People v. Craddock

• Court: Appellate Court of Illinois
• Writing for the Court: McCULLOUGH
• Citation: People v. Craddock, 516 N.E.2d 1357, 163 Ill.App.3d 1039 (Ill. App. 1987)
• Decision Date: 10 December 1987
• Docket Number: No. 4-86-0762,4-86-0762
• Parties: , 115 Ill.Dec. 1 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. William CRADDOCK, Defendant-Appellant.

Page 1357

516 N.E.2d 1357

163 Ill.App.3d 1039, 115 Ill.Dec. 1

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. William CRADDOCK, Defendant-Appellant.

No. 4-86-0762.

Appellate Court of Illinois Fourth District.

Dec. 10, 1987.

Daniel D. Yuhas, Deputy Defender, Office of State Appellate Defender, Springfield, John J. Hanlon, Asst. Defender, for defendant-appellant.

Tim P. Olson, State's Atty. Jacksonville, Kenneth R. Boyle, Director, State's Attys. Appellate Pros., Springfield, Robert J. Biderman, Deputy Director, Linda Cullom, Staff Atty., for plaintiff-appellee.

Justice McCULLOUGH delivered the opinion of the court:

After a jury trial, defendant was convicted of unlawful delivery of a controlled substance (cocaine) and armed violence based upon the unlawful delivery of a controlled substance. (Ill.Rev.Stat.1985, ch. 56 1/2, par. 1401(a)(2); ch. 38, par. 33A-2.) Subsequently, the trial court sentenced defendant to 12 years' incarceration, imposed a street-value fine of $48,000, and a county fine of $7,000 on the unlawful delivery conviction. The trial court sentenced defendant to a concurrent term of 15 years' incarceration on the armed violence conviction.

Defendant appeals arguing: (1) the trial court coerced the jury's verdict by tendering a premature Prim (People v. Prim (1972), 53 Ill.2d 62, 71-72, 289 N.E.2d 601, 607, cert. denied (1973), 412 U.S. 918, 93 S.Ct. 2731, 37 L.Ed.2d 144) instruction and inquiring into its numerical division; (2) the prosecutor's questioning and closing argument were impermissible comments on defendant's post-arrest silence; (3) the unlawful delivery of a controlled substance conviction must be vacated; (4) the trial court erred in considering the presence of a weapon as an aggravating factor; and (5) defendant's sentence is grossly disparate to that of his codefendant.

We affirm the conviction and sentence for armed violence and vacate the conviction and sentence for unlawful delivery of a controlled substance.

Gerald Kempf, an undercover agent, testified that on February 2, 1984, he contacted a Pat Ryan by telephone to set up the purchase of cocaine. Ryan agreed to sell cocaine which was 80 to 85% pure at $2,000 an ounce. On February 6, Kempf again talked to Ryan but told Ryan he was running a few thousand dollars short of the purchase price. He asked if Ryan had the package and Ryan responded that he did. Kempf called Ryan again on February 9. They set up a meeting for the following day. Ryan told Kempf the package was ready and asked Kempf to call Ryan when he got into town. Kempf had ordered one and one-half pounds of cocaine.

On February 10, 1984, Kempf and Ryan met at a restaurant. Kempf testified that he saw Ryan arrive in a small blue Honda. Someone was sitting in the back, passenger side seat of the Honda. No one else was in the car. While in the restaurant, Kempf and Ryan referred to the cocaine as diamonds because they were in a crowded area. Ryan asked Kempf to follow him. Kempf followed the vehicle to a shopping mall. Kempf asked if the person in the car was all right. Ryan responded he was. Ryan got out of the vehicle and removed a paper sack from its trunk. Kempf entered the vehicle on the passenger side and sat with his back to the windshield. He was facing defendant.

Kempf introduced himself to defendant, who removed his right hand from his coat pocket and shook hands. Defendant was two to three feet away. He stated his name was Bill but did not otherwise speak. Ryan placed the paper sack between the bucket seats of the vehicle on the console. Kempf opened it, removed a cardboard box, turned it over, and opened it. Inside was a plastic bag containing a white powder. Kempf simulated tasting it and asked Ryan if it was the same cocaine as was contained in the sample. Ryan responded it was. Kempf told Ryan he would take the cocaine. They talked while in the car about whether he could make additional purchases of cocaine. Kempf arrested defendant and Ryan when they started to leave.

Michael Cravens, a forensic scientist, testified that the substance weighed one and one-half pounds and tested positive for cocaine. He also tested the bowl of a spoon which was submitted for analysis. Cocaine residue was found in it.

