People v. Abston

• Court: Appellate Court of Illinois
• Writing for the Court: GORDON
• Citation: People v. Abston, 263 Ill.App.3d 665, 635 N.E.2d 700, 200 Ill.Dec. 361 (Ill. App. 1994)
• Decision Date: 13 May 1994
• Docket Number: No. 1-91-0752,1-91-0752
• Parties: , 200 Ill.Dec. 361 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Charles ABSTON, Defendant-Appellant.

Page 700

635 N.E.2d 700

263 Ill.App.3d 665, 200 Ill.Dec. 361

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Charles ABSTON, Defendant-Appellant.

No. 1-91-0752.

Appellate Court of Illinois First District, Fifth Division.

May 13, 1994.

Michael J. Pelletier, Deputy Defender, Todd Avery Shanker, Asst. Appellate Defender, Office of the State Appellate Defender, Chicago, for appellant.

Jack O'Malley, State's Atty., Chicago (Renee Goldfarb, James E. Fitzgerald, of counsel), for appellee.

Justice GORDON delivered the opinion of the court:

Defendant was found guilty after a bench trial of delivery of a controlled substance. He was sentenced to 17 years' imprisonment to run consecutive to four and six-year sentences he received for other related delivery charges. On appeal, defendant alleges that (1) he was denied his right to a fair trial where the trial judge acted as a fact finder in a separate simultaneous bench trial of a codefendant; (2) he was denied his right to confrontation when the trial court failed to order the State to produce a confidential informant; (3) the imposition of consecutive sentences was improper; and (4) the trial judge improperly considered a factor inherent in the offense in sentencing him. For the reasons set forth below, we affirm the judgment of the trial court.

FACTS

On June 21, 1989, defendant Charles Abston was arrested with codefendant Floyd Sample and charged with delivery of a controlled substance involving one kilogram of cocaine. Defendant Abston pled guilty to two related charges of delivery of a controlled substance. Both defendants waived their right to a jury trial on the charge involving the one kilogram of cocaine. Abston properly notified the State that he intended to present a defense of entrapment.

Immediately prior to trial, the following exchange took place:

"THE COURT: Is there any objection to defendants being tried together? Any reason why they shouldn't?

[ABSTON'S ATTORNEY]: I don't know any reason at this time your Honor.

THE COURT: Well, you better know because this is the time to know.

[ABSTON'S ATTORNEY]: Yes, sir.

THE COURT: Is there any reason? If there is, you better state it now."

Abston's counsel did not respond and the court proceeded to try the two cases together.

Undercover agent John Backshis testified that at approximately 1:30 p.m. on March 13, 1989, he and an informant arrived at a parking lot where they were to meet defendant. He gave the informant $230 and instructed him to purchase an eighth of an ounce of cocaine from defendant. The informant entered defendant's vehicle, had a short conversation with defendant and then returned to Backshis' vehicle with two packets containing cocaine. Backshis could not see the exchange of money for cocaine from his vantage point.

Backshis stated that on March 17, 1989, he and the informant met defendant at the latter's place of employment. Backshis asked defendant the cost of an eighth of an ounce of cocaine and subsequently paid him $230 for that amount. After the informant asked if defendant and Backshis could deal with each other directly, defendant gave Backshis his beeper number. According to Backshis, this was the last time he saw the informant.

On March 21, 1989, Backshis directly contacted defendant and purchased an ounce of cocaine from him. Approximately two months later on May 31, 1989, Backshis again directly contacted the defendant and subsequently purchased one ounce of cocaine for $1,000.

Backshis related that on June 20, 1989, he contacted defendant again, seeking to purchase a kilogram of cocaine. Defendant replied that a kilogram would cost $21,000. Backshis met with defendant and his supplier that night, but no transaction was ever consummated because contrary to the supplier's insistence, Backshis refused to turn over the money first and then wait for delivery of the cocaine. Backshis told defendant to call him if he could arrange another deal for the cocaine.

Backshis' testified that defendant contacted him the next day and told him that he had a kilogram of cocaine to sell for $21,000. Backshis and defendant met outside of defendant's place of employment. Defendant told Backshis that the kilogram of cocaine was in a car in the parking lot and that he wanted to consummate the deal on a side street adjacent to his place of employment.

