participation in the instant case, and that he had been a paid informer in other investigations.

Special agent Christopher Hacias of the DEA next testified that he met with Bourgeois, Quarles, and Kinnie on October 1, 1986, to formulate a plan to purchase two ounces of cocaine from defendant. In accordance with the plan, Kinnie telephoned defendant at the hardware store and asked for "2 inches of pipe." The price of the cocaine was $4,400, part of which was for repayment of money that Kinnie owed defendant from prior narcotics purchases. The serial numbers on the money were recorded before it was given to Kinnie, but this cash was never recovered. Hacias observed Quarles conduct a pat-down search of Kinnie before leaving the DEA office for drugs, weapons or large amounts of cash, but nothing was found.

Quarles and Kinnie then drove to the store in one vehicle, Hacias and Bourgeois followed in a second, and Agents Johnson and Jones trailed in a third. Hacias parked about 1 1/2 blocks away from the hardware store. He observed Quarles enter, followed about one minute later by Kinnie. After five minutes elapsed, he saw Kinnie exit the store and walk west on 18th Street toward Quarles' car, pause briefly at the vehicle, and continue walking. Hacias also noticed defendant standing in front of the store. Hacias lost sight of Kinnie as he crossed 18th Street onto Hoyne Avenue.

Momentarily, Quarles left the store, went to his vehicle and drove away in Kinnie's direction. Shortly thereafter, Hacias received a radio transmission from Quarles, who reported he had procured a package containing two ...

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