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May 6, 1994


Appeal from the Circuit Court of Du Page County. No. 91-CF-1463. Honorable Thomas E. Callum, Judge, Presiding.

Released for Publication June 8, 1994.

Bowman, Doyle, Colwell

The opinion of the court was delivered by: Bowman

JUSTICE BOWMAN delivered the opinion of the court:

A jury convicted defendant, Harry Testa, of unlawful delivery of a controlled substance (Ill. Rev. Stat. 1989, ch. 56 1/2, par. 1401(a)(2) (now 720 ILCS 570/401(a)(2) (West 1992))). The court sentenced him to eight years in prison and imposed a $1,400 street value fine. On appeal, defendant asserts the trial court erred in (1) admitting hearsay testimony, (2) allowing a jury instruction on accountability, and (3) denying his motion for a mistrial based upon improper closing argument by the prosecutor.

Police Officer Wendy Marrello was assigned to the organized crime division, narcotics section, of the Chicago police department. Working in an undercover capacity, Marrello had a telephone conversation with Dawn Wheeler on March 14, 1991, in which Marrello indicated that she wanted to buy an ounce of cocaine. According to Marrello, Wheeler told her that "Harry could get me [Marrello] the ounce that I needed, that I had to come out to her motel room and we would do the deal there."

Later that day Marrello drove with Sergeant Isaac and Officer Blanca Fernandez to a motel in Lombard. Isaac stayed in the car while Marrello and Fernandez went to one of the rooms and knocked on the door. Defendant answered the door, and Marrello asked for Dawn. Defendant told the women to come in, and explained that Dawn was in the bathroom. The officers sat on the bed to wait. When Dawn came out of the bathroom, Fernandez went in and shut the door. She could not hear anything that was said in the bedroom. Marrello testified that the defendant then stood up from the chair he was sitting in, reached up to the top of the drapes, took down a clear plastic bag which contained a white rocky powder, and handed the bag to her. She handed the defendant $1,400, and he put the money in his shirt pocket. Fernandez came out of the bathroom and she, Marrello, and Dawn left the motel. The plastic bag the defendant handed to Officer Marrello contained cocaine.

On cross-examination Officer Marrello testified that she knew Dawn Wheeler used and sold drugs and had been arrested for prostitution and possession of hypodermic needles. Wheeler had told her that she would perform sexual acts for Harry, and he would give her cocaine. Marrello affirmed that she had not spoken to Harry about getting cocaine before the day in the motel room. Nor did she and Fernandez discuss cocaine with him as the three of them sat in the motel room on March 14, waiting for Wheeler to get out of the bathroom.

Defendant testified he knew Wheeler used drugs but denied he had ever given her drugs for anything. He said he tried to get her off drugs, had been to her motel room three or four different times, and had given her money for rent and food many times.

Defendant's testimony regarding the incident in the motel room on March 14 differed dramatically from that of Officer Marrello. When Wheeler came out of the bathroom, "the other girl," meaning Officer Fernandez, went into the bathroom. According to defendant, "Dawn told me, she says, Harry, will you get the package that's up on the curtain there. And I stood up and there was a package of cocaine. And she said give it to Wendy." Defendant threw the package on the table and made several angry and derogatory remarks to the two women about being involved with drugs. Wendy got up, picked up the package, took some money out of her pocket or purse, and set it on the table. Defendant denied the cocaine was his and said that no one ever handed him any money, and he did not pick up the money. Fernandez came out of the bathroom, and defendant gathered up his clothing and went into the bathroom to finish dressing. When he came out, all three women were gone. On cross-examination defendant admitted that, having seen the drug as a police officer, he knew the package he removed from the curtain contained cocaine. He also knew that Wheeler used drugs regularly.

Defendant first challenges the trial court's admission of the hearsay conversation between Officer Marrello and Dawn Wheeler in which Wheeler told the officer that Harry could get the ounce of cocaine she needed. The State maintains that the conversation was properly admitted because it fell within the coconspirator exception to the hearsay rule. Under this exception, hearsay statements are admissible against a defendant upon an independent, prima facie evidentiary showing of a conspiracy or joint venture between the hearsay declarant and the defendant, if the statements were made during the course and in furtherance of the conspiracy. ( People v. Goodman 1980, 81 Ill. 2d 278, 283, 41 Ill. Dec. 793, 408 N.E.2d 215; People v. Duckworth (1989), 180 Ill. App. 3d 792, 795, 129 Ill. Dec. 629, 536 N.E.2d 469; People v. Deatherage (1984), 122 Ill. App. 3d 620, 623, 78 Ill. Dec. 47, 461 N.E.2d 631.) Defendant submits that the State did not produce sufficient independent evidence, i.e., evidence separate and apart from the hearsay statements themselves, to make the requisite prima facie showing of a conspiracy between himself and Dawn Wheeler to deliver cocaine, and the coconspirator exception, therefore, does not apply.

To establish a prima facie case of conspiracy, the State must prove that two or more persons intended to commit a crime, that they engaged in a common plan to accomplish the criminal goal, and that an act or acts were done by one or more of them in furtherance of the conspiracy. ( People v. Roppo (1992), 234 Ill. App. 3d 116, 123, 174 Ill. Dec. 890, 599 N.E.2d 974; People v. Melgoza (1992), 231 Ill. App. 3d 510, 521, 172 Ill. Dec. 591, 595 N.E.2d 1261.) Mere knowledge of or acquiescence in an illegal act neither constitutes conspiracy nor suffices to give rise to an inference of conspiracy. ( People v. LeShoure (1985), 139 Ill. App. 3d 356, 363; Deatherage, 122 Ill. App. 3d at 623-24.) According to defendant, the State's independent evidence showed only that he delivered cocaine directly to Officer Marrello and that Wheeler was merely present and acquiesced in the crime. He insists that, absent Dawn Wheeler's statement to Marrello, the evidence did not show any agreement between himself and Wheeler to deliver cocaine.

The existence of an agreement between coconspirators to do a criminal act may be inferred from all of the surrounding facts and circumstances, including the acts and declarations of the accused. ( Melgoza, 231 Ill. App. 3d at 521; People v. Soteras (1987), 153 Ill. App. 3d 449, 453, 106 Ill. Dec. 343, 505 N.E.2d 1134.) Because of the clandestine nature of conspiracy, and the difficulty of establishing conspiratorial intent and agreement by direct evidence, the courts have permitted broad inferences to be drawn from the circumstances, acts, and conduct of the parties. ( Melgoza, 231 Ill. App. 3d at 523; People v. Mordick (1981), 94 Ill. App. 3d 497, 500, 50 Ill. Dec. 63, 418 N.E.2d 1057.) In this case there is no direct evidence of an agreement between defendant and Wheeler to commit a crime. Consequently, it is our task to determine if there was sufficient circumstantial evidence from which such an agreement could be inferred.

The State's evidence, apart from the hearsay conversation between Officer Marrello and Dawn Wheeler, showed the following facts and circumstances. Officer Marrello communicated her wish to buy cocaine to Wheeler. At Wheeler's direction, Marrello and Fernandez went to Wheeler's motel room to make the purchase. However, Wheeler was not alone in her room at the time of the drug sale. Defendant was there before the police officers arrived and, in fact, opened the door for them. He had been in Wheeler's motel room on three or four previous occasions, and he knew that Wheeler used drugs regularly. Defendant did nothing while Wheeler was in the bathroom. It was only after she came back into the bedroom, and Fernandez was out of earshot in the bathroom, that defendant retrieved the package of cocaine and handed it to Marrello. He then accepted the $1,400 Marrello ...

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