People v. Loferski

• Decision Date: 17 September 1992
• Docket Number: No. 1-90-0663,1-90-0663
• Parties: , 176 Ill.Dec. 437 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Eric M. LOFERSKI, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1135

601 N.E.2d 1135

235 Ill.App.3d 675, 176 Ill.Dec. 437

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Eric M. LOFERSKI, Defendant-Appellant.

No. 1-90-0663.

Appellate Court of Illinois First District, Fourth Division.

Sept. 17, 1992.

Office of the State Appellate Defender, Chicago, Michael J. Pelletier and Martin Carlson, of counsel, Winston & Strawn, Timothy P. O'Connor, of counsel, for defendant-appellant.

Jack O'Malley, State's Atty., Chicago, Renee Goldfarb, David Stabrawa and Steven M. Mondry, Asst. State's Attys., of counsel, for plaintiff-appellee.

Justice LINN delivered the opinion of the court:

Defendant, Eric Loferski, was convicted of delivering more than 15 grams of a controlled substance (Ill.Rev.Stat.1987, ch. 56 1/2, par. 1401(a)(2)) following a jury trial in the circuit court of Cook County. Defendant was sentenced to the penitentiary for a term of seven years.

Defendant appeals, contending: (1) the State failed to prove his guilt beyond a reasonable doubt. Defendant also contends he was denied a fair trial because (2) the trial judge erroneously admitted into evidence (a) a photograph of defendant taken on the night of his arrest, and (b) certain hearsay statements; and (3) the prosecutor made improper and prejudicial remarks during closing argument. Defendant lastly contends (4) his sentence was excessive.

We affirm the judgment of the trial court.

Background

The record contains the following pertinent facts. On June 13, 1988, defendant and James Krask were jointly indicted on one count of delivery of more than 15 grams of a controlled substance. Prior to trial, Krask pled guilty and was sentenced to 10 years in the penitentiary.

Defendant's trial began on January 10, 1990. The State's first witness was Agent Joseph Errico. Agent Errico was a member of the Cook County Sheriff's Police on assignment to the Northeastern Metropolitan Enforcement Group. The group is composed of state, county, and local police. Its purpose is to make undercover purchases of narcotics.

Agent Errico testified essentially as follows. On April 19, 1988, an informant introduced Errico to James Krask, who sold a gram of cocaine to Errico for $80. Approximately two hours later, Krask sold 21 grams of cocaine to Errico for $750. Each sale was made in Krask's apartment in Calumet City. The furniture in the apartment was arranged and not in disarray. Errico did not notice a telephone in Krask's apartment. At no time during these two sales did Krask mention defendant. Krask gave Errico a pager number and told Errico that he could contact him at any time for additional purchases.

At approximately 5 p.m. on April 20, Agent Errico telephoned Krask's pager number. Krask telephoned Agent Errico approximately five minutes later. They agreed that Krask would sell eight ounces of cocaine to Errico for $7,500. Krask instructed Errico to meet Krask at 8 p.m. that night at his apartment. At no time during this telephone conversation did Krask mention defendant. Errico then met with his fellow agents to plan their surveillance of the transaction.

At approximately 8 p.m., Agent Errico arrived at Krask's apartment. Errico noticed that Krask's furniture was arranged in the same manner as the previous day. Krask opened his apartment door and walked into the hallway. A few moments later, defendant joined them in the hallway and Krask introduced defendant to Errico. Krask told Errico that he would obtain the cocaine, give it to defendant, who would give it to Errico. Defendant stood silently next to Krask during these instructions.

The three of them walked outside of the apartment building. Defendant walked away from them. Krask asked Agent Errico to show him the purchase money. They walked to and entered Errico's automobile, where Errico showed Krask $7,500 in $100 bills. Krask counted the money and returned it to Errico. Krask told Errico that Krask would retrieve the cocaine, and that Errico should page him in one half hour. Krask would then tell Errico where they would meet. After Krask left the car, Agent Errico telephoned his supervisor and reported the arrangement.

Errico paged Krask at the agreed time. When Krask telephoned Errico, he instructed Errico to meet him at the corner of Warren and Wentworth Streets in Calumet City. Errico immediately notified his surveillance team.

