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11/27/89 the People of the State of v. Clarence Johnson

November 27, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

CLARENCE JOHNSON, DEFENDANT-APPELLANT



Before trial, the State filed an answer to a discovery motion and identified "Angel Luna" as a possible witness. The defendant filed a motion for pertinent information about Luna and to produce Luna at hearings on motions and at trial. The motion asked in the alternative for an order dismissing the charge with prejudice should the State refuse to produce Luna. No order expressly ruling on that motion appears of record. On June 17, 1986, at a hearing on the motion, the Judge asked for a response to the motion and for a hearing on the application of Roviaro v. United States (1957), 353 U.S. 53, 1 L. Ed. 2d 639, 77 S. Ct. 623. The Judge said he would like a hearing to determine whether or not there was "participation by the informant."

APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SIXTH DIVISION

548 N.E.2d 433, 191 Ill. App. 3d 940, 139 Ill. Dec. 48 1989.IL.1823

Appeal from the Circuit Court of Cook County; the Hon. Donald E. Joyce, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE EGAN delivered the opinion of the court. McNAMARA, J., and LaPORTA, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE EGAN

The defendant, Clarence Johnson, and Enrique Acosta were charged separately with unlawful delivery of less than 10 grams of cocaine. Their cases were consolidated and were tried together in a bench trial. Acosta was discharged at the close of the State's case. The defendant was convicted at the close of all the evidence and sentenced to 30 months' probation. On the State's motion the sentence was modified to three years' imprisonment to comport with the statutory sentencing guidelines for defendants who had previously been convicted of felonies. The only issue is whether the defendant was proved guilty beyond a reasonable doubt.

The State's principal witness was Theodore Rizo, a narcotics agent for the Illinois Department of State Police. He testified as follows:

At approximately 3 p.m. on August 10, 1984, he drove to the Contina Tavern at 1900 West Cullerton Street in Chicago, Illinois, where he planned to purchase some cocaine. He was wearing civilian clothes and drove an undercover vehicle. Angel Luna, an informant, was with him. Approximately 11 other agents were in the vicinity of the tavern maintaining surveillance.

Luna entered the tavern while Rizo remained in the car. After a few minutes Luna returned alone; they had a conversation; and Rizo sent Luna back into the tavern to tell Enrique Acosta that Rizo wanted to speak with him. Acosta came out and spoke to Rizo through an open window on the passenger side of a car. Acosta asked Rizo if he was ready to buy some cocaine; Rizo said that he was and that he preferred a delivery early that evening. Acosta left to make a phone call, returned a couple of minutes later and instructed Rizo to come back around 5:30 p.m. Rizo told Acosta that he would call at that time and left.

Rizo called Acosta at about 5:20 p.m. that same day and asked if "it was ready." Acosta said that it was not ready and asked Rizo to call back in 10 minutes. Rizo called back and had a conversation with a woman but not with Acosta. He called again at 6 p.m. and spoke with Acosta, asking if "it was ready." Acosta said it was and instructed Rizo to go to the tavern. When he returned to the tavern he was to purchase 1.5 kilograms of cocaine for $61,000 cash. However, he did not have the cash with him.

Rizo and Luna drove in separate cars to the tavern at 7:30 or 7:50 p.m. Rizo again instructed Luna to go into the tavern. Luna entered the tavern and returned alone a couple of minutes later. Rizo and Luna had a conversation, and Luna went back into the tavern. Luna returned to the car with Acosta and the defendant. Luna stood by the right headlight of the car, while Acosta and the defendant approached the open passenger window. Acosta leaned in the window and said to the defendant, "This is Ted [Rizo]"; the defendant then leaned in, shook Rizo's hand and said, "Hi, I am Clarence."

Although he had been to the tavern 7 to 10 times before this meeting, Rizo had never spoken with the defendant before, either in person or by telephone. He had spoken only with Luna and another individual who had acted as a "go-between" in the past.

Rizo asked the defendant if "it was ready." The defendant said, "I am sorry; it is not ready. I don't know where my man is at. He was supposed to be here at the tavern." Rizo said that he could not wait and was going to leave. The defendant again apologized for the delay and said, "This man is in Wisconsin and he is prompt." Rizo again said he was leaving; and the defendant said, "Well, if you can't ...


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