People v. Tinoco

541 N.E.2d 1198, 185 Ill. App. 3d 816, 133 Ill. Dec. 760, 1989 Ill. App. LEXIS 965
CourtAppellate Court of Illinois
DecidedJune 27, 1989
Docket1-86-1502
StatusPublished
Cited by17 cases

This text of 541 N.E.2d 1198 (People v. Tinoco) 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. Tinoco, 541 N.E.2d 1198, 185 Ill. App. 3d 816, 133 Ill. Dec. 760, 1989 Ill. App. LEXIS 965 (Ill. Ct. App. 1989).

Opinion

JUSTICE HARTMAN

delivered the opinion of the court:

Defendant’s appeal from his convictions for delivery of a controlled substance raises the issues of whether: (1) the State proved him guilty beyond a reasonable doubt; (2) exclusion of testimony of two defense reputation witnesses constitutes reversible error; (3) contradictions of record regarding the imposed fine warrants remandment for clarification; and (4) defendant’s fine may be offset by time served in prison prior to sentencing.

Following a bench trial, the circuit court found defendant guilty of three counts of delivery of a controlled substance (Ill. Rev. Stat. 1987, ch. SG1^, par. 1401) upon the theory of accountability (Ill. Rev. Stat. 1987, ch. 38, par. 5 — 2(c)), imposed a fine of $3,000, and sentenced defendant to six years in custody of the Department of Corrections.

At trial, Drug Enforcement Administration (DEA) agent Robert Fanter testified to three separate transactions involving defendant and codefendant Gil Cobian. 1

On August 28, 1984, Fanter telephoned Cobian at the Cedar Hotel in Chicago and asked for a meeting which took place at a McDonald’s restaurant adjacent to the hotel. When Fanter told Cobian that he wanted to buy cocaine, Cobian replied that he would call Fanter after he had “talked to his source.” Cobian called Fanter two days later and said his source was with him; he, Cobian, had an ounce of cocaine for sale; and Fanter should come immediately to the hotel. Following Cobian’s instructions, Fanter and another DEA agent, Anthony Greco, went to the Cedar Hotel. Greco remained in their car as Fanter went into the hotel alone. In Cobian's room, Fanter saw Cobian and defendant, who Cobian referred to as “Joe.” Cobian gave Fanter a clear plastic bag containing white powder, for which Fanter handed him $2,400 in prerecorded, DEA funds. Fanter told defendant that he would be interested in “doing some in the future.” Defendant responded that “it would be possible to do larger amounts in the future.”

When Fanter next contacted Cobian on September 10, 1984, by telephone and asked to purchase two ounces of cocaine later in the week, Cobian said he would “get a hold of his source and make arrangements for the delivery.” Cobian did not identify his source by name. Fanter placed two more phone calls to Cobian on September 12, and twice that day went to the Cedar Hotel to meet Cobian. Greco again accompanied Fanter and again remained in the car. On his second visit, Fanter found both defendant and Cobian in the room. Cobian gave Fanter a clear plastic bag containing white powder. Fanter remarked that he hoped the quality of the cocaine would be better than before. Defendant said “it was better than the time before.” Cobian took $2,400 in prerecorded, DEA bills from Fanter and handed it to defendant, who put it in his front trouser pocket. Defendant also stated that if Fanter purchased larger amounts in the future, “the price would go down.”

Fanter placed another call to Cobian on September 18, 1984, arranged to meet him later that day at the same McDonald’s restaurant and noted that he was interested “in doing larger amounts,” anywhere from 10 ounces to a kilogram. Cobian responded that he’d have to speak to his source, referred to as “Joe.” Fanter telephoned Cobian on September 26 and again on September 27; Cobian informed him the second day that his source had not yet arrived and that Fanter should call one hour later. When Fanter did so, Cobian said his source was with him and that Fanter should “come right over.” Fanter drove with Greco to the hotel and, while Greco waited outside, proceeded alone inside the building.

In Cobian’s room, Fanter again found Cobian and defendant. Cobian handed Fanter two clear plastic bags containing white powder. Defendant assured Fanter that the “two ounces were better than the one ounce [Fanter] purchased earlier.” Fanter examined the cocaine under a light and handed $4,800 in prerecorded bills to Cobian, which he in turn gave to defendant. Defendant placed the bills in a trouser pocket. In response to Fanter’s remark that he “wanted to do larger amounts,” defendant stated that he “could deal more in the future, but he had to get to know [Fanter].” He also told Fanter the price of the narcotics would improve.

Fanter returned to his car and waited with Greco until defendant and Cobian emerged from the hotel. The agents followed the car in which defendant and Cobian drove away from the building; Fanter did not participate in their subsequent arrest.

Following defendants’ arrests that day, Fanter spoke to Sergeant Killackey at the 11th and State police station in Chicago. Killackey told Fanter that defendant wished to speak to Fanter and Killackey alone. In Killackey’s office, Fanter read defendant his constitutional rights, after which defendant said he received cocaine from an individual who owned or had owned an auto body shop at 22nd and Western and that he owed that individual $4,400 for the two ounces Fanter purchased earlier that day. If defendant could pay the $4,400, he could possibly purchase more cocaine. When Fanter refused to give him the money, defendant became upset and declined to speak any more.

On cross-examination, Fanter admitted that “original information” given to him indicated that Cobian and a person named Victor Romo were involved in drug trafficking; during the course of the transactions described above, Fanter at no time heard the name Robert Tinoco; and Cobian never identified “his source” as Robert Tinoco. Fanter did not see Cobian hand any money to defendant on August 30. On September 12, only Cobian, not defendant, pointed out the plastic bag of white powder to Fanter and referred to it as Fanter’s “ounce.” Fanter further conceded that he never saw defendant handle the cocaine bags and that he did not know what time defendant arrived at Cobian’s room on September 12. No trace of defendant’s fingerprints was found on the cocaine bags received on the 12th and 27th of September, nor did defendant tell Fanter at the police station on September 27 that the cocaine seized was his. In a conversation with Cobian on August 8, 1984, Cobian assured Fanter he could deliver large amounts of cocaine to him, but would have to talk to “Joe” to secure them.

Greco’s testimony corroborated Fanter’s description of his activities in connection with the cocaine transaction, specifically stating that on August 30, September 12 and September 27, Fanter and Greco parked their car in front of the hotel; Fanter walked into the hotel for approximately 10 minutes and reappeared carrying plastic bags of white powder, and on each occasion, the agents subjected the powder to a field test, which proved positive for the presence of cocaine. After the final transaction on September 27, Greco and Fanter waited in their car until defendant and Cobian left the hotel, following them once they drove away in their own automobile. In all the times he accompanied Fanter, he never saw where Fanter went once he entered the hotel.

On September 12, DEA agent Donald Imburdino drove with another agent to the Cedar Hotel and parked his car in front of the building. Upon surveillance, Imburdino saw Fanter enter and leave the hotel twice.

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Cite This Page — Counsel Stack

Bluebook (online)
541 N.E.2d 1198, 185 Ill. App. 3d 816, 133 Ill. Dec. 760, 1989 Ill. App. LEXIS 965, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-tinoco-illappct-1989.