APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE DANIEL J. KELLEY, JUDGE PRESIDING.
As Corrected January 21, 1998.
The Honorable Justice Wolfson delivered the opinion of the court. Cerda, P.j. and McNAMARA, J., concur.
The opinion of the court was delivered by: Wolfson
The Honorable Justice WOLFSON delivered the opinion of the court:
Before his cocaine delivery trial, the defendant Gerald Manuel challenged the admissibility of recordings of his telephone conversations with an informant and a drug enforcement agent. He was unsuccessful. At trial, the jury heard the conversations where the defendant negotiated terms and conditions for the sale of cocaine.
After a jury trial, Manuel was found guilty of delivering more than 100 grams, but less than 400 grams, of cocaine in violation of section 401(a)(2) of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1991, ch. 56 1/2, par. 1401(a)(2)(B) (West 1992)); (now 720 ILCS 570/401(a)(2)(B) (West 1992)). The sentencing range for this offense is 9 to 40 years. Manuel was sentenced to 12 years imprisonment.
After trial, Manuel filed an appeal from his conviction and sentence. Before any appeal briefs were submitted, however, Manuel filed a pro se post-conviction petition. The trial court summarily dismissed the post-conviction petition without an evidentiary hearing.
Now, in this consolidated appeal, we address Manuel's direct appeal from his conviction, as well as his appeal from the denial of post-conviction relief. We affirm the trial court's orders in both proceedings.
At trial, the following evidence was presented:
Chris Robinson (Robinson) was a convicted felon with an extensive criminal history. Then, between September 1992 and January 1993, he came under investigation for dealing in cocaine. He made five deliveries to undercover agents during this time period and a warrant was issued for his arrest.
On April 6, 1993, Robinson turned himself in to the FBI. He later pled guilty to the five deliveries. He knew he could be facing a sentence of up to 150 years imprisonment because of the five deliveries and his past criminal history. Therefore, when the FBI asked for his cooperation, he agreed to be an informant in the hope of obtaining leniency.
On April 8, 1993, while represented by legal counsel, Robinson signed an agreement to cooperate with the government law enforcement officers in exchange for a promise that his cooperation would be taken into consideration at the time of sentencing. Robinson then disclosed information about one of his Chicago drug suppliers, known to him as "Tate," but later identified as defendant, Gerald Manuel. Robinson said he had been obtaining drugs from Manuel for the past year. Robinson would purchase between two and 14 ounces of cocaine from Manuel every week or two. Robinson also socialized with Manuel over the past year. Their relationship was friendly.
In addition to revealing this source, Robinson agreed to arrange for an undercover agent to purchase cocaine from Manuel and to accompany this agent at the purchase. Sometime on April 12th or 13th, Robinson paged Manuel from Springfield and, when Manuel called back, made arrangements for this drug purchase.
On April 14th Robinson paged Manuel again, this time from the offices of the Springfield State Police. Robinson explained that whenever he paged Manuel he entered a special code number -"223" -- which identified him to Manuel as the caller. Manuel phoned Robinson at the station. The conversation was recorded with Robinson's permission. A tape-recording of this conversation was entered into evidence.
In this conversation, Robinson told Manuel he had a buyer -a female -- who was willing to purchase 1/4 of a "key" or "kilo" of cocaine (about nine ounces) for $7,000. The $7,000 price apparently was high, but Robinson told Manuel he could "juice" the buyer. Robinson explained to the jury this meant Manuel could overcharge her.
During this conversation, Robinson told Manuel his last delivery was "no good" and he lost "3Gs" because of the poor quality of the cocaine that was delivered. Robinson explained to the jury "3Gs" meant $3.000.
On April 15, 1993, Robinson drove to the Chicago area in the company of FBI Agent Ranck and Illinois State Police Officer Marks. At about 1 p.m., Robinson met Agent Yorli Huff, a female officer for the Northeast Metropolitan Enforcement Group (NEMEG, now called MEG of Cook County), a multi-jurisdictional drug task force. They met at the Hillside Police Department at 30 Wolf Road. From this station, Robinson paged Manuel. Manuel answered the page, calling a phone hooked up to a recording device at the Hillside Police Station. With the written consent of both Agent Huff and Robinson, their phone conversations with Manuel were recorded. This recording, too, was placed into evidence.
In this conversation, Manuel agreed to deliver cocaine to Robinson's buyer. He told Robinson and Huff to meet him at 7650 Greenwood in Chicago. This location, said Robinson, was a residence where he typically met with Manuel. Robinson had been there numerous times before.
