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People v. Castaneda

October 20, 1998

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
ADELA CASTANEDA, DEFENDANT-APPELLANT.



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

IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS

Appeal from Circuit Court of Vermilion County No. 97CF168

Honorable

John P. O'Rourke,

Judge Presiding.

Defendant Adela Castaneda was convicted following a jury trial in the circuit court of Vermilion County of one count of unlawful possession of a controlled substance with the intent to deliver (720 570/401(a)(2)(C) (West 1996)), one count of unlawful delivery of a controlled substance (720 ILCS 570/401(a)(2)(A) (West 1996)), and two counts of criminal drug conspiracy (720 ILCS 570/405.1(a) (West 1996)). On December 24, 1997, she was sentenced to concurrent terms of 12 years' imprisonment on each of the possession charges and 6 years' imprisonment on each of the conspiracy charges. She argues on appeal that she was denied a fair trial when the prosecutor argued to the jury members that they had a duty to convict her. She argues, in addition, that she cannot be convicted of the inchoate crime of conspiracy when she was also convicted of the underlying principal offense. We agree.

CONSPIRACY CONVICTIONS

We first address defendant's second issue. She argues, and the State concedes, that a person may not be convicted of both an inchoate offense and the underlying principal offense. 720 ILCS 5/8-5 (West 1996). She may raise this issue on appeal, despite not having made the argument to the trial court, because the plain error rule applies. People v. Sonntag, 238 Ill. App. 3d 854, 857, 605 N.E.2d 1064, 1066 (1992).

It was error for the trial court to enter convictions and impose sentence on the conspiracy counts because the defendant was also convicted of the underlying principal offenses. We, therefore, vacate the convictions on the two counts of criminal drug conspiracy. However, as defendant and the State agree, if this is the only relief provided by this court, a resentencing hearing is not necessary. We, therefore, turn to the facts of the case.

FACTS

Vermilion County sheriff's department investigator Rod Kaag was contacted by Jose Colunga on February 4, 1997. Colunga, an informant, told Kaag that a large quantity of cocaine was about to be brought to a Hoopeston address by some people from Chicago. Kaag and other agents set up surveillance of the address given by Colunga. Colunga contacted Kaag a second time and told him that the drugs had arrived and that the people in the house needed scales to weigh the cocaine to repackage it for distribution. The police then arranged for Colunga to make a controlled purchase at the residence.

Kaag testified that while the officers watched the outside of the house, Colunga went inside carrying $300 in currency that had been photocopied for identification. When he left the house, he no longer had the money, but he was carrying a substance that field-tested positive for cocaine. Kaag obtained a search warrant for the house where defendant lived with her husband, Jose Mario Castaneda (Mario), and their children. Defendant, who is the sister of Colunga's wife, Sally, was inside the house when Colunga made the purchase. Mario arrived just prior to the execution of the search warrant. The police found four other adults and three children inside.

Jose Colunga testified that he had assisted the police on several occasions, in the hope that he could avoid going to prison on a pending marijuana charge. His wife told him that her sister, the defendant, told her that there "was going to be some stuff coming down" from Chicago. When he was preparing to enter the house to make the controlled purchase, he was given $300 to purchase one-quarter ounce of cocaine. He testified that Estrella, one of the visitors from Chicago, quoted him the price. Later, he said he knew the price, "Cause that's what the prices are in Hoopeston." After the defendant opened the door for him, he told her that he had come to talk to Estrella about buying some cocaine. Defendant told him that "they couldn't do anything because they didn't have scales." Colunga said that he brought scales. Then he, Estrella, and one of the men went into the bedroom with the scales and closed the door. Once in the bedroom, he saw a "[b]ig package of cocaine." He paid Estrella $300 for some cocaine that was cut from the big package and weighed on the scales. While these three were in the bedroom, the defendant was in the dining room "watching the doors so the kids won't get in." When he left, defendant was in the dining room or the kitchen.

On cross-examination, Colunga stated that defendant quoted him a price of $900 per ounce during a telephone conversation. On redirect, he explained that this conversation took place about an hour before he went to make the purchase. He said that his wife spoke to defendant on the phone. Then, he said that he actually spoke to defendant. Finally, on recross-examination, he stated that defendant called him looking for scales and that he asked her the price per ounce. She responded that it was $900. Both he and his wife talked to defendant during the call.

Estrella was arrested that night and had the $300 in her possession. Defendant was arrested at her sister's home on April 1, 1997.

Illinois State Police special agent Gregory Dixon testified that he spoke with the defendant after her arrest. After he informed defendant of her rights, she signed a waiver and agreed to the interview. Defendant told him that in late January, she and her husband had some visitors from Chicago. One of them, Estrella, brought one-half kilogram of cocaine and tried, unsuccessfully, to sell it in Hoopeston. When the visitors got ready to leave, their car would not start. Defendant and her husband agreed to sell their car to them for $4,000, with a $2,000 down payment. The visitors left in the car, with the promise to return in several days with the $2,000 balance.

Defendant came home on February 4, 1997, to find Estrella and her friends there. Estrella retrieved a blanket from the car and "made some kind of gesture that led [defendant] to believe that the blanket contained [] cocaine." Estrella took the blanket into the back bedroom. At approximately 8 p.m., Colunga called and asked for Mario. Colunga wanted to know if the cocaine had arrived. Defendant told him her husband was at work and that Colunga would have to talk to Mario. Colunga arrived a bit later to buy $300 worth of cocaine. He and Estrella went in to the back bedroom. Defendant saw Estrella putting $300 in her vest pocket as Colunga was leaving.

Dixon testified that defendant indicated no surprise that cocaine was brought into her home on either occasion. She did not indicate that she had made any effort to get the cocaine out of her house. She was aware of the transaction with Colunga as it was taking place. It was Dixon's opinion that defendant's husband was "doing a lot of the actual dealing," but that defendant assisted him by "fielding phone calls," for example.

At the Conclusion of the State's closing argument, the prosecutor said:

"Your oath requires you to find the correct verdict on this evidence and on the law ***. I would suggest your oath requires you to find the Defendant guilty on all of the charges.

You people came in here yesterday *** and you took on a duty just like the Judge *** when he became a Judge, I took on one, [and] [the assistant Attorney General] took on one when we became prosecutors and [defense attorney] took on one when he became a defense lawyer. Your duty is you are part of the system ***. When a jury comes into a court- room and has evidence like this presented to it and it is unrebutted evidence, it is not living up to your oath, you are not doing your duty if you let her walk out of here."

Defense counsel objected and the trial court overruled the objection.

The prosecutor then concluded:

"Because on the evidence you have heard you will not be living up to your duty to the system, to the People of the State of Illinois[,] if this type of evidence lets someone walk out of the courtroom."

Defendant's posttrial motion raised the issue of improper closing argument, specifically the prosecutor's remarks regarding the duty of the jurors to convict. The motion was denied ...


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