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People v. Nolan

June 28, 2002

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
ROSE NOLAN AND ACQUINETTA POWELL, DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Cook County Honorable Robert Bertucci, Judge Presiding.

The opinion of the court was delivered by: Justice Quinn

UNPUBLISHED

From April 1994 until November 1994, the Cook County State's Attorney's office, in conjunction with the Cook County sheriff's department, conducted a drug operation investigation known as "Operation Hollywood." The investigation led to the indictments of six individuals, Rose Nolan, Acquinetta Powell, Paul Campbell, Phyllis Odum, Ester Tanner and Marshall Collier, on counts of criminal drug conspiracy and possession of a controlled substance with intent to deliver. Following separate jury trials, defendant Nolan was found guilty of criminal drug conspiracy and was sentenced to 19 years' imprisonment; defendant Powell was found guilty of criminal drug conspiracy and was sentenced to 12 years' imprisonment.

On appeal, defendant Nolan argues that: (1) the trial court erred in summarily granting the State's motion for substitution of judge; (2) she was deprived of a fair trial where the trial court informed the jury that she had a prior conviction; (3) she was deprived of a fair trial where the trial court allowed the introduction of evidence that co-defendant Campbell had been carrying a gun; and (4) she must be resentenced where the trial court erroneously believed that a minimum sentence existed for the offense of criminal drug conspiracy.

On appeal, defendant Powell argues that: (1) the trial court erred in summarily granting the State's motion for substitution of judge; (2) the trial court erred in failing to suppress defendant's statements; and (3) she was not proven guilty beyond a reasonable doubt.

For the following reasons, we affirm the convictions and sentences of both defendants.

I. BACKGROUND

A. State's Case

Kenneth Maicke, an investigator for the Cook County State's Attorney's office, testified that he supervised the "Operation Hollywood" narcotics investigation on the south side of Chicago. As part of the surveillance utilized in the operation, court- ordered wiretaps were installed and monitored on various phone lines.

Alan Nakayama testified that he was the senior supervisor in the narcotics section of the Cook County State's Attorney's office. Nakayama testified that he supervised the State's Attorney's "wire room," where the phone calls were monitored during the investigation. He testified as to the chain of custody of various tapes and logs made in this surveillance. During the trial, the State presented 122 tapes of recorded conversations.

Paul Fellner, an Ameritech Corporate Security manager, identified the customer service records for Paul Campbell, defendant Nolan's husband. The records were made in the usual course of business and dealt with two specified phone numbers. The addresses listed for the phones were 12747 South Parnell and 11439 South Union. He identified defendant Powell's customer service records for a phone line which had been disconnected. He also identified the customer service records for two other specified phones.

Margaret Priester, a Cellular One employee, identified a specified phone number as being registered to defendant Powell.

Maurice Macklin testified that he was an investigator for the Cook County State's Attorney's office and was involved in "Operation Hollywood." Macklin was the undercover officer involved in the price negotiation and purchases of cocaine with the various parties involved.

Macklin testified that on April 25, 1994, at approximately 1 p.m., he went to the residence of Phyllis Odum at 11520 South Aberdeen. Macklin inquired into the cost to purchase two ounces of cocaine. Odum made a phone call and then told Macklin it would cost $2,100. Macklin told her he would need it the next day. On April 26, Macklin arrived at Odum's. Macklin saw Paul Campbell in Odum's kitchen. Campbell then left and returned 15 minutes later. Odum left the kitchen and returned carrying two clear bags of suspect cocaine. Odum told Macklin that Campbell was "the man," meaning that he was the source of the cocaine. Macklin paid her $2,100 for the purchase. After a positive field test, Macklin inventoried the drugs as evidence.

On May 5, 1994, Macklin called Odum and said he needed two ounces of cocaine. After the call, investigators surveying 12747 South Parnell, the residence of Paul Campbell and defendant Nolan, saw Campbell leave the house. Macklin arrived at Odum's and discussed the price. Campbell then arrived at Odum's and pulled a white envelope from his sleeve and handed it to Odum. Odum showed Macklin the opened envelope which contained two clear bags of suspect cocaine. After Macklin paid Odum $2,100, she took the money to Campbell. Campbell yelled out from a back bedroom that the money was straight and Macklin left. The field test performed on the purchase was positive for cocaine. The cocaine was then inventoried.

On June 8, 1994, Macklin called Odum and told her he was "coming through." While at Odum's, Macklin inquired as to the cost of a quarter kilo of cocaine. After making and receiving a phone call, Odum told Macklin the price would be $7,600. Macklin left, telling Odum he would contact her later. On June 9, Macklin talked to Campbell by phone and they agreed to a purchase to take place later that day at Odum's. Surveillance at the residence of Campbell and Nolan saw Campbell leave and he arrived at Odum's three minutes later. Campbell had a black bag which contained a brown-packaged, quarter kilo of suspect cocaine. Macklin took the package and gave Campbell the money. Campbell told Macklin to deal directly with him from that point and gave him a number where he could be reached. The package tested positive in a field test for cocaine.

On October 18, 1994, Macklin called Campbell and they met. Campbell and Macklin discussed future purchases and prices. Campbell sold Macklin an ounce of suspect cocaine for $850. Surveillance videotaped the meeting and the tape was shown to the jury.

Campbell and defendant Nolan subsequently moved residences and were now living at 11439 South Union. Surveillance was subsequently set up at that address on November 2, 1994. Wiretaps were approved on two phone lines at that address.

