People v. Stroud
| Decision Date | 30 June 2009 |
| Docket Number | No. 1-05-0683.,1-05-0683. |
| Citation | 911 N.E.2d 1152,392 Ill. App. 3d 776 |
| Parties | The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Gregory STROUD, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
Allan A. Ackerman, P.C., Chicago (Allan A. Ackerman, of counsel), for Appellant.
Richard A. Devine, State's Attorney, Cook County, Chicago (James E. Fitzgerald, Kathleen Warnick, Rimas F. Cernius, of counsel), for Appellee.
On September 30, 1998, codefendants Gregory Stroud (Stroud),1 Carmecita Williams, Sean Stroud, and Dwight Chandler were charged with, among other things, violating the criminal drug conspiracy statute. 720 ILCS 570/405.1 (West 1998). The trial court conducted a joint bench trial and, at its conclusion, granted Sean Stroud's and Chandler's motions for directed verdict. Williams' appeal is currently pending before this court, but we vacated the order consolidating the Stroud and Williams cases. Therefore, Stroud is the only defendant involved in this appeal.
Stroud was convicted of criminal drug conspiracy, five counts of delivery of more than 100 but less than 400 grams of cocaine, one count of possession of more than 900 grams of cocaine with intent to deliver, and one count of possession of 1 to 15 grams of cocaine with intent to deliver. He was sentenced to concurrent 20 year terms in prison.
On appeal, Stroud presents five issues for review: (1) whether Public Act 85-1203 and Public Act 86-763 , which amended Article 108B of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/108B (West 1998)), violate the single subject clause in the Illinois Constitution (Ill. Const.1970, art. IV, § 8(d)); (2) whether his convictions must be reversed because (a) the State failed to satisfy the "necessity" component for the issuance and subsequent extension of two electronic surveillance orders, and (b) the State used an improper methodology in identifying Stroud's voice; (3) whether the trial court erred when it found that section 405.1 of the Illinois Controlled Substances Act (720 ILCS 570/405.1 (West 1998)) was not void because Public Act 89-404 violates the single subject clause; (4) whether the State presented sufficient evidence to convict him of criminal drug conspiracy (720 ILCS 570/405.1 (West 1998)); and (5) whether the trial court erred when it denied his motion to suppress the seized physical evidence based on a warrantless traffic stop. In a petition for rehearing, the defendant maintains that the trial court erroneously convicted and sentenced him for possession with intent to deliver cocaine (the principal offense) and for criminal drug conspiracy (the inchoate offense). For the reasons that follow, we vacate the defendant's conviction and sentence for criminal drug conspiracy, affirm his remaining convictions and sentences for possession with intent to deliver, and direct the clerk to correct the mittimus.
The instant case involves an undercover investigation into a suspected drug ring. On September 30, 1998, a Cook County grand jury returned a true bill charging Stroud with one count of criminal drug conspiracy, with five counts of delivery of more than 100 but less than 400 grams of cocaine, with one count of possession of more than 900 grams of cocaine with intent to deliver, with one count of possession of one to 15 grams of cocaine with intent to deliver, with one count of possession of less than 10 grams of heroin with intent to deliver, and with two counts of unlawful use of a firearm by a felon.
Prior to trial, Stroud filed a motion to suppress the intercepted communications and argued that Public Act 85-1203 and Public Act 86-763 violated the single subject clause because the acts addressed subjects other than electronic surveillance. Judge Himel conducted a hearing on the matter and denied the motion. Stroud also filed a pretrial motion to suppress the physical evidence seized in a warrantless traffic stop, which the trial court deferred ruling on until evidence was presented at trial.
After the case was transferred from Judge Himel to Judge Darcy, Stroud filed a second motion to suppress the intercepted communications. Again, he argued that Public Acts 85-1203 and 86-763 violated the single subject clause because the acts addressed subjects other than electronic surveillance. He also argued that the affidavits in support of, and the authorizations for, the electronic surveillance orders were fundamentally flawed. The trial court denied the motion.
Stroud also filed a motion to strike voice identification testimony and argued that the court must strike Investigator Macklin's testimony regarding the identification of Stroud's voice because Macklin violated Article 108B by playing the tapes to Stroud.
