People v. Manuel
Annotate this Case
Fourth Division
December 31, 1997
Nos. 1-95-4163, 1-96-2144 Cons.
THE PEOPLE OF THE STATE OF ILLINOIS, ) APPEAL FROM THE
) CIRCUIT COURT OF
Plaintiff-Appellee, ) COOK COUNTY.
)
v. )
)
GERALD MANUEL, ) HONORABLE
) DANIEL J. KELLEY,
Defendant-Appellant. ) JUDGE PRESIDING.
JUSTICE WOLFSON delivered the opinion of the court:
Before his cocaine delivery trial, the defendant Gerald
Manuel challenged the admissibility of recordings of his
telephone conversations with an informant and a drug enforcement
agent. He was unsuccessful. At trial, the jury heard the
conversations where the defendant negotiated terms and conditions
for the sale of cocaine.
After a jury trial, Manuel was found guilty of delivering
more than 100 grams, but less than 400 grams, of cocaine in
violation of Ill. Rev. Stat. 1991, ch. 56«, par. 1401(a)(2)(B),
(now 720 ILCS 570/401(a)(2)(B) (West 1992)). The sentencing
range for this offense is 9 to 40 years. Manuel was sentenced to
12 years imprisonment.
After trial, Manuel filed an appeal from his conviction and
sentence. Before any appeal briefs were submitted, however,
Manuel filed a pro se post-conviction petition. The trial court
summarily dismissed the post-conviction petition without an
evidentiary hearing.
Now, in this consolidated appeal, we address Manuel's direct
appeal from his conviction, as well as his appeal from the denial
of post-conviction relief. We affirm the trial court's orders in
both proceedings.
FACTS
At trial, the following evidence was presented:
Chris Robinson (Robinson) was a convicted felon with an
extensive criminal history. Then, between September 1992 and
January 1993, he came under investigation for dealing in cocaine.
He made five deliveries to undercover agents during this time
period and a warrant was issued for his arrest.
On April 6, 1993, Robinson turned himself in to the FBI. He
later pled guilty to the five deliveries. He knew he could be
facing a sentence of up to 150 years imprisonment because of the
five deliveries and his past criminal history. Therefore, when
the FBI asked for his cooperation, he agreed to be an informant
in the hope of obtaining leniency.
On April 8, 1993, while represented by legal counsel,
Robinson signed an agreement to cooperate with the government law
enforcement officers in exchange for a promise that his
cooperation would be taken into consideration at the time of
sentencing. Robinson then disclosed information about one of his
Chicago drug suppliers, known to him as "Tate," but later
identified as defendant, Gerald Manuel. Robinson said he had
been obtaining drugs from Manuel for the past year. Robinson
would purchase between two and 14 ounces of cocaine from Manuel
every week or two. Robinson also socialized with Manuel over the
past year. Their relationship was friendly.
In addition to revealing this source, Robinson agreed to
arrange for an undercover agent to purchase cocaine from Manuel
and to accompany this agent at the purchase. Sometime on April
12th or 13th, Robinson paged Manuel from Springfield and, when
Manuel called back, made arrangements for this drug purchase.
On April 14th Robinson paged Manuel again, this time from
the offices of the Springfield State Police. Robinson explained
that whenever he paged Manuel he entered a special code number --
"223" -- which identified him to Manuel as the caller. Manuel
phoned Robinson at the station. The conversation was recorded
with Robinson's permission. A tape-recording of this
conversation was entered into evidence.
In this conversation, Robinson told Manuel he had a buyer --
a female -- who was willing to purchase ¬ of a "key" or "kilo" of
cocaine (about nine ounces) for $7,000. The $7,000 price
apparently was high, but Robinson told Manuel he could "juice"
the buyer. Robinson explained to the jury this meant Manuel
could overcharge her.
During this conversation, Robinson told Manuel his last
delivery was "no good" and he lost "3Gs" because of the poor
quality of the cocaine that was delivered. Robinson explained to
the jury "3Gs" meant $3.000.
