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12/21/95 PEOPLE STATE ILLINOIS v. NICHOLAS VARGAS

December 21, 1995

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
NICHOLAS VARGAS, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. Honorable Arthur L. Janura, Judge Presiding.

The Honorable Justice Theis delivered the opinion of the court: Hoffman, P.j., and O'brien, S., J., concur.

The opinion of the court was delivered by: Theis

The Honorable Justice THEIS delivered the opinion of the court:

The defendant, Nicholas Vargas, appeals from a judgment entered on a jury verdict finding him guilty of delivery of a controlled substance. (Ill. Rev. Stat. 1991, ch. 56 1/2, par. 1401(c)(2).) The questions presented on review are: (1) whether the trial court erred in denying the defendant's motion to quash his arrest and suppress evidence because Schaumburg police officers exceeded their authority by arresting him in Hoffman Estates (65 ILCS 5/7-4-8 (West 1992) formerly Ill. Rev. Stat. 1991, ch. 24, par. 7-4-8); (2) whether the trial court erred in denying the defendant's motion for a mistrial due to certain remarks made by venire members in the presence of jurors who ultimately served on the defendant's jury; (3) whether the court erred in failing to excuse a prospective juror for cause; (4) whether the court erroneously admitted evidence of other crimes; and (5) whether the defendant was denied a fair trial due to testimony about his tattoos and a question concerning a witness's club or organization affiliation. We conclude that the court's denial of the defendant's motion to quash arrest and suppress evidence was not manifestly erroneous. We further determine that the defendant failed to show prejudice with respect to comments made by prospective jurors, and that the court properly refused to excuse a juror for cause. Further, the defendant waived the issue of whether the State improperly elicited testimony regarding other crimes which did not expressly implicate the defendant. Finally, testimony regarding tattoos and the State's question about club membership did not prejudice the defendant so as to deny him a fair trial. Therefore, the defendant's conviction is affirmed.

Prior to trial, the defendant filed a motion to quash his arrest and suppress evidence obtained during his arrest, charging that Schaumburg police officers did not have the authority to arrest him in Hoffman Estates. The defendant did not offer any testimony or evidence at the hearing. The court denied the motion finding that section 7-4-8 of the Illinois Municipal Code authorized the Schaumburg police to arrest the defendant in Hoffman Estates.

At trial, Officer Craig Modjeski of the Schaumburg police department testified on behalf of the State. He explained that on December 7, 1990, he and Detective Patrick White were working on an undercover narcotics sting operation. Modjeski stated that he contacted David Bernal using an undercover telephone at the Schaumburg police station. He agreed to meet Bernal at Chili's restaurant at 6 p.m. in Hoffman Estates to purchase a half ounce of cocaine from him for $650. He further stated that Bernal selected the meeting site.

At approximately 5 p.m. the officers held a meeting at the Schaumburg police department concerning the operation. Two Hoffman Estates police officers attended the meeting. Modjeski testified that when a drug deal is arranged to take place in another city or village, the Schaumburg police department contacts the other municipality and has them come along.

Modjeski testified that he arrived at Chili's at 6 p.m. and that surveillance units were in place both inside and outside of the restaurant. Modjeski stated that upon entering Chili's he took a seat in a booth behind his inside surveillance. After approximately 50 minutes David Bernal and the defendant entered the restaurant. Bernal sat down at the booth with Modjeski, but the defendant sat down at an adjacent table. Modjeski testified that both Bernal and the defendant were approximately three to four feet away from him.

Modjeski further explained that Bernal introduced the defendant, referring to him as "his partner, Little Man," and that the defendant shook his hand and smiled. When Modjeski asked Bernal whether the defendant was carrying a gun, he stated, "Well, he is my backup." Modjeski testified that when Bernal made this statement, the defendant looked at him and smiled. Modjeski and Bernal then discussed the drug transaction using a normal tone of voice. They eventually agreed to proceed with the transaction in Modjeski's car.

Modjeski testified that when they arrived at his car, Bernal told the defendant to "do" Modjeski if he did anything stupid. Modjeski stated that the defendant looked at him and smiled when Bernal made this statement. Then, they all entered the car where Bernal gave Modjeski a package containing a white powdery substance. Modjeski testified that when he retrieved an electronic scale from the glove compartment, the defendant offered to buy it from him. Modjeski informed the defendant that the scale was not for sale and handed Bernal $650. Modjeski further testified that the defendant, who was seated in the middle of the back seat, was looking over into the front seat during the transaction. Modjeski then signaled to the surveillance officers to proceed with the arrests and left the car.

The parties stipulated that Deborah Magolan, a forensic scientist for the Illinois State Police, tested and analyzed the contents of the package obtained from Bernal and found it to be 14.6 grams of a substance containing cocaine. The State then rested and the judge denied the defendant's motion for a directed verdict.

The defendant called David Bernal to testify on his behalf. Bernal stated that he had known the defendant for 12 years. He further stated that in December of 1990, he saw the defendant walking along the road when he was on his way to Chili's to deliver drugs to Modjeski. He testified that he picked the defendant up because he appeared to be drunk. He then continued to Chili's. Bernal further stated that he never asked the defendant to be his bodyguard or look out. He also claimed that he did not tell the defendant that he was going to Chili's to deliver cocaine.

Bernal testified that he entered the restaurant and sat down at a booth with Officer Modjeski. He explained that the defendant sat at a table approximately 20 feet away from them. Bernal testified that after they left Chili's, Modjeski had to ask the defendant twice to climb into his car before he finally complied. Bernal also testified that he pleaded guilty to delivery of a controlled substance and was sentenced to four years in prison.

On cross-examination, Bernal testified that the defendant is his ex-wife's brother. He further stated that the defendant lived about 10 minutes from where Bernal picked him up before going to meet Modjeski. Bernal admitted that he told Modjeski that the defendant was called Little Man and that he was his brother-in-law. He also admitted that he told Modjeski that the defendant was his backup. Bernal further testified that he told the defendant to "do" Modjeski if he did anything stupid. He claimed that he, not the defendant, asked to purchase the scale.

On cross-examination, Bernal admitted that he had been selling narcotics for about six months prior to the December arrest, but claimed that he did not tell the defendant about his involvement with drugs. Bernal conceded that he waited until two days after his arrest before telling Officer Modjeski that the defendant was not involved in the December 7 drug transaction.

In response to the State's questions, Bernal indicated that he had several tattoos. The State then asked Bernal whether he belonged to any clubs or organizations. The court sustained the defendant's objection to this question and Bernal did not respond. The State further questioned Bernal about whether the defendant had any tattoos. Over the defendant's objection, Bernal testified that the defendant had a couple of tattoos, but that the defendant's differed from his. The defendant then moved for a mistrial, arguing that the State improperly interjected the issue of gangs into the trial. The court denied the motion.

In rebuttal, the State called Officer Serio who testified that he observed the defendant entering and exiting Chili's restaurant. He testified that he did not see the defendant staggering or stumbling, nor did he observe anything unusual about the manner in which the defendant walked.

The State then recalled Officer Modjeski who testified that on November 30, 1990, he conducted a separate drug transaction with Bernal. Modjeski further stated that Bernal told him that he had to hurry because his brother-in-law was out in the car ...


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