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05/31/95 PEOPLE STATE ILLINOIS v. KRZYSZTOF S.

May 31, 1995

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
KRZYSZTOF S. WATYCHA, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Du Page County. No. 92-CF-2502. Honorable Peter J. Dockery, Judge, Presiding.

Released for Publication July 11, 1995.

The Honorable Justice Bowman delivered the opinion of the court: Rathje and Hutchinson, JJ., concur.

The opinion of the court was delivered by: Bowman

JUSTICE BOWMAN delivered the opinion of the court:

Defendant, Krzysztof Watycha, was charged in a four-count indictment with unlawful delivery of more than 200 but less than 600 objects containing LSD (Ill. Rev. Stat. 1991 ch. 56 1/2, par. 1401(a)(7)(B) (now 720 ILCS 570/401(a)(7)(B) (West 1992))), unlawful delivery of more than 15 but less than 100 grams of a substance containing cocaine (Ill. Rev. Stat. 1991, ch. 56 1/2, par. 1401(a)(2)(A) (now 720 ILCS 570/401(a)(2)(A) (West 1992))), unlawful delivery of fewer than 15 objects containing LSD (Ill. Rev. Stat. 1991, ch. 56 1/2, par. 1401(d) (now 720 ILCS 570/401(d) (West 1992))), and unlawful delivery of 1 gram or more but less than 15 grams of a substance containing cocaine (Ill. Rev. Stat. 1991, ch. 56 1/2, par. 1401(c)(2) (now 720 ILCS 570/401(c)(2) (West 1992))). The deliveries alleged in counts I and II took place on November 3, 1992; the deliveries alleged in counts III and IV occurred on October 28, 1992. A jury found defendant guilty on counts I and II but not guilty on counts III and IV and defendant was sentenced to nine years' imprisonment in the Department of Corrections. Following the denial of his post-trial motion, defendant filed this timely appeal.

The evidence presented at trial revealed the following facts. On April 4, 1991, Michael Maruszak (Maruszak) was charged with selling cocaine to Agent John Bright of the Du Page Metropolitan Enforcement Group (DuMEG) on two occasions, February 6, 1991, and February 13, 1991. Both were Class X felonies. In return for a bond reduction that permitted him to obtain his release from the Du Page County jail, Maruszak agreed to cooperate with DuMEG by working as an informant. Under the agreement, DuMEG and the State's Attorney's office would attempt to get "consideration" for Maruszak when he was sentenced on the two Class X charges in exchange for his guilty plea and information leading to the arrest of at least one individual.

According to Maruszak's trial testimony, he entered into this agreement merely to secure his release on bond from the Du Page County jail and had no intention of assisting DuMEG. Rather, Maruszak testified, he was desperate to avoid the penitentiary and was attempting to delay his sentencing for as long as possible. Maruszak testified that following his release on bond, he "played games" with Agent Bright by giving him bits of information that resulted in no arrests.

In January 1992, Maruszak entered the first of several blind guilty pleas on the two Class X charges pending against him. Over the next several months, he succeeded in withdrawing his guilty plea on several occasions, avoiding sentencing each time. Maruszak testified that each plea and subsequent withdrawal was part of a continuing attempt to delay disposition of his case. By the fall of 1992, Maruszak realized that, although he had successfully avoided being sentenced for months, he would likely receive a lengthy prison term when his sentencing occurred unless he could produce information leading to an arrest. Accordingly, he resolved to introduce defendant to Agent Bright.

Maruszak testified that he first met defendant at Lewis University late in the summer of 1991. Defendant was a student at Lewis, majoring in mathematics and physics, and was due to graduate in December 1992. Although Maruszak was not a student, he visited the Lewis campus frequently and had a number of friends who were students there. Maruszak stated that he began to become friends with defendant in August 1992, about a year after their first meeting. Between August and October 1992, Maruszak and defendant became quite close. They spoke on the phone nearly every day and Maruszak often visited defendant on campus.