On November 7, 1994, Macklin again called Campbell's number to purchase a quarter kilo of cocaine. He spoke with defendant Nolan and Tanner about the purchase. Four minutes later, defendant Nolan called defendant Powell and asked if she had a quarter "key" available. Powell replied that she did. Macklin called Nolan back and she told him that the quarter kilo would cost "7 bills" and to call her when he was close to the city. Campbell called Nolan minutes later and she informed him of the order, expressing some fear about Macklin. She said he was "too anxious." Campbell told Nolan not to worry. Several phone calls took place during the next few hours between Campbell, Nolan and Powell. They discussed the price, quality and delivery of the drugs. Macklin contacted Campbell and it was decided that the two would meet at the McDonald's on 114th Street. Macklin told Campbell he wanted to do a "half and half" transaction where he would tender half the money now and the other half after Campbell returned with the drugs. Campbell called defendant Nolan to inform her of the plan. Defendant Nolan then called defendant Powell to inform her of the plan.

At approximately 8:45 that evening, Macklin arrived in the McDonald's parking lot and called Campbell. A few minutes later Campbell pulled in the lot and Macklin got into his car. Macklin gave Campbell $3,500 as agreed. Macklin exited the car and Campbell pulled out of the parking lot. Campbell met defendant Powell at a shopping center on 107th Street, where he picked up the drugs. Campbell returned to the McDonald's parking lot at 9:25 p.m. and backed into the parking space. As Macklin approached the car, Campbell noticed two surveillance officers. Officers O'Reilly and Kaysen ordered Campbell out of the car, handcuffed both Campbell and Macklin, seized a box which contained a quarter kilo of suspect cocaine from the car, and a .380 handgun from Campbell's right side pocket. The officers then, in an attempt to appear crooked, uncuffed both men and told them to be on their way. The substance field tested positive for cocaine. Campbell subsequently called defendant Nolan and told her he had been "set-up like a mother------." Nolan then called defendant Powell to check the money she had received. Powell informed her the money was "straight."

On February 22, 1995, defendant Nolan and Phyllis Odum were arrested. Nolan was taken to the 5th District police station, where Macklin processed her arrest. David O'Connor, an assistant State's Attorney, testified that he interviewed defendant Nolan after 10 p.m. on February 22nd. After reading Nolan her Miranda rights, Nolan agreed to speak with O'Connor. After approximately 30 minutes, O'Connor terminated the conversation because Nolan was providing information he knew to be false. At approximately 11:30 that same night, Nolan agreed to provide a written statement.

In the statement, Nolan said that she lived at 11439 South Union with her husband Paul Campbell, co-defendant Esther Tanner, and co-defendant Marshal Collier (her brother). Nolan admitted to being involved in the distribution of cocaine since 1990. She stated that she had attempted to obtain multiple kilos for the Gangster Disciples in the past but had failed. Nolan stated that her business operated on a smaller scale, obtaining single kilos then breaking them down and selling them in smaller pieces. Nolan admitted that people would call the house and that Campbell, Collier or Tanner would make deliveries to local restaurant parking lots. Nolan admitted to selling approximately 10 ounces of cocaine a week. Nolan also admitted that she and Campbell had been involved in the delivery of nine ounces of cocaine in November of the past year but that the police had robbed Paul. Nolan declined to reveal the names of her sources. Every page of the statement was reviewed and initialed by Nolan and O'Connor.

On March 20, 1995, defendant Powell was arrested. Clarence Travis, an investigator for the Cook County State's Attorney's office, arrested Powell and was present during her interrogation. Assistant State's Attorney (ASA) David O'Connor, who was also present, read Powell her Miranda rights. Powell agreed to speak with ASA O'Connor and Travis, and the interview lasted approximately 1 hour and 40 minutes. Prior to any questioning, Powell told ASA O'Connor that she knew what she did was illegal but she did not go around selling dope to everyone. Powell admitted her involvement in the 250-gram negotiation and sale with Campbell and Nolan from November 7, 1994. Powell admitted that she was the supplier for the 250 grams of cocaine. Powell admitted that she purchased the cocaine for $5,000, that it was going to be sold for $7,000, and that her cut would be $1,500. Powell admitted that her friends called her "Shelly" or "Michelle," which was her middle name. Powell was not willing to divulge the names of her suppliers. During the interview, O'Connor played a tape recording of a phone conversation from November 7, 1994. Powell admitted that it was her voice on the tape. Powell then requested a lawyer and questioning ceased. Powell refused to have her previous admissions memorialized.

Travis also identified Powell's voice from the tape-recorded phone conversations. He testified that her voice was unique, and four months after hearing the recordings, upon her arrest, he believed it was her voice he heard. He also testified that the night she was arrested was the only time he heard Powell speak and that neither he nor any member of the investigation ever saw Powell.

1. Wiretaps

A dial number recorder (DNR) was installed on all of the phones involved in this investigation. The DNR is an electronic device that monitors targeted telephone activity, including number, date, time and duration of incoming calls and outgoing calls. Word-for-word transcripts of the monitored phone conversations were transcribed and provided in the court's supplemental record. In addition, without reiterating the contents of each conversation that occurred, the State's brief, on pages 15 to 38, outlines each drug transaction that occurred between November 1 and November 10. The transactions involve various parties ...


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