People v. Melgoza

• Decision Date: 19 June 1992
• Docket Number: No. 1-89-3464,1-89-3464
• Citation: 172 Ill.Dec. 591,231 Ill.App.3d 510,595 N.E.2d 1261
• Parties: , 172 Ill.Dec. 591 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Saul MELGOZA, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1261

595 N.E.2d 1261

231 Ill.App.3d 510, 172 Ill.Dec. 591

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Saul MELGOZA, Defendant-Appellant.

No. 1-89-3464.

Appellate Court of Illinois,

First District, Sixth Division.

June 19, 1992.

Rehearing Denied June 19, 1992.

[231 Ill.App.3d 514] [172 Ill.Dec. 596] Serpico, Novelle & Navigato, Ltd. (Robert A. Novelle, Phillip M. Angelini, of counsel), Chicago, for defendant-appellant.

Jack O'Malley, State's Atty. (Renee Goldfarb, Kenneth T. McCurry and Monica L. Willis, of counsel), Chicago, for plaintiff-appellee.

OPINION UPON REHEARING

Justice LaPORTA delivered the opinion of the court:

Defendant was arrested after undercover police were involved in one drug purchase May 18, 1988, and an attempt at another drug purchase May 25, 1988. Defendant was alleged to have provided the drugs for sale in both instances. Although not consolidated the two drug cases were tried together in a bench trial. Defendant was found guilty of calculated criminal drug conspiracy, armed violence and possession of a controlled substance with intent to deliver for the May 25 incident and guilty of conspiracy and delivery of a controlled substance for the May 18 incident. He was sentenced to 10 years in prison on each conviction with the sentences to run concurrently. Jose Jiminez, his co-defendant, was found not guilty at the close of the State's proofs.

On appeal, defendant contends the State's evidence failed to prove him guilty beyond a reasonable doubt on each of the five charges. Defendant also contends the court erred when it admitted into evidence hearsay statements made by an alleged co-conspirator. Finally, defendant contends he was denied effective assistance of counsel.

Defendant and an alleged co-conspirator, Jose Jiminez, were tried on October 20, 1989. The following information was adduced at trial:

Chicago police officer James Ahern testified that he was assigned to the Organized Crime Unit Narcotics Division. Ahern testified he was involved in a narcotics investigation on May 18, 1988, and was at the police station when his personal beeper activated to notify him that he had a phone message. He testified that he called the number on the beeper, recognizing the voice on the other end of the line as that of a young man named "Vic" with whom he had previously dealt.

Ahern testified that after he spoke with Victor and at about 3 p.m., he and his partner, officer Sheppard, drove their unmarked squad car to approximately 2300 W. 50th Street. They parked near a viaduct. Victor approached the car. When the State attempted to question Ahern about his conversation with Victor, defense counsel's objection was sustained. The State argued the conversation was admissible as a co-conspirator statement and the court then overruled the defense objection.

Ahern testified that he told Victor he wanted to buy an ounce of cocaine. Ahern testified that Victor told him "his guy was on the way to my location with the cocaine." Victor then left his sight and when he came back, he told him "his guy, his connect hasn't arrived yet but he is on the way." Victor left again and when he returned the second time he handed Ahern an album cover and told him the cocaine was inside. Ahern testified that he found a plastic bag with white powder inside, later identified as cocaine. He handed Victor $1,000 and then he and his partner drove away. The cocaine was admitted into evidence.

Ahern then testified that on May 25, 1988, he contacted Victor by phone, asking him to arrange for Ahern to purchase a kilogram of cocaine and 25 pounds of marijuana. Later in the day he received a beeper page from Victor at approximately 5 p.m. and he and his partner then drove to a Pizza Hut restaurant at 5900 S. Western Avenue in an unmarked car.

Ahern testified that Victor got into the car and then told the two officers that he had the cocaine but not the marijuana. They agreed to a price of $25,000 for the purchase of a kilo of cocaine. Ahern had the money with him in pre-recorded bills. Victor counted the money. Ahern testified that Victor said that "he had to bring the money to his guy and that the kilo was in his guy's car under the hood." Ahern testified that he did not give the money to Victor but instead he put the $25,000 in the trunk of his car and gave Victor the key. Victor left walking north on Western Avenue out of Ahern's sight. Victor then returned to the car and stated "we can't do the deal here, we have to do it somewhere else." Victor left the area.

