People v. Cooper

Decision Date30 December 1992
Docket NumberNo. 5-91-0729,5-91-0729
Citation606 N.E.2d 705,179 Ill.Dec. 873,239 Ill.App.3d 336
Parties, 179 Ill.Dec. 873 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Daniel COOPER, Defendant-Appellant.
CourtUnited States Appellate Court of Illinois

Daniel M. Kirwan, Deputy Defender, Lawrence J. O'Neill, Asst. Defender, Office of the State Appellate Defender, Mt. Vernon, for defendant-appellant.

Paula Phillips, State's Atty., Effingham, Norbert J. Goetten, Director, Stephen E. Norris, Deputy Director, Diane L. Campbell, Staff Atty., Office of the State's Attys. Appellate Prosecutor, Mt. Vernon, for plaintiff-appellee.

Justice WELCH delivered the opinion of the court:

Defendant, Daniel Cooper, was charged by information filed January 17, 1991, in the circuit court of Effingham County with the offenses of: (count I) cannabis trafficking in that he knowingly caused to be brought into the State for the purpose of delivery, and arranged for the purchase of, more than 2,500 grams of cannabis, knowing that the cannabis would be brought from the State of Texas to be delivered to him; (count II) unlawful possession with intent to deliver cannabis in that he knowingly and unlawfully possessed with intent to deliver more than 500 grams of a substance containing cannabis; (count III) unlawful possession of cannabis in that he knowingly and unlawfully had in his possession more than 500 grams of a substance containing cannabis; (count IV) unlawful possession of cannabis without cannabis tax stamp in that, being a dealer in cannabis, he knowingly and unlawfully possessed cannabis without paying the appropriate tax and without affixing the official tax stamp to that cannabis; (count V) conspiracy to commit cannabis trafficking; and (count VI) armed violence in that, while armed with a dangerous weapon, a pistol, he knowingly possessed with the intent to deliver more than 500 grams of cannabis. All of the offenses were alleged to have occurred on January 16, 1991.

Following a jury trial in the circuit court of Effingham County, held June 3-5, 1991, defendant was found guilty of counts II through VI. Defendant was found not guilty of count I, cannabis trafficking. Judgment was entered on the guilty verdicts on July 12, 1991, and defendant was sentenced as follows: (count II) seven years' imprisonment; (count III) no judgment entered; (count IV) three years' imprisonment; (count V) three years' imprisonment; and (count VI) 10 years' imprisonment. The terms of imprisonment on counts II, IV and V were to run concurrently with each other but consecutively to the term of imprisonment on count VI. Defendant was further ordered to pay a fine and court costs. Defendant was given credit for 64 days spent in custody as a result of the offenses on which he was sentenced.

Defendant appeals his convictions and sentences, raising the following issues: (1) whether the trial court committed reversible error in refusing defendant's tendered instruction on the defense of entrapment (2) whether the defendant's conviction for unlawful possession with intent to deliver cannabis must be vacated because it is based on the same physical act of possession that underlies defendant's conviction for armed violence; (3) whether the defendant's conviction for conspiracy (cannabis trafficking) must be vacated because Wharton's Rule precludes prosecution for conspiracy to commit an offense when the underlying substantive offense requires more than one actor for its commission; (4) whether the defendant's conviction for unlawful possession of cannabis must be vacated as it constitutes an incomplete judgment; (5) whether the trial court erred in imposing a consecutive sentence since the offenses of which defendant was convicted were part of a single course of conduct during which there was no substantial change in the nature of the defendant's criminal objective and there was no sufficient showing that a consecutive sentence was required to protect the public from further criminal conduct by defendant; (6) whether the defendant's sentence is excessive because it is disparate to the sentence of the co-defendant, the defendant had no prior criminal record and the trial court considered an improper factor in sentencing; and (7) whether the defendant is entitled to credit toward his fine for the 64 days he spent in custody prior to sentencing.

The following evidence was adduced at defendant's jury trial. Illinois State police officer Brad Voyles testified that he was on routine patrol on January 15, 1991, when he stopped and searched a vehicle occupied by Julian Arevalo, Donald Langston and Daniel Gaudette. He discovered in the vehicle approximately 48 pounds of cannabis.

