People v. Rogers

• Decision Date: 15 August 1989
• Docket Number: No. 2-88-0363,2-88-0363
• Citation: 187 Ill.App.3d 126,543 N.E.2d 300
• Parties: , 135 Ill.Dec. 65 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Charles ROGERS, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 300

543 N.E.2d 300

187 Ill.App.3d 126, 135 Ill.Dec. 65

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Charles ROGERS, Defendant-Appellant.

No. 2-88-0363.

Appellate Court of Illinois Second District.

Aug. 15, 1989.

Dalton P. Grief, Grief, Bus & Blacklidge, West Chicago, for Charles Rogers.

James E. Ryan, DuPage County State's Atty., William L. Browers, Deputy Director, State's Attys. Appellate Prosecutor, Kevin T. McClain, Immel, Zelle, Ogren, McClain, Germeraad & Costello, Springfield, for People.

Justice DUNN delivered the opinion of the court:

Defendant, Charles Rogers, was convicted of one count of unlawful delivery of 30 or more grams of a substance containing cocaine (Ill.Rev.Stat.1985, ch. 56 1/2, par. 1401(a)(2)) and two counts of unlawful delivery of between 10 and 30 grams of cocaine (Ill.Rev.Stat.1985, ch. 56 1/2, par. 1401(b)(2)). Defendant raises the following contentions on appeal: (1) that tape recordings of conversations between him and a government informant were erroneously admitted into evidence; (2) that the trial court improperly permitted the jury to examine transcripts of the taped conversations prepared by the State while the recordings were being played; (3) that the trial court erred by denying his motion to call a certain individual as a court's witness; (4) that the trial court erroneously prevented him from bringing out certain evidence on cross-examination and during his case in chief; (5) that the prosecution violated a court order forbidding presentation of evidence concerning drug sales to informant Kathe Hoare by individuals other than defendant or by defendant prior to December 1986; and (6) that defendant was prejudiced by several improper statements made by the prosecuting attorneys. We affirm.

The charges against defendant arose from cocaine purchases allegedly made by Kathe Hoare at the Rustic Lounge just outside West Chicago in unincorporated Du Page County on December 16, 1986, December 29, 1986, and January 30, 1987. Defendant was the manager of the lounge and lived with his family in an apartment on the premises. At the time the alleged cocaine purchases were made, Hoare was working as an informant for the Du Page County Metropolitan Enforcement Group (DUMEG). Hoare was incarcerated at the Du Page County jail on deceptive-practice charges when she agreed to become an informant. She had four prior felony convictions, having been convicted of deceptive practices in 1979, 1981, and 1987, and theft in 1981. At the time of defendant's trial, Hoare had 13 charges pending against her in Du Page County and other counties, primarily for deceptive practices. Hoare admitted that she used cocaine on a regular basis until she became a DUMEG informant in early December 1986.

Tape recordings of numerous conversations between Hoare and defendant at the Rustic Lounge in December 1986 and January 1987 were admitted into evidence. On each of the dates on which a recorded conversation was obtained, the following events occurred. Hoare first met with DUMEG and Illinois State police agents at the West Chicago police station. Hoare and her clothing were searched by a female police officer. Agents searched Hoare's red pickup truck. No illegal drugs or other contraband were found in any of these searches. On most of the occasions, Hoare was then outfitted with both a Nagra reel-to-reel recorder and an RF transmitter, which enabled agents parked nearby in a van to monitor the conversations. After January 20, Hoare was outfitted with only the RF transmitter.

On each of the dates, Hoare drove to the Rustic Lounge in her red pickup truck after leaving the police station. Agents in a van and in a car followed her to the lounge and parked nearby. The agents in the van were able to overhear and monitor Hoare's conversations. When Hoare left the lounge in her pickup truck, she returned to the West Chicago police station. The agents in the van and car followed her. After she arrived, Hoare, her clothes, and her truck were searched once again. The only dates that Hoare possessed contraband upon her return from the lounge were December 16, December 29, January 20, and January 30.

