People v. Miszkiewicz

• Court: Appellate Court of Illinois
• Writing for the Court: MANNING
• Citation: People v. Miszkiewicz, 602 N.E.2d 1312, 236 Ill.App.3d 411 (Ill. App. 1992)
• Decision Date: 05 October 1992
• Docket Number: No. 1-89-0067,1-89-0067
• Parties: , 177 Ill.Dec. 140 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Daniel MISZKIEWICZ, Defendant-Appellant.

Page 1312

602 N.E.2d 1312

236 Ill.App.3d 411, 177 Ill.Dec. 140

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Daniel MISZKIEWICZ, Defendant-Appellant.

No. 1-89-0067.

Appellate Court of Illinois First District, First Division.

Oct. 5, 1992.

Office of J. Scott Arthur, of counsel, Olympia Fields, for defendant-appellant.

Office of State's Atty. of Cook County, Jack O'Malley, Chicago, for plaintiff-appellee; Renee Goldfarb, Randall Roberts and Stanislaus Gonsalves, Asst. State's Attys. of counsel.

Justice MANNING delivered the opinion of the court:

Defendant Daniel Miszkiewicz was charged in three indictments with delivery of less than 15 grams of cocaine on three separate occasions. (Ill.Rev.Stat.1987, ch. 56 1/2, par. 1401(a)(2).) The three indictments were consolidated for trial, although the record is silent upon whose motion they were consolidated. Following a bench trial, defendant was convicted on all three indictments and sentenced to six years in the Illinois Department of Corrections.

On appeal defendant argues that: (1) he was denied effective assistance of counsel; (2) he was deprived of a fair trial where the three offenses were joined for prosecution; and (3) the State did not disprove beyond a reasonable doubt that he was entrapped.

Prior to trial, the court admonished defendant that his attorney had pleaded guilty to charges which were generally referred to as "Greylord charges", and that he was scheduled to be sentenced in the future. Defendant was further advised that his attorney had testified in one trial and would possibly be testifying in others, and that the attorney had entered an agreement with the Attorney Registration and Disciplinary Commission (ARDC) to surrender his license. Defendant stated that he understood and was satisfied with the attorney's representation of him. Defendant also stated that "I haven't found him to be preoccupied with his problem. He has been putting forth a good effort for me."

The record reveals the following testimony was adduced at trial. Agent Lloyd, the state's principal witness, testified that on January 13, 1987, Anthony Shipanik (Shipanik or Tony) became a government informant. He signed written documents wherein he agreed to cooperate with the Metropolitan Enforcement Group (MEG) in their effort to prosecute drug dealers. Shipanik was assigned to work with Agent Lloyd.

Lloyd testified that Shipanik was given a written document which explained that he could never become involved in any activity that would constitute entrapment. Shipanik read this document in Lloyd's presence. At that time Lloyd also explained to Shipanik that he could not force anyone to sell drugs to them, nor could he convince anyone to enter the narcotic business in order to introduce that person to Lloyd. Lloyd testified further that Shipanik verbally indicated that he understood the rules and signed the document.

Between January 15 and April 1, 1987, Shipanik provided Lloyd with defendant's name as a drug dealer. Lloyd contacted the Orland Park police department and was advised by Detective Muller that he had uncorroborated information that defendant dealt cocaine in the southwest suburbs.

On April 1, 1987, Shipanik arranged a meeting between Lloyd and defendant. Lloyd instructed Shipanik to have defendant bring two grams of cocaine to the meeting. Lloyd and Shipanik drove in an undercover vehicle to a Burger King restaurant where Lloyd was introduced to defendant. The three left the restaurant and entered Lloyd's car in the parking lot where defendant produced a small clear plastic bag containing white powder. Lloyd testified that defendant told him the cocaine was of "very high quality" and that no dilutants had been added. Lloyd gave defendant $180 and asked him what his usual prices were for cocaine. Defendant then gave Lloyd prices for an eighth, quarter, half ounce and ounce of cocaine. Lloyd testified that he then asked defendant how he could contact him in the future for additional purchases. Defendant advised Lloyd to call Shipanik and that Shipanik would contact him.

On April 9, 1987, Shipanik gave defendant Lloyd's telephone number and suggested that he contact Lloyd. Defendant called Lloyd and asked whether he wanted to purchase more cocaine. Lloyd testified that defendant told him the price was $275 for an eighth of an ounce and arranged for the two to meet at the same Burger King restaurant where the first contact took place. Lloyd drove the undercover vehicle to the restaurant, arrived about 8:30 p.m. and waited inside for about 20 minutes, at which time defendant arrived. Lloyd and defendant walked back to Lloyd's car where the money and cocaine were exchanged. Lloyd testified that he again asked defendant how he could contact him in the future to make more purchases, but defendant refused to give Lloyd his telephone number. Lloyd stated that defendant told him that he would call on a weekly basis between 6:30 and 8:30 p.m. to take Lloyd's cocaine order. Lloyd then gave defendant his undercover telephone number.

