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March 30, 1994


Appeal from the Circuit Court of Cook County. Honorable John J. Mannion, Judge Presiding.

Petition for Leave to Appeal Denied December 6, 1994.

Tully, Rizzi, Cerda

The opinion of the court was delivered by: Tully

PRESIDING JUSTICE TULLY delivered the opinion of the court:

Following a jury trial, defendant Jerome Taylor was convicted of delivery of a controlled substance and sentenced to 30 years' imprisonment. On appeal, defendant raises the following issues: (1) the statements of co-conspirators were improperly admitted into evidence, where the State failed to prove a prima facie case of a conspiracy; (2) the court improperly restricted argument that defendant was not the individual who delivered the cocaine; (3) defendant was unduly prejudiced by the inflammatory remarks of the prosecutionduring closing argument; (4) the trial court failed to inquire into defendant's post-trial claim of ineffective assistance of counsel; and (5) the court sentenced equally culpable offenders to disparate sentences.

On September 1, 1989, Chicago police officer, Roosevelt Davis, arranged to purchase a kilogram of cocaine from Brian "Bo" Collins. Collins informed Davis that his source had agreed to the offering price of $20,000 and told Davis to meet him at 1:30 p.m. at 441 West 102nd Street. An agent from the Drug Enforcement Administration (DEA), Patrick Collins, agreed to assist with the money. While Davis drove to a gas station parking lot at 103rd and Halsted streets, a team of agents spread out in the vicinity. Davis and Bo Collins then drove to a house where Bo Collins promised Davis that the cocaine would be delivered if the money was available. Davis informed him that a friend was waiting with the money at a gas station.

At the gas station Bo Collins got into a car with Davis and Agent Collins. Bo then counted the money and said the cocaine would be enroute as soon as he contacted his "source." Around 4 p.m. Davis telephoned Bo Collins who was very excited and said the cocaine was available and he would meet them at the station. Bo Collins then pointed toward a man in the alley and said: "There's the man * * * There he is." Davis identified this person as Albert Lattimore.

Bo Collins agreed to show Davis the cocaine and they walked eastward down the alley. At Emerald Street, Davis saw Lattimore with defendant Taylor. Lattimore pointed to a car and said it was the police, suggesting they go inside a house to do the deal. Taylor then said, "F/--- it, I'll do it" and he advised Davis to meet him at the end of the alley. Davis then returned to agent Collins' car and they drove to the end of the alley. As they waited, they both saw defendant Taylor running toward them carrying what looked like a package beneath his shirt. When Davis exited the vehicle, Taylor threw the package on the front seat of the car and asked for the money. At this point, Davis arrested Taylor. Agent Patrick Collins testified and corroborated all of the foregoing statements of Davis.

Special Agent Andrew Banks of the DEA testified that on September 1, 1989, he was surveilling the vicinity when he saw a blue Buick drop off Bo Collins near Emerald Street, who then walked to the gas station where he was to meet Davis and Officer Collins. The Buick later returned with a passenger and pulled up behind Bank's car. While Lattimore exited the vehicle to walk to the gas station, defendant Taylor left the car, carrying a package under his shirt. The parties later stipulated that People's Group Exhibit 1-A and 1-B were cocaine and cocaine packaging.

Ronald Wagenhofer testified as a senior forensic chemist for the DEA lab in Chicago. After several tests, he concluded that cocaine, about 78 percent pure grade, was present in the samples tested.

Chicago Police Officer Steve Worsham testified for the defense that on September 1, 1989, he saw defendant being arrested by the Illinois State Police. After a short foot chase, Lattimore and Taylor were arrested. His report indicated that Brian "Bo" Collins escaped that day. Worsham arrested Lattimore and he later saw defendant in the custody of Officer Davis and Agent Collins.

The first issue on appeal concerns the statements of Bo Collins and Lattimore to Officer Davis and Agent Collins. Defendant contends that the testimony regarding these statements was inadmissible hearsay, violative of his Sixth Amendment right to confrontation. However, the Constitutional right to confrontation does not prevent the introduction of all hearsay evidence. ( Dutton v. Evans (1970), 400 U.S. 74, 27 L. Ed. 2d 213, 91 S. Ct. 210, 215.) In fact, the hearsay rule does not prevent a witness from testifying as to what he has heard. As stated in Dutton:

"From the point of view of the Confrontation Clause, a witness under oath, subject to cross-examination, and whose demeanor can be observed by the trier of fact, is a reliable informant not only as to what he has seen but also as to what he has heard."

The court in Dutton further explained that the so-called "coconspirator hearsay exception" --which allows evidence of an out-of-court statement of one conspirator to be admitted against his fellow conspirators--applies only if the statement was made in the course of and in furtherance of the conspiracy, and not during a subsequent period when the conspirators were engaged in nothing more than concealment of the criminal enterprise. See also, Lutwak v. United States (1953), 34 ...

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