Agent Errico arrived at the rendezvous at approximately 9:10 p.m. A few minutes later, Krask arrived and entered Errico's car on the front passenger side. Krask told Errico to drive one block down the street, where Krask's tan Plymouth Duster was parked. Defendant was waiting inside the car with the cocaine. Errico initially refused to comply; he was concerned about leaving the protective vision of the surveillance team. Krask then exited Errico's car and walked in the direction of his car. A few minutes later, Krask returned and repeated his instructions. Errico complied this time because he knew that Krask could not get the cocaine.

With Krask sitting next to him in the front passenger seat, Agent Errico drove for a block and stopped parallel to the parked Duster. Defendant was sitting in the driver's seat of the Duster. Krask told Errico that defendant had the cocaine, and that defendant would enter Errico's car and give the cocaine to him. Krask exited Errico's car and entered the Duster; defendant exited the Duster and entered the front passenger side of Errico's car. Defendant held a brown paper bag.

Krask drove off in the Duster. After defendant entered Errico's car, Errico parked across the street. Defendant gave Errico the brown paper bag. Errico opened the bag and saw a clear plastic bag, which contained another clear plastic bag, which in turn contained a white powdery substance. In return, Errico gave defendant the $7,500 that he showed to Krask.

As defendant was counting the money, Errico signalled the surveillance team to apprehend the suspects. Seconds later, team members arrested defendant, who was still sitting in the front passenger seat of Errico's car with the purchase money in his hands. Defendant was in Errico's car for a total of one minute. Krask was arrested a short time later.

The State's next witness was Agent Fred Guerra. Agent Guerra was a member of the Cook County Sheriff's Police on assignment to the Northeastern Metropolitan Enforcement Group. On the night of April 20, 1988, Guerra was a member of the surveillance team that covered Errico's narcotics purchase. Guerra was parked approximately one block away from Errico; when Errico moved his car, Guerra followed. Guerra observed the actions of Krask, defendant, and Errico; Guerra's testimony essentially corroborated that of Errico. When Guerra and the other agents arrested defendant, Guerra saw the purchase money in defendant's hands.

The State's last witness was Nancy Hall, who was a chemist with the Illinois State Police. Hall opined that the white powdery substance that Errico purchased on the night of defendant's arrest contained cocaine.

Defendant was the sole witness for the defense. He testified essentially as follows. Defendant was 17 years old at the time of his arrest and was a junior in high school. He and James Krask's younger brother, Dan, were friends. Defendant and Dan were approximately four years younger than James Krask.

During school on the morning of April 20, 1988, Dan asked defendant to help him and Krask move some items into Krask's apartment. Defendant agreed. That afternoon, they went to the Krask household, where Krask and his girl friend packed.

Later that night, the four of them drove to Krask's apartment. Krask drove his Plymouth Duster, accompanied by defendant and Dan; Krask's girl friend drove another car. One of the items for Krask's apartment was a large console television. The apartment's existing furnishings were put in disarray as a result of the move. In return for their assistance, Krask bought beer for the group, which defendant drank.

The group arrived at Krask's apartment between 6 and 7 p.m. A short time after the group's arrival, two men arrived whom defendant did not know. Approximately twenty minutes later, Agent Errico arrived. Krask answered the door and spoke with Errico in the doorway. Defendant was sitting in a chair. Defendant was not part of the conversation; he did not know the subject of their conversation.

Krask turned and told defendant to come with him. By that time, defendant had been in the apartment for nearly two hours and had drank four or five beers. Defendant rose from his chair, put on his coat, and walked past Krask and Errico, who were closely facing each other while talking. When the three of them reached the apartment building entrance, defendant walked straight to Krask's Duster and remained there. Krask and Errico stood at the building entrance and continued to speak. When they exited the building, they walked away together. Defendant did not follow them and did not hear what they said.

Krask soon returned alone. He gave defendant the keys to his girl friend's car and told defendant to follow him. Defendant followed Krask to a house in Dyer, Indiana. Krask parked in the driveway and defendant parked behind him. krask instructed defendant to wait and then walked out of defendant's sight. Krask returned in approximately fifteen minutes and instructed defendant to follow him back to Calumet City. Defendant did not see Krask holding a brown paper bag or any other package.

Defendant followed Krask back to Calumet City. Krask stopped and used a public telephone. Defendant stayed in the car he was driving. He did not know to whom Krask spoke; he did not ask. After his telephone call, Krask instructed defendant to trade cars and follow him. So defendant, driving the Duster, followed Krask to a residential neighborhood. Krask motioned defendant to pull over and defendant complied. Krask told defendant to wait in the car and then drove away. Krask returned on...