People v. Valen

• Decision Date: 11 May 1989
• Docket Number: 87-1884,Nos. 87-1883,s. 87-1883
• Citation: 131 Ill.Dec. 908,539 N.E.2d 261,183 Ill.App.3d 571
• Court: United States Appellate Court of Illinois
• Parties: , 131 Ill.Dec. 908 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Lisa VALEN and Neal Logue, Defendants-Appellants.

Page 261

539 N.E.2d 261

183 Ill.App.3d 571, 131 Ill.Dec. 908

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Lisa VALEN and Neal Logue, Defendants-Appellants.

Nos. 87-1883, 87-1884.

Appellate Court of Illinois,

First District, Fourth Division.

May 11, 1989.

Michael J. Pelletier, Deputy Defender, Chicago (Martin Carlson, Asst. Appellate Defender, Mark W. Solock, of counsel), for Lisa Valen.

Michael J. Pelletier, Deputy Defender, Chicago (Anna Ahronheim, Asst. Appellate Defender, of counsel), for Neal Logue.

Richard M. Daley, State's Atty., Chicago (Inge Fryklund, James E. Fitzgerald, Asst. State's Attys., of counsel), for the People.

Justice LINN delivered the opinion of the court:

After a joint bench trial Lisa Valen (defendant) and Neal Logue (codefendant) were found guilty on information number 87 CR 405 of possession of more than 30 grams of a controlled substance with the intent to deliver and delivery of more than 30 grams of a controlled substance. (Ill.Rev.Stat.1985, ch. 56 1/2, par. 1401(a)(2).) Codefendant was also found guilty on information number 87 CR 406 of delivery of a controlled substance. (Ill.Rev.Stat.1985, ch. 56 1/2, par. 1401(b)(2).) Defendant was sentenced to two concurrent terms of six years' imprisonment and codefendant was sentenced to three concurrent terms of six years' imprisonment. Both appeal from their convictions and their appeals have been consolidated.

Defendant contends that she was not proven guilty of the offenses beyond a reasonable doubt because the evidence adduced at trial was insufficient to show that she participated in the delivery or exerted control over the contraband. Codefendant contends that he was not proven guilty beyond a reasonable doubt because there was insufficient evidence that a delivery took place or that the weight of the controlled substance exceeded 30 grams. Codefendant also contends that the trial court erred by finding him guilty of both the delivery and possession charges when his conduct constituted a single offense.

Both defendant and codefendant were charged by information number 87 CR 406 with calculated criminal drug conspiracy and delivery of a controlled substance based on the events occurring on November 24, 1986, and by information 87 CR 405 with calculated criminal drug conspiracy, delivery of more than 30 grams of a controlled substance and possession of more than 30 grams of a controlled substance with intent to deliver based on the events occurring on November 25, 1986. At trial Chicago police officer Curtis Scherr testified that while working in an undercover capacity on November 24, 1986, he contacted Eugene Boerema regarding the possible purchase of one ounce of cocaine. ^* Later that day Scherr met Boerema at Boerema's apartment at 4048 West 63rd Street to make the purchase. It was at this apartment that Scherr first saw defendant and codefendant. Scherr testified that Boerema introduced him to codefendant, who was standing in the doorway to the kitchen. Then Boerema brought a mirror, scales and plastic bag containing a white "brick" of cocaine from a bedroom to the dining room table. There Boerema cut off a portion from the "brick," weighed it on the scales and asked Scherr if it "looked alright." During this time defendant walked around the room and the dining room table while codefendant remained in the kitchen doorway.

Scherr testified that he paid Boerema the agreed price of $1,400 and that Boerema counted the money. He then passed it to codefendant, who again counted it while he walked into the bedroom. Boerema packaged the ounce of cocaine and Scherr left. Scherr then met with his surveillance team, returned to the police station and processed the contraband he received.

Still later that same day Scherr had several telephone conversations with Boerema and codefendant regarding a possible second purchase. Scherr testified that Boerema told him that he could procure any amount of cocaine Scherr needed. Scherr then made arrangements to purchase 10 ounces of cocaine the following day.

On November 25, 1986, Scherr arrived at Boerema's apartment between noon and 1 p.m. to make the second cocaine purchase. Boerema, defendant and codefendant were present, but he was told that the cocaine was not yet available. Scherr then left the apartment and told Boerema to page him when the contraband was available. During that afternoon Scherr made several telephone calls to Boerema's apartment. The first telephone conversation was with Boerema, who stated that the "product" was still not available. The second telephone conversation was with codefendant, who confirmed that the "stuff" was not there yet. Codefendant also told Scherr at this time that Boerema was a "nice guy" but "a little soft." Codefendant told Scherr that he (codefendant) was the "main guy" and that Scherr should deal directly with him.

