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People v. Diaz

March 12, 1998


The opinion of the court was delivered by: Presiding Justice Cerda

Following a jury trial, defendant, Samuel Diaz, was convicted of possession of a controlled substance with intent to deliver (720 ILCS 570/401(c)(2)(West 1994)), unauthorized delivery of contraband in a penal institution by an employee (720 ILCS 5/31A--1.2(c)(2)(West 1994)), and official misconduct (720 ILCS 5/33--3(c)(West 1994)). He was sentenced to 10 years' imprisonment. On appeal, defendant asserts that (1) there was insufficient evidence to convict him; (2) the State violated Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963) in that it withheld evidence that its main witness received a greatly reduced sentence in exchange for his testimony; and (3) the State allowed perjured testimony from its main witness to go uncorrected. For the following reasons, we affirm.

Cook County deputy sheriff, Maria Johnson, testified that she had a conversation with George Muriel, an inmate at Cook County Jail, at 3:15 p.m. on January 4, 1994. Muriel told her that defendant, a lieutenant at the jail, was willing to bring cocaine into the jail for $100. Johnson, who was assigned to the Sheriff's Criminal Corruption Unit, instructed Muriel to give defendant her pager number and her code name, Rosa.

At 5:46 p.m., Johnson received a page. When she returned the call, defendant answered the telephone and asked Johnson whether the food was ready. Johnson responded that it was not a matter of food. Defendant acknowledged that he knew it was not food, but did not want to talk about it over the phone. There was a disagreement about the amount of money defendant was charging, so defendant told Johnson that he would call her back. Ten minutes later, Johnson was again paged from the same number. She called defendant, who put Muriel on the phone. After Muriel told Johnson that the amount was $175, defendant spoke with Johnson. He offered to meet Johnson at a restaurant, but she refused because the price had gone up $75. Muriel got back on the phone and told Johnson to page defendant when she was ready.

On January 10, 1994, at 9:58 p.m., Johnson received a page. When she called the number, defendant answered the phone, identifying himself as Lt. Diaz. Defendant asked Johnson whether the package was ready. Because Johnson had not yet obtained court authorization to record conversations with defendant, she told him she was upset with Muriel and was not sure that Muriel would get his cocaine and defendant his money. Defendant admonished her not to talk about those things on the phone.

Two days later, Johnson obtained a court order allowing her to record conversations between herself and defendant until January 22, 1994, but defendant was absent from work from January 16 until January 23 due to a death in his family. When Johnson spoke with Muriel on January 24, 1994, he said that defendant was back at work and was willing to take $100 to bring cocaine into the jail. The next day, Johnson obtained another court order to record conversations with defendant.

On January 26, 1994, at 4:15 p.m., Johnson received a page. She returned the call from the State's Attorney's Office and activated a tape recorder. After defendant identified himself, Johnson spoke with Muriel, who told her in Spanish that the purpose of defendant's call was to ask "if the stuff was ready." Further, Muriel told Johnson that defendant wanted to be called Pito rather than his real name.

Defendant then spoke to Johnson in Spanish. After agreeing on a price of $100, they agreed Johnson would page Diaz before 3 p.m. the next day. An audiotape of the conversation was played for the jury.

The next day at 11:41 a.m., Johnson dialed defendant's pager number. When he returned the call, they agreed to meet at a restaurant at 2:30 p.m. Johnson asked if defendant "would take care of the white stuff," but defendant replied that he did not like to talk about that over the phone. He advised her to come alone and described his car. An audiotape of that conversation was played for the jury.

After the conversation, Johnson obtained and photocopied five $20 bills with clearly legible serial numbers as well as cocaine supplied by the State's Attorney's Office. She did not weigh the cocaine before placing it in a small clear plastic baggie, knotting and burning the end, and placing a small red mark near the burn mark.

Johnson and four other officers went to the restaurant, but she received a page from defendant at 2:10 p.m. Defendant changed the meeting place to a Walgreen's parking lot near 26th and Albany Streets. An audiotape of that conversation was played for the jury.

At the Walgreen's parking lot, when Johnson saw defendant's car, she approached defendant and asked if he were Pito. After Johnson got into defendant's car, defendant asked her for identification so that he could be sure she was not a Drug Enforcement agent. Without showing any identification, Johnson gave defendant the $100 and the cocaine. At trial, she identified the bag, with the red mark, that she had given defendant. Defendant put the cocaine in his pocket and told Johnson that Muriel would get the cocaine that day. An audiotape of that conversation was played for the jury.

At 9:30 a.m. on January 28, 1994, State's Attorney Investigator Robert Sullivan, an investigator in the Internal Affairs Division of the Cook County Jail, gave Johnson the package of cocaine he received from Muriel. Johnson identified the package as the same sealed bag that she had given defendant. Sgt. James Houlihan, commander of the Criminal Corruption Unit of the Cook County Sheriff's Department, testified that he was present in the State's Attorney's Office on January 13, 1994, when assistant State's Attorney Christopher Donnelly took a plastic bag of cocaine from the office's narcotics vault, opened it, poured half a baggie full of the cocaine, and gave it to Johnson, who put a marble-sized amount of cocaine into a baggie, then knotted and burned the end. Sgt. Houlihan then went with other surveillance officers to the Walgreen's parking lot, where he saw Johnson meet with defendant.

