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12/15/89 the People of the State of v. Nafez Totah Et Al.

December 15, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

NAFEZ TOTAH ET AL., DEFENDANTS-APPELLANTS



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

548 N.E.2d 678, 192 Ill. App. 3d 239, 139 Ill. Dec. 293 1989.IL.1959

Appeal from the Circuit Court of Cook County; the Hon. Michael E. Getty, Judge, presiding.

Rehearing Denied January 18, 1990.

APPELLATE Judges:

JUSTICE PINCHAM* delivered the opinion of the court. MURRAY, P.J., and COCCIA, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE PINCHAM

Defendants, Ahmad Shabeah and Nafez Totah, were each convicted of delivery of a controlled substance (Ill. Rev. Stat. 1985, ch. 56 1/2, par. 1401(b)(2)). They were sentenced to respective terms of 8 and 10 years' imprisonment and two years' mandatory supervised release. Defendants appeal, alleging that the trial court erred in failing to readmonish defendant Totah of his right to trial by a jury; that defendant Shabeah was denied his constitutional right to the effective assistant of counsel; that the State did not prove them guilty of delivery of a controlled substance beyond a reasonable doubt; and that the trial court abused its discretion in sentencing them to excessive terms of imprisonment. We affirm both judgments of conviction.

Defendant Shabeah's jury trial and defendant Totah's bench trial were held simultaneously. At the outset of the trials, counsel for defendant Shabeah requested a continuance on the grounds that an earlier scheduled legal interview conflicted with the trial and that his performance at trial could be affected by a painful spasm in his shoulder. The trial court denied counsel's request but agreed to begin jury selection after he had sought medical attention. Defendant Shabeah's counsel renewed his request for a continuance, arguing that his ability to perform during the trial could be affected by a medication, Tylenol, he had taken. The trial court again denied counsel's request but permitted him to request a recess at any time during the trial.

During the trial of defendants Shabeah and Totah, the witnesses testified that the following events occurred.

Officer Robert Slupski, a Chicago police officer, testified on behalf of the State. Officer Slupski testified that on April 24, 1986, and at 7 p.m., he went to the Speak Easy Lounge at West 63rd Street and California Avenue in Chicago, Illinois, to meet a confidential informant. At the lounge, the confidential informant introduced defendant Shabeah to Officer Slupski. Slupski inquired about purchasing an ounce of cocaine, and defendant Shabeah replied that there would be no problem obtaining the quantity requested but that it would cost Slupski $1,800. Slupski complained about the price but was assured that the cocaine was of high purity and could be "cut four times." Defendant Shabeah then went to a public telephone located five feet from Slupski and called his cocaine suppliers. The proximity of the public telephone to the table at which Officer Slupski sat allowed him to overhear defendant Shabeah's conversation. Slupski testified that defendant Shabeah spoke to defendant Totah on the telephone because he heard Shabeah mention defendant Totah's first name, Nafez, and that he also heard defendant Shabeah inform Totah that there was a person interested in purchasing an ounce of cocaine. After defendant Shabeah concluded his telephone conversation, Shabeah and Officer Slupski agreed to conclude the cocaine transaction at Bennigans Restaurant located at 95th and Ridge in Chicago, Illinois. The meeting at Bennigans Restaurant was scheduled for 9 p.m. on the same day.

Officer Slupski exited the Speak Easy Lounge with defendant Shabeah, and waited until Shabeah drove off in a 1979 Cadillac Eldorado. As soon as Shabeah left, Officer Slupski drove off and informed Agents Douvris, Guerra and Hogue about the potential purchase of an ounce of cocaine.

Two hours later, at 9 p.m., Officer Slupski, who was now wearing a hidden electronic warning device, drove and parked directly in front of Bennigans Restaurant. When Slupski got out of his car, he saw defendant Shabeah also exiting a car. They both exchanged greetings and entered Shabeah's car. Shortly thereafter, defendant Shabeah got out of his car and went into Bennigans to make a telephone call. Shabeah returned to his car five minutes later and informed Slupski that the cocaine suppliers would be arriving shortly.

Defendant Totah and defendant Bishawi, who is not a party to this appeal, arrived in a red Ford Thunderbird and parked alongside defendant Shabeah's car. Shabeah introduced Officer Slupski to defendants Totah and Bishawi, and Shabeah and Slupski entered Totah's car. Once inside Totah's car, Shabeah reminded Totah that Slupski was interested in purchasing cocaine and he could be trusted. While defendant Totah drove them to the rear of Bennigans, Slupski informed Totah that the money for purchasing the cocaine was in his car. Defendant Bishawi questioned why Officer Slupski left the money in his car, and Shabesh responded that the money was in fact in Slupski's car and they should not worry because "he's cool." Totah stopped the car and Bishawi instructed Totah to give Officer Slupski the cocaine. Defendant Totah reached under the front floor mat of the car and pulled out a plastic bag that contained a white powdery substance. Officer Slupski asked for the price of the cocaine and Totah replied that Shabeah had already set the price of the ounce of cocaine. Slupski next inquired about purchasing larger quantities of cocaine in the future, and defendant Bishawi replied that, "once we get to know you better, we can sell you an ounce for $1600 and a kilo of cocaine for $1400 an ounce." Defendant Totah drove back to the front of Bennigans to get the money from Officer Slupski's car. Once Officer Slupski exited defendant Totah's car, he activated the hidden electronic warning device.

Officers from the Chicago Ridge police department arrived immediately and arrested defendants Shabeah, Totah, and Bishawi. Officer Slupski searched Totah's red Ford Thunderbird and found another plastic bag that contained a white powdery substance. Albert Larsen, a chemist and forensic scientist at the Department of State Police, examined the contents in the two plastic bags and determined that the first bag contained 24.3 grams of cocaine, while the second bag contained three grams of cocaine.

Defendant Shabeah testified on his own behalf and gave a different version of the events that occurred on April 24, 1986. Defendant Shabeah testified that he had known the confidential informant for only five days prior to his arrest and that the informant left a message, requesting that they both meet at the Speak Easy Lounge on April 24, 1986. Defendant Shabeah further testified that once he got to the lounge, the informant introduced him to Officer Slupski. After the telephone conversation, Shabeah testified that he left the lounge and later met Slupski at Bennigans. Shabeah further testified that when defendants Totah and Bishawi arrived at Bennigans, they all entered Totah's car, and Slupski asked, "here's the stuff?" to which defendant Totah questioned whether Slupski was a police officer. Shabeah interrupted Totah and told him that Slupski was a nice guy and a friend. Defendant Shabeah testified that as soon as he stepped out of the car, he found himself on the ground with a gun pointed to his head.

Defendant Shabeah denied ever mentioning to Officer Slupski the word "cocaine" or the words "$1,800," "purity" or that the ounce of cocaine could be "cut four times." Defendant Shabeah concedes placing the telephone call to defendant Totah, but denies discussing cocaine, suppliers or the price of the cocaine with defendant Totah. Shabeah claims that he did not speak to Totah but placed the call and gave the telephone to the informant, who then spoke to Totah. Shabeah acknowledges going to Bennigans but argues that the informant asked him to go there. Shabeah further denied ever discussing or mentioning narcotics, the price of the narcotics, or ...


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