Scherr then had two telephone conversations with defendant. In both conversations defendant told Scherr that Boerema and codefendant were not there. When Scherr expressed concern that the deal was taking too long, she told him to "be patient" and "hang in there" because they would soon bring his purchase. In the second telephone conversation with defendant, Scherr told defendant that his patience was gone, and he was not going to go through with the deal. Within 10 minutes of this telephone conversation Boerema paged Scherr and told him that his merchandise had arrived.

Scherr and his partner, Detective Thomas Keough, then proceeded to the Boerema apartment. It was about 5:30 p.m. on November 25, 1986, when Scherr again entered Boerema's apartment. Both defendant and codefendant were present in the apartment along with Boerema. Defendant stayed in the dining room near Boerema, while codefendant stood near the kitchen doorway. On the dining room table was a scale containing a large chunk or "brick" of cocaine. Boerema again asked Scherr if the weight "looked alright." Scherr agreed and then told Boerema to come outside to get the money from his partner. Boerema then instructed codefendant to package the cocaine on the scale as he stepped outside with Scherr.

Outside the apartment Boerema entered Scherr's vehicle and met his partner Detective Keough. Keough turned over $12,500 of DEA funds to Boerema. But as Boerema counted the money he was informed that he was under arrest. Boerema was advised of his rights and informed that there was a search warrant for his apartment. Scherr and the entire surveillance team then accompanied Boerema back into the apartment, searched the premises and arrested defendant and codefendant. As Scherr entered the apartment, he observed codefendant sliding a shotgun under the couch. This shotgun was recovered along with a second shotgun found on the kitchen table under codefendant's jacket.

Besides the nearly 10 ounces of cocaine which had been packaged and left on the dining room table for Scherr, the officers found packages of cocaine on top of the refrigerator in the kitchen and in the center bedroom of the three-bedroom apartment where defendant, codefendant and Boerema resided.

Detective Thomas Keough testified that he had been working with Scherr on November 24 and 25, 1986, and corroborated the testimony of Officer Scherr. Stipulations were then entered regarding the chain of custody and chemical analysis of the contraband. It was stipulated that the package purchased by Scherr on November 24, 1986, contained 28.02 grams of a substance containing cocaine. It was also stipulated that the package of cocaine found on the dining room table on November 25, 1986, contained 279.84 grams of substance containing cocaine and that the packages found on top of the refrigerator and in the center bedroom contained 163.78 grams and 20.08 grams, respectively, of a substance containing cocaine.

After the State rested, both accused moved for directed findings which were denied. Then defendant testified that she resided at 4048 West 63rd Street and Eugene Boerema was her boyfriend. Although defendant admitted that she was aware that several drug transactions had taken place at the apartment, she claimed that she never directly participated in these transactions and did not approve of them. Defendant testified that she had left the room on November 24, 1986, when the drug transaction took place. However, she admitted having two telephone conversations with Scherr on November 25, 1986, and being present during the subsequent drug transaction on that day. She also admitted to being an occasional cocaine user.

Eugene Boerema then testified on defendant's behalf. He admitted his own involvement in the drug transactions but testified that defendant never took part in or condoned the sale of drugs.

After closing arguments the court found defendant not guilty on information number 87 CR 406, but found codefendant guilty of delivery of a controlled substance. With regard to information number 87 CR 405, the court found both defendant and codefendant guilty of possession of more than 30 grams of a controlled substance with the intent to deliver and delivery of more than 30 grams of a controlled substance.

We first consider the appeal of defendant, who contends that there was insufficient evidence to prove her guilty of the offenses beyond a reasonable doubt under a theory of accountability. The relevant inquiry is whether the evidence, viewed in a light most favorable to the State, would support any rational trier of fact in finding that the essential elements of the crimes had been proven beyond a reasonable doubt. (People v. Collins (1985), 106 Ill.2d 237, 261, 87 Ill.Dec. 910, 478 N.E.2d 267.) To prove guilt under an accountability theory it must be shown that (1) defendant elicited, aided, abetted, agreed or attempted to aid another person in the planning or commission of the offense; (2) this participation took place before or during the commission of the offense; and (3) there was a...