Circuit Court of Cook County. 94 CR 16717 The Honorable Marcus R. Salone, Judge Presiding.
The opinion of the court was delivered by: Justice Cerda
Following a jury trial, defendants, Wayne Edwards, Ayodele Fayaode, Afolobi Animashawn, and Andre Nelson, were found guilty of criminal drug conspiracy. Edwards, Fayaode and Nelson were sentenced to 30 years in prison, while Animashawn received a prison sentence of 25 years. On appeal, defendants contend that their indictment was duplicitous and that the nonconsensual eavesdropping orders granted by the trial court were unconstitutional. Edwards, Fayaode and Animashawn further contend that the State did not prove all of the elements of conspiracy listed in the indictment, that their sentences were excessive, and that the trial court erred in not issuing proper jury instructions and in permitting the introduction of non-expert testimony. Nelson alone argues that the trial court erroneously allowed the introduction of a prejudicial videotape, and that his mittimus is incorrect. Edwards appeals the dismissal of his post-conviction petition. Several of these issues are discussed in the nonpublishable portion of this opinion.
Defendants and 15 other co-defendants were charged with multiple counts of criminal drug conspiracy under indictment number 94 CR 16717. The indictment arose from an investigation into drug sales by the Black Souls street gang on the west side of Chicago. The investigation was conducted by the Drug Enforcement Agency, the Internal Revenue Service and the Chicago Police Department. It included visual surveillance in the area of Walnut Street and Homan Avenue, and visual and telephone surveillance of a residence located at 1346 N. Kildare Avenue.
In March 1993, the police were granted two court orders allowing the use of pen registers and caller identification trap and trace devices. The devices were to display numbers dialed to and from a telephone located at the Kildare residence, which was registered to Crystal Bennett, and a cellular telephone registered to German Forero. Each order was for a period of 60 days and was subsequently extended for additional 60-day periods.
In July 1993, the State's Attorney's office authorized three applications consensual eavesdropping devices. The authoriza-tions were signed by the Deputy State's Attorney, an assistant State's Attorney, and the chief of the narcotics bureau.
In September and October 1993, the police obtained two more court orders for the use of pen registers and trap and trace devices on a telephone located at Edwards' apartment on Sheridan Road and a second telephone number registered to Crystal Bennett at the Kildare house. These orders were also for 60-day periods.
On November 12, 1993, the trial court entered two nonconsensual electronic surveillance orders, allowing the interception of telephone calls made to and from the Kildare residence and to and from the cellular telephone listed to German Forero. The orders were each for a period of 30 days, and the State's Attorney's office was required to submit progress reports to the court every 10 days while conducting the eavesdropping.
In December of the same year, the trial court entered a court order allowing the use of a pen register for 60 days on a second cellular telephone registered to German Forero. The court subsequently entered a nonconsensual electronic surveillance order for that cellular telephone. Pursuant to these orders, the Chicago police recorded over 1,000 telephone calls.
On June 6, 1994, a grand jury returned a multicount indictment against defendants. Count I, for criminal drug conspiracy, alleged that defendants conspired to commit the offenses of: (1) possession with the intent to deliver and delivery of 400 grams or more but less than 900 grams of a substance containing heroin; (2) possession with the intent to deliver and delivery of 15 grams or more but less than 100 grams of a substance containing heroin; (3) delivery of 10 grams or more but less than 15 grams of a substance containing heroin; and (4) delivery of less than 10 grams of a substance containing heroin. The only other count of the indictment relevant to this appeal is count VIII, which alleged that defendants Fayaode and Animashawn committed the offense of possession with intent to deliver 400 grams or more but less than 900 grams of a substance containing heroin.
The indictment specifically alleged that Edwards organized and supervised the wholesale and street-level retail distribution of heroin for the Black Souls street gang. Edwards allegedly employed workers who arranged meetings with customers seeking to purchase heroin, and he oversaw the procurement, cutting, packaging and distribution of the heroin. One of the workers who reported to Edwards was Nelson. Nelson allegedly conducted the activities of the narcotic organization out of the Kildare residence. Edwards and Nelson procured the heroin from suppliers, two of whom were Fayaode and Animashawn. Count I alleged numerous acts the various defendants committed in furtherance of the conspiracy.