Shortly thereafter, Voyles worked a surveillance detail near a Best Inns of America in Effingham watching for a silver GMC van with an Ohio license plate. At approximately 2:00 on the morning of January 16, 1991, Voyles observed this vehicle pull into the parking lot of the Best Inns of America, circle the motel once and drive away. At approximately 12:30 the next afternoon, Voyles observed the vehicle again enter the parking lot of the Best Inns and park in front of the motel. The driver of the vehicle exited the vehicle, went upstairs in the motel, then returned and moved the vehicle to the back of the motel. The driver again exited the vehicle and went upstairs to a motel room. It was approximately 12:45 p.m. The driver of the vehicle was the defendant.

Forty-five minutes later Voyles observed the defendant exit the motel and come down the stairs at the back of the building. At that time, defendant was arrested. At the time of his arrest, defendant was carrying a steel Colt .45-caliber weapon in his left coat pocket. The gun was loaded and cocked. Defendant was also carrying a small bag.

On cross-examination, Voyles testified that he arrested all three of the occupants of the vehicle he stopped, which was carrying 48 pounds of cannabis. Defendant was not one of these three men. Eleven packages of the cannabis seized from the vehicle were given to Investigator Geurin of the State Police Division of Criminal Investigation. These 11 packages weighed approximately 10 pounds. Investigator Geurin told Voyles what vehicle to watch for in the surveillance detail. Voyles never saw defendant brandishing the weapon he was carrying when arrested.

Mark Paiva was called to testify for the State. He is employed by the Illinois State Police crime laboratory as a forensic scientist in the chemistry section. He specializes in identifying and analyzing controlled substances and cannabis. After having been qualified as an expert witness in the analysis and identification of controlled substances and cannabis, Paiva testified that he analyzed a substance found in bags which were inside a suitcase and identified the substance as over 500 grams of cannabis. The gross weight of the all the bags containing cannabis was 5400 grams. Paiva eventually delivered the suitcase and its contents to sergeant Steve Poe.

Michael C. Geurin with the Illinois State Police, Division of Criminal Investigation, testified that he is assigned to the undercover narcotics squad. He also serves as evidence custodian at the State police zone headquarters in Effingham. As such, he is responsible for logging in and out of the vault all evidence and for maintaining a record of chain of custody of all evidence. There are two other evidence custodians.

Geurin participated in the investigation and arrest of defendant. Geurin became involved in that investigation on January 15, 1991, when three individuals were arrested for transporting cannabis in their car. Those individuals were Daniel Gaudette, Donald Langston and Julian Arevalo. Geurin made arrangements with Gaudette to try to persuade defendant to come to Effingham County. The surveillance unit was set up. Geurin also set up a monitoring unit in a room adjoining room 228 of the Best Inns in Effingham. Room 228 was monitored electronically through a closed circuit television which also videotaped the activity in room 228. After observing the transaction which occurred in room 228, Geurin directed the surveillance officers to arrest defendant when he exited the motel. As defendant was arrested, Geurin entered room 228 and received $5,000 from Daniel Gaudette. Recovered from defendant upon his arrest was $534 in cash.

Geurin identified a cassette tape recording of telephone conversations which occurred on January 16, 1991. He also identified the gun which was taken from defendant upon his arrest. Geurin also identified the suitcase which Paiva had previously testified contained 5400 grams of cannabis.

On cross-examination, Geurin testified that Donald Langston and Daniel Gaudette, two of the individuals who were arrested by Trooper Voyles, also participated in the investigation of defendant. Geurin first met with Langston and Gaudette at State police headquarters in Effingham on January 15, 1991. Gaudette agreed to contact defendant at Geurin's suggestion. Geurin told Gaudette only that, if the investigation was successful, Geurin would make the State's Attorney aware of the help which Gaudette had provided. Geurin made no other promises to Gaudette, and Gaudette was, in fact, under arrest. Geurin was present when Gaudette contacted defendant by telephone on the afternoon of January 15, 1991. The initial conversation and two others between Gaudette and defendant were not recorded, and Geurin could not hear defendant's side of the conversation. All of the nonrecorded conversations were initiated by Gaudette. Additional telephone conversations between Gaudette and defendant occurred on the evening of January 15, 1991. These conversations were recorded.

In one of the first three unrecorded conversations, Gaudette asked defendant to come to Illinois because Gaudette's vehicle had broken down, Gaudette had the packages defendant was waiting for and if defendant wanted them he would...

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