Backshis said that defendant went back inside his place of employment and then reemerged with defendant Floyd Sample. Defendant nodded to Backshis, pointed to defendant Sample and then began to walk towards the end of the parking lot. Sample then entered the car which defendant had indicated contained the cocaine, removed a brown bag and handed it to Backshis. Backshis examined the package and, after determining that it contained cocaine, signaled to other officers to arrest defendant and Sample.

On cross-examination, Backshis testified that he had not seen the informant since the second buy and was not aware of his current whereabouts. Backshis stated that he was unaware whether the informant had a criminal background. Backshis confirmed that defendant was not charged with either of the buys in which the informant was involved. He acknowledged that he had several phone conversations with defendant between May 31 and June 20th. Backshis denied that defendant ever refused to sell him a kilogram of cocaine.

Backshis' account of the events of the arrest itself were corroborated by fellow agent Mark McNabney. The State then rested. At the close of the State's case, both defense counsels moved for a directed finding of not guilty which was denied. Abston's counsel then moved for the court to order the State to produce the informant. The trial court denied this request, stating that the informant was only involved in transactions which occurred several months before the one with which defendant was charged.

After the State rested, but before either defendant put on his defense, Abston's counsel made a motion for severance on the grounds that defendant Sample's testimony would be prejudicial to his client. This motion was granted by the trial judge. Defendant Sample's counsel then put on his case in chief. After defendant Sample rested, the trial court stated that because it granted a severance, it intended to hear closing arguments in Sample before it would hear defendant Abston's case. After arguments were concluded in Sample's case, the trial court found defendant Sample guilty of delivery of a controlled substance. In explaining its holding, the trial court stated that it found Backshis to be a credible witness and that it did not believe the testimony of defendant Sample.

Defendant Abston then proceeded with his defense. He testified on his own behalf that he met the informant in a bar in February 1989. According to Abston, the informant asked him to act as a middleman in a cocaine buy "so [the informant] could charge [the buyer] more money." Abston stated that he initially refused, but eventually relented to act as a middleman shortly before the March 13, 1989, meeting. Abston said he received $30 from the informant for delivering the informant's cocaine to Backshis.

Abston stated that this same pattern was followed at the March 17, 1989, meeting. He gave Backshis his beeper number at that meeting only because he thought the informant wished it. Abston said that he next met Backshis alone, but gave him the informant's cocaine. The same was true with respect to the events of May 31, 1989, when Abston sold an ounce of the informant's cocaine to Backshis.

Abston said that he received repeated calls from Backshis between May 31 and June 20 regarding the purchase of larger amounts of drugs. Although he initially refused the repeated requests of Backshis for a kilogram of cocaine and the repeated requests of the informant to deliver such cocaine, Abston subsequently attempted to set up the sale of a kilogram of cocaine to Backshis on June 20, 1989. Abston stated that the June 20, 1989, sale fell through when Backshis refused to pay in advance for the cocaine.

Abston testified that the June 21, 1989, meeting which resulted in his arrest was set up by a phone call from the informant. Abston stated that defendant Sample came to his place of employment and told him that he had been sent by the informant and that the sale would be transacted in the parking lot. On cross-examination, Abston admitted that he was convicted of possession of cocaine in 1987.

The trial court found that the evidence established beyond a reasonable doubt that defendant was not entrapped and that he was guilty of delivery of a controlled substance. At the sentencing hearing, defendant presented no evidence in mitigation. Defense counsel did, however, bring to the court's attention several mitigating factors contained in the pre-sentencing report including: defendant's family ties, his employment history, and that he went to college for two years. In aggravation the State presented defendant's prior conviction for possession of a controlled substance.

The trial court sentenced defendant to concurrent terms of four and six years on the two counts to which defendant pled guilty. The trial court then imposed a 17-year sentence on the charge involving the kilogram of cocaine for which defendant stood trial. The 17-year sentence was to run consecutive to the concurrent four and six year terms defendant Abston received on the other charges. In so doing the court stated that it was relying on facts in the pre-sentencing report and those adduced in mitigation and aggravation. The court said that "I don't mind telling you this is a serious crime. A large amount of drugs were involved here, and I noted your prior conviction. Prior criminal delinquency. It appears in the pre-sentence investigation report." The trial court also said that it was aware that consecutive sentences were not mandatory in this instance. Defendant now appeals his conviction and...