A trial was held with two juries, one jury for defendant Nelson and a second for the other defendants appealing in this consolidated case. At trial, Chicago police officer Sal Colello testified that, as part of the investigation, he regularly drove through the area of Walnut Street and Homan Avenue to observe patterns of activity. He testified that numerous people gathered in the street in the area. He observed people acting as "lookouts" by announcing the arrival of police, and others acting as "security," ensuring that drug sales ran smoothly. Colello also saw people standing in line to purchase tinfoil packets of heroin and witnessed hand-to-hand sales of the tinfoil packets. On October 14, 1993, Colello videotaped the narcotic sales activity in the Walnut-Homan area. The videotapes were published to the jury and were described by Officer Colello.
Miguel Mendez, a cellular telephone salesman, testified that he programmed two cellular telephones for Fayaode. Fayaode paid Mendez to put the contracts in the name of Mendez's nephew, German Forero. The telephone bills would be delivered to Forero's address, but Fayaode would pay the bills in cash. The telephones were activated in December 1992 and June 1993. Mendez also sold a cellular telephone to Animashawn in Animashawn's own name.
Chicago police officer Lee Bielecki testified that he had been a police officer for 12 years. For the past five years he had been assigned to the narcotics section of the Chicago Police Department. For the seven years before that, he had been assigned to the 11th district, which included the Walnut-Homan area. Officer Bielecki stated that he was a patrol officer, and later, a tactical officer in the 11th district. He had been involved in several major and mid-level narcotic investigations, and over 1,000 street-level investigations during his career. Over 100 of the street-level investigations specifically involved cocaine and heroin.
Following additional testimony about his experience in the Walnut-Homan area, the court qualified Officer Bielecki as an expert in the field of narcotics law enforcement, particularly with regard to drug trafficking in the Walnut-Homan area.
Officer Bielecki testified that he monitored the pen registers used in this case. In July and August of 1993, undercover officers making heroin purchases used cellular telephones to call co-defendant Darryl Edwards' cellular telephone. The pen register showed corresponding calls between the officers and Darryl Edwards and between Darryl and the telephone at the Kildare residence. Hundreds of telephone calls were made to and from the Kildare residence on a daily basis. From the spring of 1993 to October 1993, police registered more than a few thousand calls.
The State published 124 audiotapes. Each contained an intercepted telephone call by one or more of the co-defendants. The jury reviewed transcripts of the conversations while the audiotapes were played. Officer Bielecki testified that he determined the identities of the speakers on the audiotapes from the context of the conversations, the identification of the speaker by himself or another speaker, and his own familiarity with the voices. Prior to listening to the wiretaps, Bielecki had spoken with Nelson 50 to 75 times and with Edwards over 100 times. He heard Fayaode's voice for the first time during the wiretapping, but testified Fayaode's voice was distinctive due to his accent. The officer had never spoken to Animashawn, but had overheard his voice at the police station.
Officer Bielecki interpreted the terminology used in some of the recorded conversations. The officer testified that the conversations included: (1) Edwards speaking about the sale of 200 grams of heroin and stating that he would not pay the supplier until the drugs were sold; (2) Nelson speaking about "licks" (600 packets of heroin) and stating that they should have gotten 9 or 10 licks out of 200 grams; (3) Nelson discussing the mixing of heroin with other substances; (4) Nelson and Fayaode discussing $50,000 owed to Fayaode, and Nelson's request for 200 grams of heroin; (5) Edwards discussing a meeting concerning the sale of 100 grams of heroin; (6) Nelson being asked why certain heroin was not mixed with other substances prior to sale; (7) Fayaode telling Nelson he wanted to bring 400 grams, not just 300 grams; (8) someone telling Nelson that he sold half his lick; (9) someone telling Nelson that he had already collected $2,400 from the lick he was selling; (10) Nelson telling someone he did not need to purchase any drugs at that time; (11) Nelson discussing drug deliveries made by Fayaode and stating that they would give all the Walnut-Homan salesmen fresh licks to sell; (12) someone telling Nelson he was going to mix heroin with another substance; (13) Nelson and Fayaode discussing the delivery of 500 grams of heroin; (14) Animashawn stating that if he got the heroin cheaper from his supplier, he would sell it for a lower price; (15) Nelson discussing the fact that the police had the Kildare residence under surveillance; and (16) Nelson telling someone to clean up evidence of drug paraphernalia in the house.
