People v. Batinich

• Decision Date: 18 April 1990
• Docket Number: No. 1-89-0939,1-89-0939
• Citation: 196 Ill.App.3d 1078,143 Ill.Dec. 678,554 N.E.2d 613
• Parties: , 143 Ill.Dec. 678 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. John BATINICH, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 613

554 N.E.2d 613

196 Ill.App.3d 1078, 143 Ill.Dec. 678

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. John BATINICH, Defendant-Appellant.

No. 1-89-0939.

Appellate Court of Illinois First District, Third Division.

April 18, 1990.

Cecil A. Partee, State's Atty., Cook County, Chicago, Renee Goldfarb, William D. Carroll and Diann L. Doppelt, of counsel, for plaintiff-appellee.

Turner and Wolff, Chicago, for defendant-appellant.

Presiding Justice CERDA delivered the opinion of the court:

Following a jury trial, the defendant, John Batinich, was convicted of committing the offense of delivery of a controlled substance (Ill.Rev.Stat.1987, ch. 56 1/2, par. 1401(a)(2)) and was sentenced to a six year term in the Department of Corrections. On appeal, the defendant contends that: (1) he was denied a fair trial when hearsay statements were made suggesting his involvement in other crimes; (2) the use of such hearsay statements implicating him in other crimes denied him his sixth amendment right to confront witnesses; (3) the trial court erred in precluding him from introducing evidence of his good reputation and character; (4) the prosecution improperly commented upon his post-arrest silence; (5) the trial court erred in giving certain jury instructions; and (6) he was not proved guilty beyond a reasonable doubt. We affirm.

On July 21, 1987, the defendant was arrested for selling eight ounces of cocaine to an undercover drug agent. The evidence reveals that on July 9, 1987, an informant advised an investigator from the Arlington Heights Police Department, Steven Livas, that the defendant was dealing in cocaine. Livas testified that he first met the informant, Jerry Lock, at the Palatine Police Department after Lock had been arrested for possession of cocaine. Lock agreed to act as an informant and was offered a deal if he supplied names of drug dealers and arranged transactions between the dealers and undercover agents. Lock supplied Livas with the defendant's name and a transaction was arranged. On July 20, investigator Livas contacted agent Steven Traub from the Drug Enforcement Administration and asked Traub if he would act as the buyer in the operation. The evidence revealed that agent Traub and Lock were similar in height, weight, and age, and both had graying hair and a mustache, and wore glasses. The seller was supposed to think that agent Traub was Lock.

On the afternoon of July 21, Traub drove to a parking lot at a Baker's Square restaurant located at Dempster and Greenwood avenues in Niles, Illinois. Shortly thereafter, the defendant drove into the parking lot and parked his car next to Traub. Traub testified that he exited his car and walked to the defendant's vehicle whereupon the defendant asked him if he was Jerry. After a brief conversation, Traub returned to his car and retrieved an envelope containing $11,000. After Traub entered the defendant's car, they left the parking lot and drove for several blocks until they arrived at an empty parking lot next to a bank only two blocks away from the restaurant. Traub testified that during the drive to the bank's parking lot, the defendant asked him if they had met before. Traub testified that he replied that they had met a year earlier when they were involved in a transaction by Martha Washington Hospital. Traub further testified that the defendant questioned him about what kind of car he used in that transaction, apparently an effort to test his buyer to ensure he was dealing with who he thought was Lock. Once inside the bank's parking lot, the defendant placed his hand under the dashboard behind the glove compartment and a grey plastic bag dropped to the floor at Traub's feet. Traub picked up the bag and opened it. Inside he discovered a cylindrical shaped object wrapped in tin foil. Traub peeled away the tin foil and found another plastic bag containing white powder. Traub testified that the defendant stated "there is eight there, there is eight there," referring to their agreement to sell eight ounces of cocaine. Traub gave a prearranged arrest signal and the officers who had been conducting surveillance effected the defendant's arrest. A chemist testified that the substance delivered to agent Traub was cocaine.

