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April 1, 1996


Appeal from the Circuit Court of Madison County. No. 93-CF-1706. Honorable Charles V. Romani, Judge, presiding.

As Corrected April 2, 1996. As Corrected May 1, 1996.

The Honorable Justice Kuehn delivered the opinion of the court: Chapman and Maag, JJ., concur.

The opinion of the court was delivered by: Kuehn

The Honorable Justice KUEHN delivered the opinion of the court:

The defendant, Freddie Hill, was charged with unlawful delivery of a controlled substance in violation of section 401(d)(2) [sic]" *fn1 of the Illinois Controlled Substances Act (720 ILCS 570/401(d)(2) (West 1992)). After a jury trial in the circuit court of Madison County, defendant was found guilty. He was sentenced to 12 years in prison. Defendant appeals.

We must determine whether statements, made outside the presence of defendant, were properly admitted as an integral part of the drug transaction and the res qestae of the offense.

The centerpiece of the State's case was a July 7, 1993, recording. The recording was made pursuant to a court-authorized overhear targeting defendant as a suspected drug dealer. *fn2 The recording contained conversations which occurred prior to the eavesdrop of defendant.

On July 7, 1993, Ronald Raglin, under the direction of the Alton police department, was wired for sound in anticipation of a rendezvous with defendant. Raglin, a police informant, was taken to "Little Mexico," an area of Alton that defendant was known to frequent. He was activated for sound and instructed on what to do. Thereafter, he exited the vehicle, left the police officers, and walked the streets of "Little Mexico" in search of defendant. Raglin walked. As he walked, he talked. He talked to monitoring officers. He talked to two of defendant's brothers. On occasion, he talked to himself. The recording, containing discussions between Raglin and people other than defendant, was admitted and played in its entirety over defendant's objection. The recording was only partially audible. No transcripts were used. The State called a number of witnesses, Raglin, the monitoring officers, and one Elizabeth Barnes, to interpret unintelligible sounds and explain events that occurred during inaudible passages. The recording, and testimony that deciphered it, informed the jury of the following facts.

The recording begins with instructions and precautionary advice given by the monitoring officers to Raglin. Thereafter, Raglin begins his search for defendant. He conveys his position to monitoring officers as he walks. He first encounters Sammy Hill, defendant's brother. Although defendant was the target of the covert operation, Raglin asks Sammy Hill to sell him cocaine. Sammy replies that he has no cocaine to sell, but he suggests that Raglin visit the home of another brother, Robert Hill, if he wants to buy cocaine. Raglin proceeds to the home of Robert Hill. Although defendant was the target of the covert operation, Raglin asks Robert Hill to sell him cocaine. Robert replies that he does not sell cocaine out of his house. The journey continues. Raglin encounters Eric Johnson, whom he later describes at trial as "another partner or relative" of defendant. Raglin expresses concern that something is wrong. His fear intensifies when Johnson drives past him and ignores his effort to buy cocaine.

After these encounters, Raglin finds the defendant seated in his car, accompanied by an unknown male passenger. Raglin asks defendant to sell him cocaine, and defendant replies "no." Defendant exits the car and walks away. Raglin turns to the passenger and asks him to sell cocaine. The passenger declines but agrees to talk to defendant on Raglin's behalf. The passenger exits the car and walks toward defendant. Raglin follows but is told by defendant to "hold on just a minute." Raglin then returns to the car. Raglin sees Elizabeth Barnes join defendant and his unknown passenger, receive cocaine from defendant, and walk toward Raglin. Barnes approaches Raglin and delivers .9 of a gram of cocaine. Raglin tenders payment and asks her if the cocaine is "Freddie's dope." Barnes says that it is.

The information involving the actual transaction rested more on what Raglin and Barnes testified to than the audible content of the recording.

Prior to commencement of trial, defendant filed a motion in limine challenging the admissibility of recorded conversations with individuals other than defendant. Defendant sought to limit the tape's use to those portions that involved Raglin's contact with defendant. The only audible words spoken by defendant were "no" and "hold on just a minute." Defendant asserted that all other conversations were hearsay, prejudicial, and nonprobative. The State's response was twofold. It argued that all conversations contained on the tape were necessary to show the circumstances surrounding the commission of the crime. It also argued that Elizabeth Barnes was an accountable participant in the crime. Her statements, it urged, were admissible as statements of a coconspirator acting in furtherance of the conspiracy to deliver cocaine. The court denied defendant's motion and allowed the tape to be played in its entirety.

On appeal, defendant narrows the issue of error to the admission of conversations with monitoring officers, defendant's brothers, contact with Eric Johnson, and Raglin's gratuitous commentary to himself. Defendant contends that portions of the tape, recording events that occurred in defendant's absence, contained nonprobative, highly prejudicial hearsay. The State insists that the playing of the entire tape was necessary to show the circumstances surrounding the offense and the informant's efforts to locate the defendant. The State urges that the challenged evidence was a part of the res gestae of the criminal offense.

The prejudicial effect of certain conversations and commentary is not in dispute. The officers' precautionary advice to Raglin before he exits their car conveys concern over Raglin's safety and cautions against potential violence. Moreover, the informant's commentary during his search for the defendant conveys an air of fear and danger in dealing with the Hill brothers. Conversations with Sammy and Robert Hill establish that both brothers are drug dealers. The conversations insinuate defendant's guilt as part of a family drug business. Raglin's label of Eric Johnson ...

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