Chicago police officer Maurice Barnes testified that on October 14, 1993, he made an undercover narcotic purchase in the Walnut-Homan area. He purchased two tinfoil packets for $20 from Black Soul member David Robinson. Robinson was arrested, and the packets were found to contain .14 gram of heroin.
On November 16, 1993, the police intercepted a telephone conversation between co-defendants Tommiwa Kolly and Darryl Edwards, during which they discussed the delivery of 500 grams of heroin. Chicago police officer Jude Evans testified that, on that same date, he was assigned to stop a car seen leaving the Kildare residence and identify the driver. Evans stopped the car for a traffic violation and the driver, Tommiwa Kolly, provided him with an Illinois identification card. Evans saw large sums of money on the floor of the car. Kolly told Evans the money "must be" John's, the owner of the car, but he did not know John's last name or address. The money was impounded, and Evans told Kolly he would have to follow him to the police station to obtain a receipt. On the way to the station, Evans saw Kolly using his cellular telephone. Once at the station, Kolly drove through the parking lot and left. He did not return for the receipt or the money.
On November 17, 1993, the police recorded a telephone conversation between Fayaode and Nelson, who was using the telephone at the Kildare residence. Nelson told Fayaode to come pick up some money. Fayaode said he would tell "Tony" to do it. Surveillance established that Animashawn arrived at the Kildare residence shortly after the conversation. Animashawn entered the residence and soon departed carrying a paper bag. Surveillance officers saw Animashawn and Fayaode drive to Fayaode's 211 East Ohio Street residence. Fayaode took the paper bag inside.
Officer Barnes testified that on November 23, 1993, he detained a car driven by co-defendants Terrell Freeman and Vincent Reed. Barnes found a large plastic bag of tinfoil packets hidden in a side panel of the car. Freeman and Reed were not arrested, but the bag was confiscated. The substance in the bag weighed 41.6 grams and contained heroin. Barnes testified that the police stopped the car to generate conversation on the wiretaps.
Officer Bielecki testified that the police intercepted a number of telephone conversations connecting Freeman to the conspiracy, including: (1) co-defendant Bryant Boyd telling Freeman to come to Kildare to get a lick; (2) Freeman telling Boyd the police took the lick; (3) Nelson and Boyd talking about the lick taken from Freeman; and (4) Freeman talking to Edwards about being stopped by the police.
Chicago police officer James Spratte testified that on November 24, 1993, he stopped a car occupied by Fayaode and Animashawn. Spratte searched the car and seized a shoe box containing 497.96 grams of heroin. A telephone conversation was later intercepted in which Nelson and co-defendant Darryl Edwards discussed Fayaode's arrest while in possession of 500 grams of heroin. Another conversation was intercepted in which Nelson discussed Fayaode's bail. Someone subsequently provided $40,000 in cash for Fayaode and Animashawn's bond. A narcotics-sniffing dog alerted on the drawers containing the cash.
Officer Spratte further testified that on December 1, 1993, he arrested co-defendant Remmy Baker on an outstanding warrant. He followed Baker from the Kildare residence and seized $3,000 and 73.87 grams of heroin from his car. A telephone conversation had been intercepted that same day during which Baker told Darryl Edwards he was bringing some heroin to the Kildare house.
On December 9, 1993, Chicago police officers Betty Coleman and Sharon Wise made an undercover purchase of a tinfoil packet in Walnut-Homan area. The seller was arrested and identified as Moise Stamps. There was no testimony that Stamps was a Black Souls member. The packet weighed .07 gram and contained heroin.
In December 1993, Nelson and Edwards were arrested by the Chicago police. The Internal Revenue Service searched their residences. Items seized from Edwards' home included a Mercedes Benz automobile, $6,890 in a paper bag, $680 in a closet, $13,848 in a shoe box, numerous items of jewelry, a cellular telephone, a piece of paper displaying Fayaode's pager number, a traffic ticket belonging to Nelson, photo albums, and a telephone tap detection device. Among the items seized from Nelson's home were jewelry, cellular ...