The State's main witness was Investigator Maurice Macklin. Throughout the trial, the State played tape-recorded conversations between Macklin and Sam Elem2, a drug dealer, as well as surveillance videotapes of their interactions. The State also played tape-recorded conversations that had been intercepted pursuant to the electronic surveillance orders. After the State played the tapes at trial, Macklin explained what had occurred in the tapes.
At trial, Macklin testified that he is an investigator with the Cook County State's Attorney's office and is assigned to long-term narcotics investigations. On February 6, 1998, he went undercover and portrayed himself as a person interested in buying large quantities of cocaine. A confidential informant introduced him to Elem. Elem said he could sell Macklin various quantities of cocaine and explained the corresponding prices. Later that day, Macklin appeared before Judge Linn and requested a consensual overhear order, which Macklin explained was a body wire to record future communications with Elem. Judge Linn granted a 10-day consensual overhear order.3
The State played recorded telephone conversations that occurred on February 7, 1998. Macklin and Elem discussed the purchase price of an eighth of a kilogram of cocaine, and they agreed to meet at a parking lot. Elem drove up to Macklin's undercover vehicle and Macklin asked about the price of the cocaine. Elem responded that he would have to "run to the house" and find out the price. Elem used a gas station pay phone and, when he returned, told Macklin that he had to go down the street to get the price of cocaine. Macklin waited at a fruit stand, but Elem never returned because he was arrested by the South Holland police for reasons unrelated to the instant investigation.
The State played recorded telephone conversations that occurred on February 14, 1998. Elem told Macklin that he needed to contact his cocaine supplier and they agreed to meet at the fruit stand. Macklin went to the fruit stand with $5,000 in prerecorded funds. When Elem arrived, Macklin informed Elem that he normally buys an eighth of a kilogram of cocaine, although he sometimes buys a "loaf," referring to a kilogram of cocaine. Elem said he, referring to his supplier, would give Macklin a good price once Macklin bought cocaine on a regular basis. Elem then drove out of the fruit stand parking lot. According to Macklin, when Elem returned, Elem entered Macklin's vehicle and told Macklin that the price for an eighth of a kilogram of cocaine was $3,200. Macklin told Elem he normally conducts his transactions hand-to-hand, but Elem explained that his supplier always does business this way and that Elem is not allowed to take anyone to his supplier's house. Macklin gave Elem $3,200 for an eighth of a kilogram of cocaine. According to Macklin, Elem got into Macklin's vehicle carrying a brown paper bag and gave Macklin an eighth of a kilogram of cocaine. The parties stipulated that the package Elem gave Macklin contained 124.4 grams of cocaine.
Officer Manuel Colon testified that he conducted the surveillance on February 14, 1998, and saw Elem drive to 15617 South State Street, exit the vehicle, walk toward the residence, exit the residence, get into his vehicle and drive to the fruit stand. Colon later saw Elem drive away from the fruit stand, drive to 15617 South State Street, enter and exit the residence, and drive back to the fruit stand. Officer Lau's testimony corroborated Officer Colon's testimony, except Officer Lau also testified that Elem was carrying a black bag.
On February 18, 1998, Macklin appeared before Judge Lampkin and obtained another 10-day consensual overhear order.
The State played recorded telephone conversations that occurred on February 19, 1998. Macklin asked Elem if he could get another eighth of a kilogram of cocaine, and Elem indicated it should not be a problem. They agreed to meet at the fruit stand, and Macklin brought $3,500 in prerecorded funds with him. When Elem arrived, he told Macklin that he would talk to his supplier and that they should meet again later that day. Approximately half an hour later, Elem returned to the meeting location and got into Macklin's vehicle. Elem told Macklin that the price for an eighth of a kilogram of cocaine was $3,250, and Macklin gave Elem the money. Macklin testified that when Elem returned, Elem entered Macklin's car and gave him an eighth of a kilogram of cocaine. Macklin indicated to Elem that the weight of the package felt light. When Macklin returned to the police station and weighed the package, it was approximately 10 grams short of an eighth of a kilogram. The parties stipulated that the package contained 113.5 grams of cocaine.
Officer Colon testified that he was conducting surveillance on February 19, 1998, and observed Elem drive to 15617 South State Street, enter the residence,...
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