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10/12/89 the People of the State of v. Gary Eichelberger

October 12, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

GARY EICHELBERGER, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

546 N.E.2d 274, 189 Ill. App. 3d 1020, 137 Ill. Dec. 520 1989.IL.1619

Appeal from the Circuit Court of Ford County; the Hon. W. Mark Dalton, Judge, presiding.

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE GREEN

On September 9, 1988, the circuit court of Ford County entered judgment on jury verdicts returned finding defendant Gary Eichelberger guilty of three counts of possession of 15 or more grams of cocaine. (Ill. Rev. Stat. 1987, ch. 56 1/2, par. 1402(a)(2).) The court subsequently sentenced him to a period of four years' probation and ordered him to pay a fine of $8,000.

Defendant now appeals, contending: (1) the State failed to prosecute him within the applicable statute of limitations; (2) the State failed to prove him guilty of the above offenses beyond a reasonable doubt; (3) the court erred in allowing a witness to testify concerning statements allegedly made by the defendant when such statements were not disclosed to defendant pursuant to Supreme Court Rule 412 (107 Ill. 2d R. 412); (4) the court erred in allowing a prosecution witness to testify concerning a prior consistent statement made by him; and (5) the court erred in failing to grant a mistrial due to improper arguments made by the State during closing and rebuttal arguments. We affirm.

Defendant was charged by information on January 29, 1988, in case No. 88-CF-2 with committing the following offenses: (1) three counts of unlawful possession of a controlled substance with intent to deliver; (Ill. Rev. Stat. 1987, ch. 56 1/2, par. 1401(a)(2)); (2) three counts of unlawful possession of a controlled substance; and (3) one count of unlawful calculated criminal drug conspiracy (Ill. Rev. Stat. 1987, ch. 56 1/2, par. 1405(a)). All crimes allegedly took place sometime "between February and the Spring of 1985." The State amended its information on May 20, 1988. The amended information was substantially similar to the original information except the State added additional defendants and a second count of unlawful calculated criminal drug conspiracy.

The evidence further revealed the State had also filed informations against defendant on December 9, 1986, and August 3, 1987, in case No. 86--CF--61. In each information, the State charged defendant with committing the offense of calculated criminal drug conspiracy. Finally, a grand jury returned an indictment on March 16, 1988, and an amended indictment on April 27, 1988, in case No. 88--CF--12, which charged defendant with committing the eight counts of drug-related offenses listed in the May 20, 1988, information.

Defendant initially contends the State failed in the instant case to commence its prosecution of the charges against him within the applicable three-year statute of limitations. (Ill. Rev. Stat. 1987, ch. 38, par. 3-5.) He notes the charges by the State stem from activity which allegedly occurred from February 1985 through spring of 1985, and the information upon which he was tried and ultimately convicted was not filed until May 20, 1988.

However, the period within which a prosecution must be commenced does not include any period in which a prosecution is pending against the defendant for the same conduct. (Ill. Rev. Stat. 1987, ch. 38, par. 3-7.) A comparison of the January 29, 1988, information with the amended information filed May 20, 1988, clearly reveals an identity of offenses for all charges except a second count of calculated criminal drug conspiracy, an offense for which defendant was not convicted. Furthermore, the second-amended information contains allegations that the period within which prosecution had to be commenced against defendant did not include those periods in which the above indictments and informations were in full force and effect because all charges stemmed from the same conduct. Testimony by the former State's Attorney at the trial in this cause substantially corroborated those allegations. The State properly commenced its prosecution of the defendant within the applicable three-year statute of limitations period.

In order to determine whether the evidence was strong enough to support the convictions, we must examine the evidence in some detail. Defendant was tried jointly with his two other codefendants, Ronald L. Norman and Maurice Eichelberger. The main witness for the prosecution at that trial was William Cofel, who testified that, in February 1985, he and defendant "had some Discussions" with regard to cocaine. He said defendant initially asked him if he wanted to go in with him in purchasing an ounce or two of cocaine. Cofel said they discussed the price, amount, and source of the cocaine. They decided Cofel would put up $3,000 for the drugs. They met again a few days later, and Cofel said defendant informed him he had "made the deal" and would be "getting the cocaine." Cofel then gave him the $3,000. Cofel said their goal was to purchase more cocaine after they sold the first quantity they received.

Cofel stated that, shortly thereafter, defendant came over to Cofel's home and brought the two ounces of cocaine with him. Cofel said he knew from past experience what cocaine looked like and the effects of that drug. However, they decided to "test out the drug" since they did not know what quality they had received. A friend came over, tried the drug with them and told them "it was pretty good stuff." Cofel explained they later took each ounce of cocaine, or approximately 28 grams, and added seven or eight "cuts" to it to make it go farther. They then packaged it up a gram at a time and placed it in brown, one-gram bottles. Cofel said they ended up with about 60 or 70 grams of cocaine. They left the majority of the drug in the basement, and Cofel, defendant and Ronald Norman took out a few bottles at a time to sell it. Cofel said each made approximately a $1,000 profit from the sale of the first supply of cocaine.

Cofel further testified that, in March 1985, he withdrew $6,000 from the bank and gave it to defendant to purchase more cocaine. He, defendant, and Ronald Norman then met, "cut" the cocaine, weighed it and bottled it up for sale. He estimated that, with this second "batch," they had a total of between seven and nine ounces to divide among them and sell.

Finally, Cofel testified that, during the latter part of March until the middle of June 1985, he and defendant worked together to make the third purchase of cocaine. He said all three contributed toward the purchase, and Cofel himself gave defendant between $2,500 and $3,500. Cofel said defendant purchased six ounces of cocaine, and he, defendant, defendant's brother Maurice Eichelberger, and Ronald Norman all met to prepare the cocaine for distribution. He said they sold this third batch of cocaine, which exceeded 30 grams, and delivered all of the money to Maurice Eichelberger.

Cofel said he used quite a bit of his share of the second and third batches of cocaine for his own personal use. He explained its usage made him "feel good" and caused his face, nose, and gums to become numb. He said he had experienced similar sensations when he had used cocaine in the past.

Judy Cofel, William Cofel's wife during the dates in question, also testified on behalf of the State. She said she remembered defendant came over to their home during February and March 1985, and he and her husband went down in their basement on those occasions. She said she saw the two men with a baggie of white powder and watched them snort the substance. She also discovered in her basement some small brown bottles in a paper bag, containers she had never seen before. She also became aware her husband was using cocaine between February and June 1985 because she learned he had been making large withdrawals from their bank account. She also said her husband discussed with her some disagreements he had been having with Maurice Eichelberger because he claimed Maurice was retaining too much of his money from the cocaine deals.

Maurice Eichelberger testified that, late in May or early in June 1985, his brother, the defendant, was quite depressed. He said his brother told him he had been "doing a lot of drugs over at Cofel's house," that he owed William Cofel a lot of money, and that Cofel had sold drugs. He recalled that both ...


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