The defendant testified that he thought he was delivering jewelry as a favor for a friend. He stated that on the evening of July 20 his friend, Lou Nanoz, called him at his home three or four times to arrange the delivery. The testimony revealed that Nanoz was in the automobile business and sold jewelry on the side. The defendant, who has been employed as an auto mechanic since he immigrated to Chicago from Yugoslavia in 1972, testified that he first became acquainted with Nanoz when they worked at the same dealership in the early 1980's. The defendant testified that he was asked to meet an individual named Mike the following day. Mike contacted the defendant on July 21, and they arranged a meeting at a coffee shop next to the defendant's place of employment. After picking up a package which he was told would contain jewelry, the defendant went back to work to change his clothing. The defendant stated that he left to run some errands and then drove to meet Jerry Lock who he had never met before. The defendant further testified that he concealed the package under the dashboard because he was driving a convertible. The defendant also stated that he drove to the bank parking lot because he wanted to go to a quiet place. The defendant further admitted to advising Traub that there were "eight" in the package, but testified that he was referring to what he believed were eight pieces of jewelry: three watches, two rings and three necklaces. The defendant denied knowing Jerry Lock prior to July 21 and denied participating in any deals with him. He further testified that he never looked inside the package and that he did not look when Traub opened it in his car.

The defendant's wife testified and corroborated his testimony that Nanoz had called him several times on July 20. She also stated that she had never seen her husband in possession of drugs. Other witnesses corroborated the relationship between the defendant and Lou Nanoz and stated that Nanoz sold jewelry as a side business.

The defendant first argues that he was denied a fair trial because of statements referring to the defendant as a drug dealer and references to a prior drug deal between himself and Jerry Lock. The defendant asserts these statements were in violation of the rule against evidence of other crimes to show a defendant's propensity to engage in criminal activity. The statements defendant complains of include: (1) remarks made during the prosecution's opening statement referring to the defendant as a drug dealer and a conversation between the defendant and agent Traub regarding a prior deal; (2) testimony by the undercover agents describing the same; and (3) a question posited to the defendant during cross-examination asking about the "prior deal." The defendant additionally maintains that these statements were also inadmissible hearsay.

During the prosecution's opening statement, the prosecutor stated that after a meeting with an informant, investigator Livas "came away from that brief meeting with the name of a person" and that "the name he was given was John Batinich." That statement was made immediately after the prosecutor explained that Livas had a meeting with an informant to obtain the names of persons involved in "narcotics trafficking in the northwest suburban area." The defendant's objection to these remarks was overruled. A short time later, the prosecutor re-enacted a conversation that took place between the defendant and agent Traub when the defendant mistakenly believed that he was talking to Jerry Lock. According to the prosecution's version of that conversation, the defendant and Traub discussed a prior deal they did together. No objections were made to these opening remarks. The defendant next complains of testimony by investigator Livas that Lock divulged a name of a "mid level dealer out of the northwest." The defendant objected to the testimony as hearsay, but the trial judge overruled the objection. The defendant further complains about the testimony of agent Traub implicating the defendant in a prior deal. The following testimony was elicited:

"Q. And what if anything was said after that?

A. Then right after that he said, 'Have we met before?' And I--

Q. I am Sorry.

A. He said, Have we met before? You know, in terms of a question.

Q. All right, did you reply?

A. Yes, I did. Well, it has been a while, approximately a year. I said I was in the car. You passed by. We did that other deal by Martha Washington Hospital.

Q. All right, I see. Did he talk about that other deal any further?

A. Only to say, after I said everything I knew about that deal or alleged deal, he asked me whose car was I in. And I said, Louie's.

Q. And did he say anything after that?

A. Yes. He said, 'No, no, no.'

Q. What was said next?

A. Then I said, well, I said, it was just like the car I am in today. It is not my car. I was just using somebody's car. Then I assumed Loui was using somebody's car at the previous deal.

Q. Did the defendant say anything after that?

A. Yes. He thought about a second, and he said, 'Well, it was dark.' "

The defendant also made no objections to this line of questioning. However, the defendant did object during the prosecution's cross-examination of the defendant when the prosecutor asked: "During the time were you doing a similar deal?" The trial judge sustained the defendant's objection and instructed the jury to disregard the question.

The first facet of defendant's argument is that the aforementioned references to drug dealing and the alleged prior deal denied him a fair trial because they constituted evidence of other crimes. The defendant cites People v. Pitts (1971), 1 Ill.App.3d 120, 122, 273 N.E.2d...