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May 13, 1994



Petition for Leave to Appeal Denied October 6, 1994.

Gordon, Murray, McNULTY

The opinion of the court was delivered by: Gordon

JUSTICE GORDON delivered the opinion of the court:

Defendant was found guilty after a bench trial of delivery of a controlled substance. He was sentenced to 17 years' imprisonment to run consecutive to four and six-year sentences he received for other related delivery charges. On appeal, defendant alleges that (1) he was denied his right to a fair trial where the trial Judge acted as a fact finder in a separate simultaneous bench trial of a codefendant; (2) he was denied his right to confrontation when the trial court failed to order the State to produce a confidential informant; (3) the imposition of consecutive sentences was improper; and (4) the trial Judge improperly considered a factor inherent in the offense in sentencing him. For the reasons set forth below, we affirm the judgment of the trial court.


On June 21, 1989, defendant Charles Abston was arrested with codefendant Floyd Sample and charged with delivery of a controlled substance involving one kilogram of cocaine. Defendant Abston pled guilty to two related charges of delivery of a controlled substance. Both defendants waived their right to a jury trial on the charge involving the one kilogram of cocaine. Abston properly notified the State that he intended to present a defense of entrapment.

Immediately prior to trial, the following exchange took place:

"THE COURT: Is there any objection to defendants being tried together? Any reason why they shouldn't?

[ABSTON'S ATTORNEY]: I don't know any reason at this time your Honor.

THE COURT: Well, you better know because this is the time to know.


THE COURT: Is there any reason? If there is, you better state it now."

Abston's counsel did not respond and the court proceeded to try the two cases together.

Undercover agent John Backshis testified that at approximately 1:30 p.m. on March 13, 1989, he and an informant arrived at a parking lot where they were to meet defendant. He gave the informant $230 and instructed him to purchase an eighth of an ounce of cocaine from defendant. The informant entered defendant's vehicle, had a short conversation with defendant and then returned to Backshis' vehicle with two packets containing cocaine. Backshis could not see the exchange of money for cocaine from his vantage point.

Backshis stated that on March 17, 1989, he and the informantmet defendant at the latter's place of employment. Backshis asked defendant the cost of an eighth of an ounce of cocaine and subsequently paid him $230 for that amount. After the informant asked if defendant and Backshis could deal with each other directly, defendant gave Backshis his beeper number. According to Backshis, this was the last time he saw the informant.

On March 21, 1989, Backshis directly contacted defendant and purchased an ounce of cocaine from him. Approximately two months later on May 31, 1989, Backshis again directly contacted the defendant and subsequently purchased one ounce of cocaine for $1,000.

Backshis related that on June 20, 1989, he contacted defendant again, seeking to purchase a kilogram of cocaine. Defendant replied that a kilogram would cost $21,000. Backshis met with defendant and his supplier that night, but no transaction was ever consummated because contrary to the supplier's insistence, Backshis refused to turn over the money first and then wait for delivery of the cocaine. Backshis told defendant to call him if he could arrange another deal for the cocaine.

Backshis' testified that defendant contacted him the next day and told him that he had a kilogram of cocaine to sell for $21,000. Backshis and defendant met outside of defendant's place of employment. Defendant told Backshis that the kilogram of cocaine was in a car in the parking lot and that he wanted to consummate the deal on a side street adjacent to his place of employment.

Backshis said that defendant went back inside his place of employment and then reemerged with defendant Floyd Sample. Defendant nodded to Backshis, pointed to defendant Sample and then began to walk towards the end of the parking lot. Sample then entered the car which defendant had indicated contained the cocaine, removed a brown bag and handed it to Backshis. Backshis examined the package and, ...

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