Robinson, wearing a "body wire" (recording device), rode with Huff to this location. MEG officers Lewis and Beavers, riding in another unmarked car, were among the approximately 20 State police, Chicago police, and Cook County Sheriff's officers assigned to the operation to provide back-up.
At about 4:15 p.m., Robinson arrived at 7650 Greenwood. He got out of the car alone and went to the second-floor residence. Manuel called him there and told him to wait for him. Robinson went outside for a while, then returned to the residence, and received a second call from Manuel at about 4:30 p.m. During this second conversation Robinson told Manuel to be sure to bring him four ounces of "raw" (powder cocaine) to make up for his last bad deal.
Robinson went back outside and Manuel arrived at about 5 p.m., riding in a cream-colored Cadillac driven by a man later identified as (co-defendant) Patterson *fn1 Patterson went inside the residence, but Manuel met with Robinson in the street and then came over to meet Huff, who was sitting in the car. After meeting Huff, Manuel told Robinson to follow him. Manuel got back into his Cadillac with Patterson and drove off.
Robinson attempted to follow, but Patterson began driving fast and "crazy." Huff called off the deal and the officers re-grouped at a police station at 71st and Cottage Grove. From this location Robinson again paged Manuel.
Manuel returned the call and Robinson complained about his driving. Manuel explained that he saw a car following them and thought it might be the police. Robinson allayed Manuel's fears by explaining that the car following them was Huff's "security." Having been reassured, Manuel again agreed to go through with the deal. He told them to meet him in the Walgreen's parking lot at 127th and Halsted.
Officer Judge testified at trial. He was part of the surveillance team providing back-up for the drug purchase. Before Robinson and Huff arrived at the Walgreen's parking lot, Officer Judge noticed a blue Nissan Maxima, with license plate number WXH 925, enter the Walgreen's parking lot. A man he identified as Patterson drove the car into the lot, parked it, and then got into a cream-colored Cadillac. The officer identified Manuel as the driver of the Cadillac. The Cadillac then left the parking lot. Later, at about 6 p.m., Robinson and Huff pulled into the parking lot.
According to Robinson's testimony, MEG agents Lewis and Beavers, who had been identified as Huff's "security," followed them into the Walgreen's parking lot. Soon the cream-colored Cadillac pulled into the lot. Patterson got out of the Cadillac and went into the Walgreen's store. Manuel walked over to Robinson and asked to meet Huff's "security." Huff and Robinson then brought Manuel over to the other car, where he shook hands with Officer Lewis. Officer Lewis showed Manuel a black money bag containing $7,000. He did not turn over the money to Manuel.
Manuel, Robinson testified, seemed uneasy. He walked around the officers' car and suggested that Huff's "security" looked like detectives. Nevertheless, he walked back to Robinson's car with Robinson and Huff, got in, and negotiated with Huff for the sale of the cocaine.
Huff told Manuel she would not pay until she saw the drugs. Manuel handed a car key to Robinson and told him the key belonged to the blue Nissan Maxima parked in the lot. The drugs were in the car, he said. The three of them exited Robinson's car. With Manuel's permission, Robinson gave the key to Huff and she walked over to the Maxima. When Huff started to open the passenger compartment of the car, Manuel corrected her and told her to open the trunk. Huff opened the trunk, but it appeared empty. Then Manuel came over and pulled up the lining in the trunk to expose a brown paper bag. Huff retrieved the bag from the trunk and looked inside. She saw two plastic bags, one containing off-white or brownish "chunks," and a second containing an off-white powder.
Huff said the stuff "looked good." This was a signal to the many officers in the area to move in and effect the arrest of Manuel and Patterson. Within minutes, both Manuel and Patterson were arrested in the Walgreen's parking lot. Neither of them was found to be in possession of any weapons.
Along with the testimony of Agent Huff, Agent Lewis, and Chris Robinson, the State presented the testimony of Richard Paulas, Assistant Director of the Illinois State Police Lab at Maywood. In 1993, he had been working as a forensic chemist at the facility and performed identifying tests on the substances Agent Huff recovered from Manuel and suspected to be cocaine. Paulas testified that the "chunky" off-white substance found in the plastic bag marked as exhibit 3A weighed 243.0 grams. Further tests indicated that the substance contained cocaine in a "free base" form. The other plastic bag, marked as exhibit 3B, contained a more powdery substance. This, too, tested positive ...