People v. Perez, 1-88-2518

• Decision Date: 30 January 1991
• Docket Number: No. 1-88-2518,1-88-2518
• Citation: 209 Ill.App.3d 457,568 N.E.2d 250,154 Ill.Dec. 250
• Parties: , 154 Ill.Dec. 250 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Dennis PEREZ, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 250

568 N.E.2d 250 209 Ill.App.3d 457, 154 Ill.Dec. 250 The PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
Dennis PEREZ, Defendant-Appellant. No. 1-88-2518. Appellate Court of Illinois,
First District, Third Division. Jan. 30, 1991.

Page 252

[209 Ill.App.3d 460] [154 Ill.Dec. 252] Ryan, Miller & Trafalet, Chicago (Mary Ellen Dienes, of counsel), for defendant-appellant.

[209 Ill.App.3d 461] Jack O'Malley, State Atty. of Cook County, Chicago (Renee Goldfarb, James Fitzgerald, Kevin T. Noonan, of counsel), for plaintiff-appellee.

Presiding Justice CERDA delivered the opinion of the court:

Following a jury trial, the defendant, Dennis Perez, was convicted of delivery of a controlled substance (Ill.Rev.Stat.1985, ch. 56 1/2, par. 1401(a)(2)) and of calculated drug conspiracy (Ill.Rev.Stat.1985, ch. 56 1/2, par. 1405). He was sentenced to two concurrent terms of nine years imprisonment and fined $11,500. At trial, the defendant relied on the affirmative defense of entrapment. On appeal, the defendant contends that: (1) he was denied his right to a speedy trial; (2) he was denied a fair trial because he was not allowed to present any character witnesses in his behalf; (3) he was denied a fair trial because he was not allowed to testify as to his state-of-mind while a State witness was allowed to testify to hearsay evidence; (4) he was denied a fair trial because the State did not comply with discovery requests concerning the government informant, stating that they would not call the informant as a witness, but later the informant was allowed to testify without compelling the State to provide the discovery materials for impeachment purposes; (5) he was denied a fair trial when the trial court did not allow cross-examination of the State's informant witness about possible bias, interest, or motive to testify falsely; (6) he was denied a fair trial when the court did not allow him to call a witness in surrebuttal to impeach the testimony of the State's informant witness; (7) he was denied a fair trial when the court demonstrated hostility toward his attorney in the jury's presence; (8) the trial court erred in refusing to give certain jury instructions; (9) he was denied effective assistance of counsel; and (10) he was improperly convicted of a lesser included offense.

On October 28, 1986, the defendant was arrested for selling 220.51 grams of cocaine to undercover D.E.A. Agent Ludowig. Prior to the arrest, there were three drug transactions, on October 8, 16, and 28, 1986, arranged by Johnny Davis, a government-paid informant, acting on the instructions of Agent Ludowig. The DEA agent's investigation had been centered on Primitivo Rivera, who was originally a codefendant. Gabriel and Virginia Talavera, the alleged drug suppliers, were also codefendants. The case, however, was severed before trial.

Page 253

[154 Ill.Dec. 253] At trial, Agent Ludowig testified that on October 8, 1986, he instructed informant Davis to purchase a one-ounce sample of cocaine [209 Ill.App.3d 462] from Primitivo Rivera. The agent and informant drove to 2206 North California Avenue in Chicago, where the informant went into the Montana Realty Company, which was owned by the defendant, and came back out with Rivera and the defendant. After the three men conversed, the informant went back to the DEA agent's car and told him that there would be a delay in obtaining the drugs. The agent left, and when he returned, he saw Rivera and the defendant meet with the informant on the street. A conversation occurred among the three, and the defendant walked up the street where he met Gabriel and Virginia Talavera. There was an exchange between Virginia Talavera and the defendant. Then, the defendant, the informant, and Rivera walked to the agent's car and got in. The agent drove to a side street where the defendant gave him the cocaine package. At the defendant's request, the informant sampled the powder. The agent then paid the defendant the agreed upon $1,900, and the defendant told Agent Ludowig to deal only with Primitivo Rivera in the future.

Subsequently, Agent Ludowig instructed the informant to arrange a second one-ounce purchase of cocaine for $1,800 on October 16, 1986. When the agent and informant drove into the White Castle parking lot to make the purchase, the defendant and Rivera were standing next to the Talaveras car. The defendant and Rivera entered the agent's car, and the defendant handed a package of cocaine to the agent, who gave the defendant $1,800 in cash. The defendant asked the informant and the agent to sample the powder. Davis sampled the cocaine, and the agent pretended to sample it. Again, the defendant told the agent to speak with Rivera concerning any future deals.

Pursuant to Agent Ludowig's directions, the informant arranged for a one pound sale of cocaine for $23,000, to occur on October 28, 1986. An arrest was to be made at that time. The agent and informant met Rivera and the defendant in a Dunkin Donuts parking lot. According to Agent Ludowig's testimony, the defendant told the agent that the package would arrive shortly, that the transaction would be eight ounces at a time, and he wanted to cut out the informant and Rivera to deal only with Ludowig in the future. The agent left and, eventually, the transaction occurred in a Jewel parking lot. The informant met with the defendant and both returned to the agent's car. The defendant handed the informant a brown bag containing eight one-ounce plastic bags of cocaine, totalling 220.51 grams. The informant then handed the bag to the agent. At that point, the agent signaled to other DEA agents, who arrested the defendant, Rivera, and the Talaveras. Also at that time, the agents pretended to arrest the informant. The defendant[209 Ill.App.3d 463] was taken to DEA headquarters. He then gave a statement admitting his participation in the three drug transactions.

The defendant testified that he lived above his realty company with his wife and four children. He met Primitivo Rivera, a licensed real estate salesman, in May 1986 and hired him in July 1986. The defendant met the Talaveras in July 1986 when they became tenants in an apartment building owned by the defendant. Gabriel Talavera owed the defendant money for an unpaid portion of the security deposit for the apartment. The defendant made an offer of proof that Talavera had offered to give cocaine to the defendant in exchange for the security deposit, but the defendant declined. The trial court did not allow the defendant to testify about the offer on the basis that it was hearsay even though the defendant sought to have it admitted for the effect of the statement on his state of mind.

The defendant further testified that he fired Primitivo Rivera on October 2, 1986, because he was not performing well as a salesman and the defendant was concerned about "what [Rivera] asked". The trial court did not allow the defendant to testify about the content of his conversation with Rivera. The defendant further testified that the informant began coming to the

Page 254

[154 Ill.Dec. 254] real estate office to see Primitivo Rivera in late July or early August 1986, visiting two or three times a week. On October 3, 1986, the informant came to the office looking for Rivera. After he found out that Rivera had been fired, he told the defendant that Rivera was a murderer and a "torch", and that he had murdered his wife by cutting her throat. He also said that the defendant was getting in the way of "their" economy. When the defendant told the informant to leave the office, the informant responded that the defendant was going to have to deal with him and Rivera and then left.

The next day, the informant and Rivera came to the office. The informant told the defendant that "a lot of bad things can happen" and that he knew the defendant had a handicapped daughter. He then warned the defendant that he would start doing business with them whether he liked it or not...