George Muriel testified that he contacted Johnson, whom he knew as Rosa, at 3:15 p.m. on January 4, 1994, and told her that defendant was willing to bring cocaine into the jail for $175. Muriel's testimony about the events from January 4 until January 26, 1994, was substantially the same as Johnson's testimony. Further, Muriel stated that he was called to defendant's office between 5 and 5:30 p.m. on January 27, 1994. After he sat down, defendant tossed him a pack of cigarettes and said, "I take care of my business." When he returned to his cell, he opened the pack and pulled out some cigarettes. The cigarettes were chopped off and the cigarette box contained cocaine in a plastic bag, which was tied, with the tip burned to seal it. Muriel identified the bag in court. He tried to contact Investigator Robert Sullivan that night, but there was no answer in his office, so Muriel contacted Sullivan the next morning. Muriel denied opening the bag or doing anything to the cocaine while it was in his possession. He also stated that he received no promises for his testimony.

The parties stipulated that Chicago Police Department chemist, Linda Jenkins, tested 4,839.67 grams of cocaine on February 22, 1989, and that the cocaine remained in the proper custody of the State's Attorney's Office until it was withdrawn on January 27, 1994. There was a further stipulation to the chain of custody of the package from the time Muriel gave it to Investigator Sullivan. The package was tested by Illinois State Police chemist Fella Johnson, who determined that it contained 1.5 grams of cocaine. It was also stipulated that defendant was a public employee on January 27, 1994.

In his defense, defendant testified that Muriel asked him on January 4, 1994, if he would bring drugs into the jail. Even though he had no intention of doing so, he told Muriel he would think about it. Defendant explained that he wanted to conduct his own investigation. The inmates were angry with him because they thought he had authorized food containing drugs to come into the jail, then ordered the food thrown away.

On January 24, 1994, Muriel told defendant that a large quantity of drugs would be dropped off in front of Division 6 next to a flower bed. He asked defendant to bring the drugs into the jail and Muriel would pay him after he distributed the drugs. At 7:30 p.m., defendant went outside, picked up a plastic Coca-Cola cup, brought it inside, called Captain Davis, and opened the package in Davis's presence. The package contained six ziplock bags of suspected crack cocaine, five yellow envelopes of suspected marijuana, three red and gray capsules, and three white tablets. The captain instructed defendant to take the drugs to the division chief's office. At trial, defendant produced a copy of the narcotics logbook, which contained an inventory of the confiscated drugs undersigned by Chief Holly.

When Muriel approached defendant on January 26, 1994, and said that his girlfriend was ready, defendant agreed to meet Rosa. Defendant admitted meeting Johnson and receiving five $20 bills and a clear plastic bag containing white powder, but he claimed he was only doing his job because he was conducting his own investigation. However, he never told anyone of that investigation. Further, he denied giving Muriel a cigarette package or any drugs and claimed that he destroyed the plastic bag and changed the bills at a currency exchange.

After deliberations, the jury convicted defendant of unauthorized delivery of contraband in a penal institution by an employee, official misconduct, and possession of a controlled substance with the intent to deliver. The trial court denied defendant's motion for a new trial, which was based on the following notes in the State's files. The first note stated:

"3-4-94 Gaughan (c) i/c BA 3/14/94 PG/?FG 6 yrs conc. to 93-9338. As Class X per Wayne Meyer ok to concurrent ( worked as informant for Public Integrity)

The second note read:

"3-4-94 Gaughan (c) i/c BA 3/14/94 per Wayne Meyer - 6 yrs. DOC case. on both cases 230 days TCS. per Wayne Meyer ok to run concurrent on 93-16315 b/c  worked as informant for public Integrity PG/?FG 6 yrs DOC conc to 93-16315 As Class X."

The trial court found that the jury had sufficient information, along with the jury instruction, that Muriel had acted with a view toward obtaining some benefit so that the jury could have discounted his testimony had they chosen to do so. The trial court then sentenced defendant to 10 years' imprisonment.

Defendant first contends that the State failed to prove him guilty beyond a reasonable doubt. He argues that the State's case was based almost entirely on the inherently unreliable and uncorroborated testimony of George Muriel, who was not credible because he is a convicted felon and a drug addict, and that his testimony was "fanciful and bizarre." Defendant also asserts that there was no independent corroboration that he delivered the cocaine to Muriel.

Defendant correctly states that testimony by an informant who himself abuses unlawful substances and who participates in an undercover operation to minimize punishment for his own illegal activity should be closely scrutinized. People v. Anders, 228 Ill. App. 3d 456, 464, 592 N.E.2d 652 (1992). However, there was no evidence in the record that Muriel is a drug addict. Muriel's uncontradicted testimony was that he did not abuse drugs or alcohol. While Muriel's testimony is suspect due to his criminal background, the reasonable doubt threshold can be overcome if the testimony is partially corroborated. Anders, 228 Ill. App. 3d at 464.

The State argues that Muriel's testimony was not as crucial as defendant asserts and was corroborated by the testimony of Officer Johnson. Furthermore, the State stresses, the jury was well aware of Muriel's prior criminal history and was instructed as follows:

"Evidence that a witness has been convicted of an offense may be considered by you only as it will affect the ...

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