Terry Wubker, an investigator with the Illinois Division of Criminal Investigations, testified that he observed defendant in the rear passenger seat of the Honda. He maintained a surveillance on the car until the signal to arrest its occupants. Kempf had Ryan in a search position when Wubker arrived. However, Wubker assisted in defendant's arrest. As Wubker searched defendant, he asked if defendant was carrying any weapons. Defendant responded that he was. Wubker removed a loaded .357 Magnum revolver from defendant's pocket. He also removed a small Derringer from the same pocket. The Derringer was loaded with hollow-point bullets, which explode on impact.

Wubker further testified that after he placed defendant in the squad car, defendant said this was what you got when you did a man a favor. Wubker read defendant's Miranda rights to him. Subsequently, defendant repeated this statement. Then, defendant said that they had talked about this and they had decided not to do it. He hoped that the transaction was on tape because it would show that he had nothing to do with it. The police would not find his fingerprints on anything. He then stated that he had tried to talk Ryan out of it. However, Ryan was afraid of being killed. Therefore, he came along for protection. At the jail, defendant asked Wubker why he had been handcuffed with his hands behind his back while Ryan had been handcuffed with his hands in front of him. He asked if Ryan had set him up to take the "fall." Wubker responded that he did not know.

Wubker further testified that defendant was concerned about the arrest. While Wubker was taking a history from him, defendant again stated that he hoped the transaction was on tape, his fingerprints were not on anything, and he hoped Ryan had not set him up because he was doing Ryan a favor. Defendant said he had let Ryan use his basement and the original wrappers for the "stuff" were in his boiler room. He suggested that the police promptly search the basement in order to recover the wrappers. Defendant also stated that Ryan wanted to use his scale. Defendant voluntarily agreed to a search.

Wubker stated that he participated in a search of defendant's home. He observed a large cardboard box with a large garbage bag in it. Inside were a brown sack, two plastic bags, and a box which had been cut open. All of the items appeared to be contaminated with a white powdery substance.

Officer Rick Avart, a member of the Illinois Division of Criminal Investigations, testified that in searching the basement, he found a pair of rubber gloves in the trash. He also located a scale which appeared to have a powdery residue on the pad. A spoon next to the scale also had a powdery residue on it.

Defendant testified that he and Ryan had been friends since high school. Defendant dealt in precious metals. The scale was used to weigh the metals. A few months prior to the arrest, he had consigned to Ryan a 17-carat diamond ring. Ryan stated that he knew a person who would buy the ring for $20,000. However, the ring disappeared. Ryan "ran him around" about the ring for some months. On February 10, Ryan came to defendant's house at approximately 9:30 a.m. and said he needed a safe telephone to make some phone calls in order to get the ring back. Defendant gave him the key to the storage room. Defendant stated he had no idea that Ryan was going to use his scale. He assumed there needed to be arrangements to call someone in Canada. He and John Kolberer were cleaning the yard. After a few moments he became nervous, and went into the basement. He saw Ryan put what appeared to be a white powder into a gym bag. He then asked Ryan what he was doing. Ryan responded that he had to do a deal in order to expedite business. Defendant stated he tried to talk Ryan out of the project and asked him to take his materials and leave. Ryan did so.

At approximately 2:30 p.m., Ryan returned telling defendant that he thought he could get the ring back. However, he was afraid to go by himself. Defendant believed he and Ryan were going to see people who had the ring in their possession. Ryan and he did not discuss cocaine. He realized that the situation was bad when Ryan walked back to the trunk and got a package out of the car. However, he did not learn there was cocaine until the arrest. He denied seeing the package other than outside of the vehicle. He stated that Kempf and Ryan held it low. He never actually saw the cocaine, and was in shock when he realized that something illegal was going on.

Defendant further stated that he had carried a gun since 1979. He needed the protection in connection with his business and had been threatened earlier that year. On cross-examination, defendant's testimony was impeached by prior testimony. The prosecutor's last question to defendant was whether he said anything at the time of the arrest about the transaction being over his ring to Wubker. Defendant responded that he didn't remember mentioning diamonds to Officer Wubker. Defense counsel did not object to this question.

The jury retired at 4:03 p.m. The record does not show whether the jury took a break for dinner. At approximately 9 p.m., the court recalled the jury and questioned its foreman. He asked the foreman to tell him what the latest vote was without indicating who it favored. The foreman responded that it had been 11 to 1. The court then asked how long the jury had been in that position. The foreman responded for approximately one hour. The court then asked whether there was any chance of progress within the next two hours. The foreman stated that he was not certain. The foreman stated he believed the jury was getting "a little weary" that evening. The...