According to Maruszak, defendant was interested in selling drugs when they first met. Although Maruszak admitted that he had never seen defendant selling drugs, he testified that defendant had a reputation on campus as a drug dealer. Maruszak testified that at some point in the fall of 1992 he realized that defendant would be the perfect person to use to fulfill his bargain with the State's Attorney. He decided to introduce defendant to Agent Bright, hoping that a drug transaction would occur, leading to defendant's arrest and fulfillment of the plea agreement.

Defendant, on the other hand, testified that he never had any interest in selling drugs and that he only agreed to consider it in response to Maruszak's repeated urging. Defendant, who emigrated from Poland at the age of 14, stated that he befriended Maruszak because they had a bond stemming from their shared Polish heritage. Defendant admitted that he became aware that Maruszak sold drugs shortly after they met. However, defendant stated that he told Maruszak he wanted nothing to do with the drug business and that, at first, Maruszak respected defendant's position.

Defendant testified, however, that after he mentioned to Maruszak that one of his co-workers sold drugs, Maruszak began to encourage defendant to sell drugs as well. At some point, defendant told Maruszak that he was having trouble paying his tuition, that his mother was working two jobs to help him, and that he was having financial problems. According to defendant, after learning of defendant's financial problems, Maruszak took a keen interest in convincing him to sell drugs. Eventually, Maruszak arranged a meeting between defendant and Agent Bright, which occurredat the Du Page Inn in Downers Grove on October 14, 1992. At this meeting, defendant and Agent Bright discussed the possibility of future drug transactions and exchanged phone numbers.

Between October 16, 1992, and October 28, 1992, despite instructions from Bright to avoid contact with defendant, Maruszak telephoned defendant on many occasions. Defendant testified that during this time Maruszak repeatedly urged him to sell drugs, told him that he was stupid if he let such a lucrative opportunity pass him by, and told him that he could make things easier for his mother by selling drugs. According to defendant, following the October 14 meeting at the Du Page Inn, Maruszak's attempts to convince him to sell drugs intensified. He stated that between October 18 and October 20, he spoke to Maruszak about four to five times per day and that during these conversations Maruszak strongly encouraged defendant to go through with the drug deal. Defendant also testified that, in addition to the calls he received from Maruszak, Agent Bright called him about seven to eight times following the October 14 meeting.

Agent Bright admitted that after the October 14 meeting, he called defendant "a couple of times." Bright further stated that during one phone conversation defendant told him that he was busy with midterms but that they could meet on October 28. On October 28, 1992, at approximately 4 p.m., Agent Bright and defendant met at the Du Page Inn. Maruszak was not present at this meeting. Defendant sold Agent Bright 1.75 grams of cocaine for $80 and six doses of LSD for $20. According to Bright, defendant also showed him a much larger "rock" of cocaine and a vial of LSD tablets that he said were promised to other customers.

Meanwhile, in October 1992, Jeff Henzler (Henzler) volunteered to serve as an informant for the Burr Ridge police department to "work off" theft and drug charges. He gave the Burr Ridge police the names of three people he believed to be drug dealers, including that of defendant. At trial, Henzler testified that he met defendant late in the summer or early in the fall of 1992 at Lewis University, where a friend of Henzler's, Tray Pecket, was a student. According to Henzler, in October 1992, while visiting the Lewis campus, he witnessed a drug transaction between defendant and Tray Pecket.

After obtaining defendant's name from Henzler, the Burr Ridge police arranged for Henzler to make a controlled purchase of marijuana from him, which occurred on October 23, 1992. Following this transaction, on October 26, 1992, Henzler introduced defendant to undercover Corporal Jerry Karceski of the Burr Ridge police department. That evening, Henzler, Karceski, and defendant met at a Shell gas station on Route 83 in Burr Ridge. According to Karceski's testimony, defendant asked what price Karceski was paying for cocaine. When Karceski told him the price he normally paid, defendant said he could do better and offered to become Karceski's supplier. Defendant then sold Karceski nine doses of LSD. In addition, he explained to Karceski his preferred method for ingesting LSD and provided certain ...


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