Appeal from the Circuit Court of Cook County. 99 CR 7770 The Honorable Edward M. Fiala, Jr., Judge Presiding.
The opinion of the court was delivered by: Justice Cohen
Following a bench trial, defendant Ignacio Batrez was found legally accountable (720 ILCS 5/5-2(c) (West 1998)) for the offense of delivery of a controlled substance (cocaine) in an amount greater than 15 but less than 100 grams (720 ILCS 570/401(a)(2)(A) (West 1998)). Defendant was sentenced to six years' imprisonment. On appeal, defendant argues that he is entitled to a new trial because: (1) the trial court erred in permitting a police officer to testify as to the substance of her telephone conversation with defendant where the State failed to properly disclose the substance of that conversation to defendant prior to trial pursuant to Supreme Court Rule 412(a)(ii) (134 Ill. 2d R. 412(a)(ii)); (2) defendant was deprived of effective assistance of counsel where counsel failed to investigate the substance of the telephone conversation and such ineffectiveness rendered defendant's jury waiver invalid; and (3) the trial court erred in admitting, pursuant to the coconspirator exception to the hearsay rule, a statement made by the co-defendant. For the following reasons, we affirm.
Defendant and co-defendant Jose Pico were charged by indictment with the unlawful delivery of more than 15 but less than 100 grams of a controlled substance (cocaine) (720 ILCS 570/401(a)(ii)(A) (West 1998)). Defendant and Pico were tried separately.
At the beginning of defendant's trial, defense counsel indicated that defendant wished to waive his right to a jury trial. Upon questioning by the trial judge, defendant acknowledged both that his lawyers had explained "what a jury is" and that he understood "what a jury is." Defendant confirmed that he wished to give up his right to a jury. Defendant acknowledged his signature on the jury waiver form and stated that his lawyers had explained the waiver form to him. The trial court accepted defendant's jury waiver and the matter proceeded to a bench trial.
Officer Donna Salvage testified that on September 10, 1998, she was performing undercover work in controlled narcotics transactions as part of a team. During the afternoon of September 10, 1998, Officer Salvage telephoned defendant, whom she knew by the nickname "Nacho." Officer Salvage testified that, at the time of this telephone call "we *fn1 were on the street in a prearranged location near the area of the buy." The prosecution then asked Officer Salvage to indicate the nature of her telephone conversation with defendant. Defense counsel objected, arguing that the State had failed to disclose the substance of the telephone conversation pursuant to Supreme Court Rule 412. The State responded that "the summary of the conversation" was contained within Officer Salvage's police report, which had been disclosed to defendant prior to trial.
Officer Salvage's police report states in relevant part as follows:
"After a prearranged phone call between UCO Salvage and [defendant,] a mobile and stationary surveillance had been established in the area, this UCO then approached the area and parked her UCV at the prearranged parking lot (4713 S. Justine). UCO waited in this lot approx. 15 minutes from phone call, when UCO Salvage was met by [defendant] and [co-defendant] Pico who pulled up in a white 4 door car. UCO Salvage was approached by both offenders and asked by [defendant] 'how much coke (street term for cocaine) do you want'? [sic] UCO Salvage said, '3 oz's['] (street term for 28 grams which is an ounce of cocaine)."
The trial court overruled defendant's objection, noting:
"I have considered first of all I don't see a surprise to the defense, in that they were apprized that there had been a conversation between this witness and the defendant. And thereafter, something else was set up. I think that you would have the opportunity to interview this witness if you chose to do so. And I don't see any prejudice."
Officer Salvage then testified that "the nature of the phone conversation" with defendant was "[s]etting up a drug deal for that day." Officer Salvage testified that she asked defendant if he could "provide [her] with some cocaine." According to Officer Salvage, defendant agreed to provide the cocaine, told Officer Salvage "the amount that it would cost," and selected a time and location for the transaction. Officer Salvage then proceeded to the arranged location in her undercover vehicle. Defendant arrived at the location a short time later driving a white Chevrolet Celebrity (hereafter, the Chevrolet) with co-defendant Pico sitting in the front passenger seat. Defendant and Pico exited the Chevrolet and approached Officer Salvage. Defendant asked Officer Salvage how much cocaine she needed and she asked for three ounces (approximately 84 grams). Defendant then told Officer Salvage to "give [him] five minutes and [he would] be right back." Pico and defendant then left in the Chevrolet.
Approximately five minutes later, Pico returned alone in the white Chevrolet, parked and motioned for Officer Salvage to come to the vehicle. Officer Salvage approached and entered the Chevrolet. The prosecuting attorney asked Officer Salvage about a discussion she then had with Pico. Defense counsel objected, arguing that any statements made by Pico were inadmissible hearsay and that the State had not presented sufficient independent evidence of a conspiracy to permit admission of Pico's statement pursuant to the coconspirator exception to the hearsay rule. The trial judge overruled the objection. Officer Salvage proceeded to testify that she asked Pico, "Where the hell is [defendant]?" and Pico responded, "[H]e had shit to do, and *** I am his partner. You can deal with me." Defense counsel renewed his objection, citing People v. Deatherage, 122 Ill. App. 3d 620 (1984) as an analogous case. After reviewing Deatherage, the trial judge found that a joint venture between Pico and defendant had been established by a preponderance of the evidence and again overruled the objection.
Finally, Officer Salvage testified that Pico exited the Chevrolet, removed a black plastic bag from behind the rear driver's side hubcap, and returned to the driver's seat. Pico then removed three smaller, clear plastic bags which he tendered to Officer Salvage in exchange for $2,500 cash. Officer Salvage returned to her vehicle with the plastic bags, waited for Pico to leave, and then radioed her team that "it was a positive narcotics transaction." The three plastic bags were later inventoried at the police station.
Officer Salvage identified several photographs taken by a surveillance team that were then admitted into evidence. Officer Salvage testified that the first photograph depicted defendant and Pico in the white Chevrolet when they first arrived at the scene of the narcotics transaction. The second photograph, taken from behind, also depicted defendant and Pico in the Chevrolet. A third photograph revealed the license plate of the white Chevrolet. These photographs were not included in the record on appeal.
On cross-examination, Officer Salvage was unable to recall the telephone number she had used to call defendant to arrange the narcotics transaction and admitted that she had no documentary evidence that the call had been placed. Officer Salvage further admitted that she did not summarize the content of her telephone conversation with defendant in her written police report. After defense counsel asked if Officer Salvage had seen any surveillance photograph corroborating her testimony that defendant ...