Ahern reported what had transpired by police radio to surveillance officers on the scene who told him to leave the area because surveillance officers had learned that one of the persons involved in the transaction was armed and Ahern had $55,000 in cash with him. Ahern testified that he then left the scene and within minutes the defendant, Jiminez and Victor were arrested by surveillance and other officers near the scene. Ahern then joined his fellow officers at the place of arrest.

After Ahern read his Miranda rights to them, Victor admitted to him that he and the defendants were going to rob the officers. Ahern testified on cross-examination that defendant did not make a verbal response to Victor's admission about an intended robbery. Ahern testified he never had any conversations with Jiminez at any time and that on May 25, Victor did not mention Jiminez' name. Ahern first saw Jiminez after the defendants and Victor were placed under arrest. He acknowledged that he did not see Jiminez in possession of either a weapon or narcotics nor did he see him in the car in which the narcotics were found. Ahern testified there were two cars at the scene of the arrest, but he did not remember to whom they belonged.

The second State witness, Chicago police officer Wayne Taveggia, stated that on May 18, 1988, he was working narcotics surveillance duty outside a home at 2100 W. 50th Place. Officers Ahern and Sheppard were in an undercover vehicle somewhere in the vicinity for the purchase of narcotics. On that day, Taveggia saw a teenager he knew named Victor leave the residence at 2100 W. 50th Place walking westbound on 50th Street, enter a viaduct and leave his sight. Victor returned several minutes later, sat on the stoop at the side door of the residence and a few minutes later got into a tan Cadillac driven by defendant and then drove away. When the vehicle returned only the defendant was inside. Defendant parked the car and remained seated in the driver's seat. Taveggia testified that Victor returned to the area a short time later and walked west on 50th Street under the viaduct and Taveggia lost sight of him. Several minutes later Victor returned, walked up to defendant's car and spoke to defendant who was still seated in the car. Victor had nothing in his hands when he approached the car. Taveggia testified that Victor "then reached inside the car and walked away carrying a record album." Taveggia testified that Victor then walked westbound toward the viaduct and went out of sight. When he returned he was still carrying the record album. He again waited at the side door of the residence. Several minutes later the Cadillac returned driven by defendant. Victor got back into defendant's car and they drove out of sight.

Taveggia testified that on May 25, 1988, at approximately 6 p.m. he was working surveillance about 150 feet north of the Pizza Hut restaurant at 5900 S. Western Avenue where he could see Ahern and his partner in their car. The officers were there to make an undercover purchase of drugs. Taveggia testified that 5 or 10 minutes later he saw the same tan Cadillac he had seen on May 18 arrive in the vicinity with defendant in the driver's seat and Victor in the passenger seat. He testified that Victor left the car, walked to the parking lot where Ahern and Sheppard were parked and spoke with them. He then walked back to defendant's car which was parked 1/2 block west. Defendant was standing outside the car. Defendant and Victor had a short conversation, then walked to the parking lot of a nearby Kentucky Fried Chicken restaurant north of the Pizza Hut. There they met Jiminez and all three engaged in conversation. Taveggia testified that Victor then walked back to the parking lot where Ahern was parked, spoke to him, then left and Ahern and his partner drove away. Defendant and Jiminez were still standing in the Kentucky Fried Chicken parking lot. Then Victor and defendant ran to defendant's Cadillac parked about a block west and Jiminez got into his own car. Both vehicles then proceeded eastbound on 59th Street and southbound on Western in the same direction Ahern had driven.

Taveggia testified that a few minutes later both cars were "curbed." Police confiscated a tan bag containing a kilogram of cocaine from under the hood of defendant's car. He also testified that "Officer Digman recovered a .357 magnum from the back of that Cadillac." He testified that nothing was recovered from the persons of defendant or Jiminez nor from Jiminez' car.

On cross-examination, Taveggia testified that in his surveillance on May 18, he did not see Jiminez and that on May 25, he did not see Jiminez have any conversation with Ahern or Sheppard.

On further cross-examination by defendant's attorney, Taveggia recounted his testimony about events he observed at about 2 p.m. on May 18, 1988, when he saw Victor sitting at the side door of his residence, then get up, walk down the street, go into the viaduct, out of his sight and then return four or five minutes later. Victor waited for about 5 minutes when Taveggia saw the defendant, whom he had never seen before, drive up to the house, Victor got in the car and they drove away. He repeated his testimony that the defendant shortly thereafter returned to the scene in his car and Victor returned on foot and empty handed. Victor and defendant had a conversation, then Victor reached into the...