On each of the above dates, Hoare possessed plastic baggies containing a substance. She identified four exhibits as the contraband she possessed on those dates and testified that she received the contraband from defendant. Laura Mitacek, a chemist with the Du Page County sheriff's office, testified that each of the plastic baggies purportedly given to Hoare by defendant had a substance inside which contained cocaine. The substance turned over by Hoare on December 16 weighed 26.57 grams. The substance which she turned over on December 29 weighed 27.89 grams. The two plastic baggies which she turned over on January 30 contained a substance weighing 55.59 grams. Hoare testified that defendant gave her the plastic baggies containing these substances on the above dates after she paid him. Defendant denied making these deliveries to her. On January 20, defendant gave Hoare a plastic bag containing 1.83 grams of cocaine, purportedly as a sample for a larger proposed transaction which was never consummated. Defendant was not charged with this delivery. He admitted giving Hoare this small sample of cocaine on January 20, but stated it was cocaine that Hoare had previously given to him.

Hoare testified that she listened to each of the tape recordings admitted into evidence and that the recordings accurately depicted the conversations that took place between her and defendant on the dates in question. While the tapes were being played in court, the trial judge permitted the jury to use written transcripts of the conversations prepared by the State as a guide. Hoare and DUMEG Agent James O'Brien both testified that they assisted in the preparation of the transcripts and that the transcripts accurately described the conversations between Hoare and defendant on the dates in question. O'Brien testified that he monitored many of the conversations in the van parked near the lounge and that he listened to all the tapes. Hoare testified that DUMEG Agent Michael Sullivan and two assistant Du Page County State's Attorneys assisted her in the preparation of the transcripts. The trial judge admonished the jury that the transcripts were not evidence and were only provided to assist the jury in listening to the tapes, which were evidence.

Defendant acknowledged during his testimony that he discussed potential cocaine sales to Kathe Hoare during many of the recorded conversations. Defendant stated, however, that he believed the West Chicago police were trying to set him up on a drug bust because of a lawsuit he had filed in Federal court against the City of West Chicago, its police chief, West Chicago police officer Jerome Dolan, and other defendants. Defendant testified that he decided to play along when Hoare asked to buy cocaine from him in an effort to determine who was setting him up. Defendant also presented evidence concerning Hoare's poor reputation for honesty and her cocaine use. This included testimony from defendant's brother, Michael Sigler, that, in his opinion, Hoare was a cocaine addict between November 1986 and February 1987.

The jury found defendant guilty on all three counts. The trial court denied defendant's post-trial motion and sentenced him to concurrent terms of imprisonment of eight years, four years, and four years on the three counts. Defendant now appeals.

Defendant first argues that it was error for the trial court to admit the tape recordings into evidence. Defendant contends that the State did not provide a sufficient foundation for admission of the tapes and that their admission was improper because many of the comments made were inaudible or unintelligible.

An adequate foundation exists for the admission of tape recordings into evidence if a witness to the conversation testifies that the tape accurately portrays the conversation in question. (People v. Williams (1985), 109 Ill.2d 327, 338, 93 Ill.Dec. 788, 487 N.E.2d 613; People v. Gaurige (1988), 168 Ill.App.3d 855, 863, 119 Ill.Dec. 447, 522 N.E.2d 1306.) Kathe Hoare, a witness to each conversation, testified that all of the tapes accurately portrayed the conversations in question. The State provided an adequate foundation for the admission of the tapes.

Additionally, a partially inaudible tape recording is admissible unless the inaudible portions are so substantial as to render the recording untrustworthy as a whole. (People v. Dougherty (1987), 160 Ill.App.3d 870, 876, 112 Ill.Dec. 337, 513 N.E.2d 946.) The admission of a partially inaudible recording or a recording that depicts only a portion of a conversation is a matter within the trial court's discretion. (Dougherty, 160 Ill.App.3d at 876, 112 Ill.Dec. 337, 513 N.E.2d 946.) While some portions of the tape recordings are inaudible, our review of the tapes indicates that those portions are not so substantial as to render the recordings untrustworthy as a whole. The trial court did not abuse its discretion by admitting the tapes into evidence.

Defendant also argues that the jury should not have been permitted to review transcripts of the recordings prepared by the State while the tapes were being played. It is proper, however, for a trial court to permit the jury to use written transcripts of recorded conversations in order to assist them while they listen to the conversations. (People v. Spicer (1978), 61 Ill.App.3d 748, 759, 18 Ill.Dec. 705, 378 N.E.2d 169, rev'd on other grounds (1979), 79 Ill.2d 173, 37 Ill.Dec. 279, 402 N.E.2d 169.) Here, as in Spicer, the transcripts were used solely for this limited purpose and were collected from the jurors after they listened to the tapes. In Spicer, the court stated it would be a better practice for the trial court to admonish the jury as to the purpose of the transcripts and instruct the jury to determine for itself the...