APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE DANIEL WELTER, JUDGE PRESIDING.
Presiding Justice Hoffman delivered the opinion of the court: Theis and S. O'brien, JJ., concur.
The opinion of the court was delivered by: Hoffman
A jury convicted defendant, Daniel LeCour, of possession of cocaine with intent to deliver, arising from his participation in a transaction involving an undercover officer. On appeal, defendant argues that (1) the evidence was insufficient to sustain his conviction; (2) the court erred in admitting evidence of defendant's prior narcotics transactions; (3) defendant was denied due process because the State failed to produce a confidential informant who participated in the transaction for which defendant was on trial; and (4) prosecutorial misconduct deprived defendant of a fair trial.
During May and June of 1991, officers Mark Wilkans and Tim Swanson orchestrated an undercover narcotics investigation with the help of a confidential informant. The informant notified Wilkans about a man by the name of Anthony Russo who would deliver quantities of cocaine. At Wilkans's request, the informant arranged a purchase of one quarter ounce of cocaine through Russo.
On May 15, 1991, Wilkans and the informant drove in Wilkans's car to the parking lot of a Big Boy restaurant. There, the informant introduced Wilkans to Russo, who stated that the price of the cocaine would be $350. Wilkans gave the informant the money, and Russo and the informant departed in Russo's car for another location to make the purchase.
Russo drove to the parking lot of a nearby pharmacy where defendant was waiting in his car. Russo had informed defendant that he was making the buy for a high school friend. Russo testified that he entered defendant's car but that when defendant saw that Russo was not alone, defendant became angry and left the area. Russo returned to the Big Boy restaurant where he paged defendant and arranged to meet him at another location without the informant. Russo drove to that location, pulled up next to defendant, entered his car, and gave defendant the money in exchange for cocaine. Russo then returned to the Big Boy parking lot where Wilkans and the informant were waiting. He handed the narcotics to Wilkans through Wilkans's driver's side window, and then drove away in his own car. Russo was never informed that Wilkans was a police officer or that the informant was working with police.
A second purchase occurred on May 18, 1991, in much the same manner as the first. Russo drove to the Big Boy parking lot where Wilkans and the informant were waiting in Wilkans's car. Wilkans handed Russo the purchase money, and Russo drove to the parking lot of a nearby restaurant and waited for defendant. When defendant arrived, Russo got into his car and the two exchanged the money for the cocaine. Russo then returned to Big Boy, where he handed the cocaine to Wilkans through the window of Wilkans's car.
The third purchase, giving rise to the charges at issue, occurred on June 25, 1991. This time, Wilkans told Russo that he wanted to purchase one half of a kilogram of cocaine. Russo contacted defendant, who initially expressed reluctance about the deal; however, defendant then stated that the price would be $16,500 and that he wanted to do the entire exchange in one meeting. When Russo met Wilkans at Big Boy to obtain the cash, Wilkans refused to give him the entire $16,500 at once. Instead, Wilkans stated that he would give Russo $4000 in exchange for a commensurate amount of cocaine, and if the cocaine proved satisfactory, he would tender the balance later. Russo called defendant to explain the new terms, and defendant replied that he would need more time to prepare. Russo left Big Boy and drove around for awhile, eventually calling defendant again from a pay telephone, and agreeing to meet him at a defunct International House of Pancakes restaurant.
Russo obtained the payment from Wilkans and proceeded to the restaurant. He waited in the parking lot for 30 minutes, and then spotted defendant on a nearby public telephone and picked him up. Russo and defendant drove around the area and Russo gave defendant the purchase money. They then entered defendant's car and drove around the block, and defendant told Russo that the cocaine was under the passenger's seat wrapped in a paper towel. Defendant advised Russo not to touch the bag itself because he would leave fingerprints. After Russo retrieved the package, defendant dropped him off at his car and Russo drove away with the cocaine. Shortly thereafter, Russo noticed two police cars following him. He increased speed and attempted to discard the cocaine by throwing it over the roof of his car; however, police succeeded in blocking him, and then placed him under arrest. Russo testified that at the station, police showed him the bag that he had been carrying, which he recognized as having a yellow stripe on the top.
On cross examination, Russo testified that he had been an occasional cocaine user and was in a drug rehabilitation program several years prior to trial. Russo received no payment for the transactions in behalf of Wilkans but instead took a small portion of the cocaine for his own use. Russo admitted there was a criminal case pending against him resulting from the transactions at issue.
Officer Tim Swanson conducted surveillance of the May 15, May 18, and June 25, 1991, transactions. Swanson corroborated the details of the three transactions as described by Russo, including the routes taken by Russo to go from Wilkans to defendant. On May 15, Swanson witnessed the informant, Wilkans, and Russo at Big Boy, and then followed Russo and the informant as they drove to the pharmacy. Swanson testified that at the pharmacy, Russo got out of his car and briefly met a man Swanson identified as defendant. Russo then left, but later met defendant again, without the informant. Swanson testified that he observed the May 15 and May 18 transactions through binoculars, and was able to discern arm movements between Russo and defendant.
Sergeant Chris Noel also participated in surveillance of the June 25, 1991, transaction and substantially corroborated Russo's testimony as to the details and routes taken. Noel testified that he and other surveillance officers kept Russo's automobile under constant observation from the time he arrived to meet Wilkans until the time he completed the purchase from defendant. Noel indicated that at one point he got within five feet of Russo's car and was able to identify his passenger as defendant. After Russo left defendant, Noel followed him until he was eventually arrested. Noel watched as Russo threw a white package over his car, and testified that the package was later shown to weigh 112 grams and contain 87% cocaine. Noel testified that he searched both defendant's and Russo's cars, but recovered neither money nor narcotics.
Defendant testified that around the time of the offense, he was attending school and doing detail work on his automobile. Defendant admitted meeting with Russo twice on May 15, 1991, and then again several days later, but contended the meetings concerned detail work defendant was to perform on Russo's car. On June 25, 1991, defendant went for pizza and then telephoned Russo for a ride home. Russo initially declined, but then defendant offered him money for gasoline and agreed to meet him at a location nearer to Russo from which Russo could then drive defendant to his car. When they arrived at defendant's car, Russo again got inside to examine defendant's detail work.
Following arguments, the jury found defendant guilty of possession of a controlled substance with intent to deliver. Defendant was sentenced to 18 years' imprisonment, and after the ...