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February 4, 1994


Appeal from the Circuit Court of Du Page County. No. 90-CF-615. Honorable Edward W. Kowal, Judge, Presiding.

Petition for Leave to Appeal Denied June 2, 1994.

Doyle, McLAREN, Geiger

The opinion of the court was delivered by: Doyle

JUSTICE DOYLE delivered the opinion of the court:

Following a jury trial in the circuit court of Du Page County, defendant, Darrell Humphries, was convicted of unlawful possession of 900 grams or more of a controlled substance containing cocaine with intent to deliver (Ill. Rev. Stat. 1989, ch. 56 1/2, par. 1401(a)(2)(D) (now 720 ILCS 570/401(a)(2)(D) (West 1992))) and sentenced to a term of 15 years' imprisonment. Defendant filed a timely appeal from his conviction and sentence, raising the following issues: (1) whether he was denied his right to the effective assistance of counsel; (2) whether the trial court erred in refusing to suppress statements made by defendant; and (3) whether defendant was lawfully sentenced under the Super Class X felony provisions.

This case involves a reverse buy" undercover operation. In March 1990, S.M., an admitted drug dealer, was cooperating with the Du Page Metropolitan Enforcement Group (DuMEG) in hope of receiving a favorable Disposition on controlled substance delivery charges pending against him. S.M. received a call from Thomas Conneely, to whom S.M. had sold drugs in the past. When Conneely inquired about purchasing more drugs, S.M. told Conneely that he was out of the business. S.M. gave Conneely a pager number belonging to DuMEG agent Larry Wiess and told Conneely that the guy at that number could sell him a kilogram of cocaine. Conneely subsequently contacted Wiess for the purpose of obtaining drugs. Wiess testified that Conneely asked him if he could deal kilograms of cocaine.

On March 9, 1990, defendant and Conneely met with Wiess at a restaurant in Villa Park. Acting in an undercover capacity, Wiess represented himself to be a drug dealer named "Tony." Defendant asked Wiess how much a kilogram of cocaine would cost and Wiess quoted him a price of $18,000. Defendant said that he had the money with him and wanted to obtain the drugs that night, but Wiess responded that he could not get the drugs immediately. According to Wiess, defendant left, placed a phone call, and returned to inform Wiess that he had just purchased nine ounces of cocaine from another source. Defendant told Wiess to contact Conneely if he was able to get a kilogram of cocaine.

Two days later, Wiess called Conneely and told him that he had the cocaine. According to Wiess, Conneely said he would contact defendant and get back to Wiess. That evening Wiess received a page, and, when he called the number, defendant answered. Defendant subsequently arranged to purchase the cocaine from Wiess the next morning, indicating that he would be bringing another person along who Wiess had not yet met. Wiess testified that defendant had asked him to represent the cost of the kilogram as $20,000 so he could make an extra $2,000 off the third party.

The following day, Wiess met with defendant and Keith Moody in the parking lot of a Villa Park supermarket. After a brief conversation, defendant got into the front passenger seat of Wiess' car and Moody got in the backseat. Wiess handed Moody a package of cocaine and defendant handed Wiess a paper bag which contained $18,000. Shortly thereafter Wiess activated an arrest signal and both defendant and Moody were taken into custody by members of a DuMEG surveillance team.

Defendant was transported to the Oakbrook Terrace police station where he was advised of his rights and interviewed by Officers Raymond McGury and Barbara Durnil and Assistant State's Attorney Brian Ruxton. Defendant told them that he and Conneely had met Wiess at the restaurant on March 9. They had been prepared to buy a kilogram of cocaine right then and had the $18,000 on them, but Wiess did not have the cocaine. Defendant stated that he then met Wiess on March 12 in the supermarket parking lot. Defendant was accompanied by Moody, who had provided $10,000 of the money and was to get one-half kilogram of the cocaine. Defendant stated that he had been given the other $8,000 from an individual whom he knew only as "John." Defendant stated that he owed John $2,000 from a previous cocaine debt, and John had agreed to forgive it if he obtained the one-half kilogram of cocaine for him.

Prior to trial, defendant filed a motion to suppress his statement. Defendant testified in support of this motion that although he had been advised of his rights and understood them, he had never waived his rights either explicitly or implicitly.

McGury testified that he read defendant his rights off a preprinted form and asked defendant after each right whether he understood it. In each case defendant acknowledged that he had understood the advisement. McGury then gave defendant a copy of that form and advised him to read each of the rights himself and place his initials after them if he understood that right. Defendant also read and initialed a provision under the "Waiver" section of the form which asked "Do you understand each of these rights I have explained to you?" Defendant subsequently signed at the bottom of the form, and both McGury and Durnil signed as witnesses. McGury acknowledged that he did not read, or have initialed, the provision under the "Waiver" section of the form which asked "Having these rights in mind, do you wish to talk to me/us?" McGury testified, however, that defendant "verbally" agreed to talk to him after having been advised of his rights:

"Q. [Defense attorney]: So you never asked him: Having these rights in mind, do you wish to talk to me? Is that right?

A. No, not off of that form; that's correct.

Q. Well, not only not off the form, but you never gave it to him ...

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