Defendant called Lloyd on April 13, 1987, and Lloyd told him that he wanted to purchase another "eight ball." Defendant suggested that they meet at a Venture store in Orland Park. After defendant arrived at the store, he called Lloyd, stated the price was $275 and told him to drive to the store where they would make the exchange. Lloyd met defendant, who was accompanied by a female, at the entrance to the store. They entered Lloyd's vehicle and defendant instructed Lloyd to drive out of the parking lot. Lloyd testified that defendant told his female companion to "give Joe the stuff", and she handed Lloyd a clear bag containing a white powder. Lloyd then gave defendant $275 and asked him the price for various quantities of cocaine. Defendant quoted a price of $500 for a quarter of an ounce and $1,650-$1,750 for an ounce. Lloyd told defendant he would be interested in purchasing additional quantities in the future, gave defendant his telephone-pager number and told him to call that following week.

On May 11, 1987, defendant called Lloyd and asked whether he wanted to purchase an ounce of cocaine, and Lloyd stated "yes." Defendant told Lloyd that the price would be $2,000, but Lloyd was dissatisfied with the price and asked defendant to lower the cost. Lloyd testified that defendant said he would check with his drug connection and would contact him at a later time.

Defendant called Lloyd on May 15, 1987, with a lower price of $1,900 and made arrangements to again meet at the Venture store parking lot. Lloyd contacted his surveillance personnel to discuss the anticipated delivery. Lloyd drove his undercover vehicle to the store's entrance and defendant exited the store, walked to Lloyd's car and entered. Defendant directed Lloyd to drive westbound through the parking lot to defendant's car. Lloyd and defendant exited Lloyd's car and entered defendant's car. Defendant then drove out of the lot and returned about two minutes later. At that point, he handed Lloyd a clear plastic bag containing white powder and told Lloyd that the cocaine had not been "stepped on" and that the cost was $1,900. Lloyd gave defendant the money and told him that he wanted to purchase three to four ounces of cocaine every week. After defendant placed the money in his pocket, Lloyd gave a prearranged arrest signal. Once the vehicle stopped, the surveillance team converged on defendant's car and arrested him. Defendant's car was searched and a clear plastic bag containing white powder was recovered. The contents of both bags were tested and the field test was positive for the presumptive presence of cocaine.

The parties stipulated that if Deborah Jurisic, Karl Larsen and Aurelin Lynn Rizzo, chemists employed by the Maywood Forensic Sciences Laboratory and the Illinois State Police Crime Lab, were to testify their testimony would establish that on April 13 and 14, 1987, and June 15, 1987, they received packets of white powder from Agent Lloyd seized from defendant, and after analyzing the white powder, determined that the powder was cocaine. It was further stipulated that the weight of the four bags of cocaine was 37.3 grams.

Defendant testified that he was employed, had matriculated at DeVry Institute from which he had received a diploma as a certified electronic technician and an Associate of Applied Science degree. He testified that he had never been arrested or convicted of any criminal offense other than traffic. He explained that he first met Anthony Shipanik (Tony) when he sought a job at Crown Buick while he was also attending school. Tony was a manager at Crown Buick and was responsible for defendant being hired. After leaving Crown Buick to accept his present position with Pitney Bowles, he did not see or hear from Tony until one day he returned to Crown Buick, where he had purchased a 1986 Buick, to obtain an extended warranty on his car. After conversing with Tony about the extended warranty, Tony asked defendant if he could ask defendant a personal question to which defendant responded yes. It was then that Tony approached him about securing some cocaine. Defendant asked Tony if he used cocaine and Tony responded that the cocaine was for a friend named "Joe." Defendant initially refused to get involved in such an activity. However, Tony inundated defendant with telephone calls imploring him to just do this one favor. At one point Tony even threatened to divulge some information to the owner of the Buick dealership regarding some extra equipment which had been given to defendant when he purchased his car. Tony backed down on the threat and suggested that he was only kidding. After being bombarded with numerous telephone calls from Tony, defendant finally agreed to find a source. He remembered that his landlord's brother was a drug dealer, and he looked up his telephone number, called him and conversed with him. Later Tony called defen...