People v. Abrego

493 N.E.2d 636, 142 Ill. App. 3d 973, 97 Ill. Dec. 200, 1986 Ill. App. LEXIS 2142
CourtAppellate Court of Illinois
DecidedApril 30, 1986
Docket2-85-0179
StatusPublished
Cited by14 cases

This text of 493 N.E.2d 636 (People v. Abrego) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Abrego, 493 N.E.2d 636, 142 Ill. App. 3d 973, 97 Ill. Dec. 200, 1986 Ill. App. LEXIS 2142 (Ill. Ct. App. 1986).

Opinion

JUSTICE UNVERZAGT

delivered the opinion of the court:

Defendant, Argelio Abrego, was charged in a four-count information filed in the circuit court of Lake County with unlawful delivery of more than 15 grams of a substance containing heroin, unlawful delivery of more than 30 grams of a substance containing cocaine, and two counts of armed violence relating to those two offenses. (Ill. Rev. Stat. 1983, ch. SGW, pars. 1401(a)(1), (a)(2); ch. 38, par. 33A — 2.) A co-defendant, Gerardo Carreno, was also charged with two unlawful deliveries, to which he subsequently pleaded guilty. A jury found the defendant guilty of all counts; he was sentenced to the Department of Corrections for 12 years on the heroin charge.

The defendant raises these issues in this appeal: (1) whether testimony by a government agent as to the substance of telephone conversations he had with a certain individual and his identification of that individual as the defendant should have been stricken due to the State’s failure to lay a proper foundation for the admission of this evidence; (2) whether the trial court improperly admitted out-of-court statements made by codefendant Gerardo Carreno under the coconspirator exception to the hearsay rule; (3) whether the defendant’s sentence of 12 years should be reduced because it is grossly disparate from the sentence imposed on his codefendant; and (4) whether the defendant’s sentence of 12 years is excessive.

Before testimony was taken at trial, defense counsel made a motion in limine requesting that statements made by codefendant Gerardo Carreno in connection with the drug deliveries for which defendant was on trial be excluded from evidence. The State indicated that it intended to introduce Carreno’s statements under the coconspirator exception to the hearsay rule. To that end, the State presented an offer of proof, with Richard Weil, a North Shore Metropolitan Enforcement Group (MEG) agent, and Cesar Palma, a Drug Enforcement Administration (DEA) agent, testifying on behalf of the State.

Agent Weil stated that on the evening of April 25, 1984, he was positioned at the far west end of a Shell gasoline station on Grand Avenue in Gurnee conducting surveillance in regard to an ongoing drug investigation. At 7:55 p.m., he observed a compact vehicle containing two male Latins drive into the station and park near the telephone, which was located at the east end of the station approximately 100 to 150 feet away from where he was located. The two men met with an individual named Larry Darnell, who was acting as a confidential informant in the investigation, and who had arrived at the station earlier.

During the next 10 to 20 minutes, agent Weil observed the two Latin men in the vicinity of the telephone. One man was very tall and bearded, and the other was very short. Weil identified the defendant as the tall man, and Gerardo Carreno was the short one. He stated that defendant was the person driving the compact car that evening, and that a license plate check yielded the defendant’s name. Agent Weil took notes of what he observed, using a tape recorder to record the events as they transpired. His notes reflected the defendant was on the telephone at 8:09 p.m. and that Carreno was on the phone at 8:11 p.m. Although he did not note it, he seemed to recall that Darnell talked on the phone also.

On that same evening, DEA agent Cesar Palma was stationed in Room 205 of the Holiday Inn in Gurnee, awaiting the delivery of 15 ounces of cocaine from Gerardo Carreno, with whom Palma had been negotiating previously. While in the room, Palma received a beep on his pager unit, which required him to make a telephone call back to the number shown on the pager. He responded to the page almost immediately. Although he testified on direct examination that he received the page between 7:30 and 8 p.m., he noted on cross-examination that his report indicated he received the page at 7:30 p.m. Palma acknowledged that he had been trained in making these reports and that the reports were to be accurate.

When Palma responded to the page, he spoke first with Larry Darnell, who told Palma he was in the company of Carreno and another male Mexican, and that he was across the street from the Holiday Inn at the Shell Station. Carreno then got on the telephone, and Palma spoke with him in Spanish. Carreno told Palma he had been unable to get the 15 ounces of cocaine. He added that the individual from whom he was getting the cocaine was with him. Carreno then put another individual, whom Palma did not know, on the telephone, and Palma had a narcotic-related conversation with him in Spanish.

Palma testified that he had another telephone conversation with this unknown • individual again on April 26. On the 26th, he talked with him in person in the parking lot of the Holiday Inn, and, later yet on the 26th, he talked with him after this unknown individual was arrested and he was being processed at the Lake County jail. Palma testified he recognized the voice of the person in the April 26 conversation to be the same voice he spoke with on April 25; he identified the defendant in court as the man he arrested and with whom he had the telephone conversations.

Over objection Palma testified that during the April 25 phone call, the speaker, whom Palma had identified as the defendant, Abrego, told Palma they had trouble getting the 15 ounces of cocaine, but would have it ready the next day. Palma stated that would be fine. The speaker, Abrego, then said that he understood Palma was interested in purchasing heroin and indicated that he could supply up to a kilo of it. When Palma indicated that he was more interested in the heroin than the cocaine, the speaker, Abrego, agreed to bring along some heroin on April 26.

Palma then spoke with Carreno again and expressed his anger at the fact that the delivery was not going to take place that day as planned. Carreno assured Palma that he could deliver the next day, and the call was then terminated.

On cross-examination, Palma testified he received a beep on his pager unit somewhere between 7:30 and 8 p.m., and responded to it as soon as he got an outside line. His report, prepared shortly after these events transpired, showed he received the page at 7:30 p.m. It did not take an extraordinary amount of time to get an outside line. He did not make notes of the events as they were transpiring. Prior to Abrego’s arrest on the 26th, Palma testified Abrego had also said to him, “Ola” (Hello) and “He [meaning Carreno] has it.”

The court denied the defendant’s motion in limine, ruling that ample circumstantial evidence had been presented in the State’s offer of proof to allow Carreno’s statements to be admitted at trial under the coconspirator exception to the hearsay rule.

Both agents Weil and Palma testified again for the State at trial. Agent Weil’s testimony was substantially the same as that given in the offer of proof. On cross-examination, Weil related again that he was not watching the Shell station or the telephone at the station during the entire time he was on surveillance on the evening of April 25. He agreed that it is possible that other people could have used the phone at some time without him noticing.

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Cite This Page — Counsel Stack

Bluebook (online)
493 N.E.2d 636, 142 Ill. App. 3d 973, 97 Ill. Dec. 200, 1986 Ill. App. LEXIS 2142, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-abrego-illappct-1986.