On April 15, 1993, Robinson drove to the Chicago area in the
company of FBI Agent Ranck and Illinois State Police Officer
Marks. At about 1 p.m., Robinson met Agent Yorli Huff, a female
officer for the Northeast Metropolitan Enforcement Group (NEMEG,
now called MEG of Cook County), a multi-jurisdictional drug task
force. They met at the Hillside Police Department at 30 Wolf
Road. From this station, Robinson paged Manuel. Manuel answered
the page, calling a phone hooked up to a recording device at the
Hillside Police Station. With the written consent of both Agent
Huff and Robinson, their phone conversations with Manuel were
recorded. This recording, too, was placed into evidence.
In this conversation, Manuel agreed to deliver cocaine to
Robinson's buyer. He told Robinson and Huff to meet him at 7650
Greenwood in Chicago. This location, said Robinson, was a
residence where he typically met with Manuel. Robinson had been
there numerous times before.
Robinson, wearing a "body wire" (recording device), rode
with Huff to this location. MEG officers Lewis and Beavers,
riding in another unmarked car, were among the approximately 20
State police, Chicago police, and Cook County Sheriff's officers
assigned to the operation to provide back-up.
At about 4:15 p.m., Robinson arrived at 7650 Greenwood. He
got out of the car alone and went to the second-floor residence.
Manuel called him there and told him to wait for him. Robinson
went outside for a while, then returned to the residence, and
received a second call from Manuel at about 4:30 p.m. During
this second conversation Robinson told Manuel to be sure to bring
him four ounces of "raw" (powder cocaine) to make up for his last
bad deal.
Robinson went back outside and Manuel arrived at about 5
p.m., riding in a cream-colored Cadillac driven by a man later
identified as (co-defendant) Patterson.[fn1] Patterson went
inside the residence, but Manuel met with Robinson in the street
and then came over to meet Huff, who was sitting in the car.
After meeting Huff, Manuel told Robinson to follow him. Manuel
got back into his Cadillac with Patterson and drove off.
Robinson attempted to follow, but Patterson began driving
fast and "crazy." Huff called off the deal and the officers re-
grouped at a police station at 71st and Cottage Grove. From this
location Robinson again paged Manuel.
Manuel returned the call and Robinson complained about his
driving. Manuel explained that he saw a car following them and
thought it might be the police. Robinson allayed Manuel's fears
by explaining that the car following them was Huff's "security."
Having been reassured, Manuel again agreed to go through with the
deal. He told them to meet him in the Walgreen's parking lot at
127th and Halsted.
Officer Judge testified at trial. He was part of the
surveillance team providing back-up for the drug purchase.
Before Robinson and Huff arrived at the Walgreen's parking lot,
Officer Judge noticed a blue Nissan Maxima, with license plate
number WXH 925, enter the Walgreen's parking lot. A man he
identified as Patterson drove the car into the lot, parked it,
and then got into a cream-colored Cadillac. The officer
identified Manuel as the driver of the Cadillac. The Cadillac
then left the parking lot. Later, at about 6 p.m., Robinson and
Huff pulled into the parking lot.
According to Robinson's testimony, MEG agents Lewis and
Beavers, who had been identified as Huff's "security," followed
them into the Walgreen's parking lot. Soon the cream-colored
Cadillac pulled into the lot. Patterson got out of the Cadillac
and went into the Walgreen's store. Manuel walked over to
Robinson and asked to meet Huff's "security." Huff and Robinson
then brought Manuel over to the other car, where he shook hands
with Officer Lewis. Officer Lewis showed Manuel a black money
bag containing $7,000. He did not turn over the money to Manuel.
Manuel, Robinson testified, seemed uneasy. He walked around
the officers' car and suggested that Huff's "security" looked
like detectives. Nevertheless, he walked back to Robinson's car
with Robinson and Huff, got in, and negotiated with Huff for the
sale of the cocaine.
Huff told Manuel she would not pay until she saw the drugs.
Manuel handed a car key to Robinson and told him the key belonged
to the blue Nissan Maxima parked in the lot. The drugs were in
the car, he said. The three of them exited Robinson's car. With
Manuel's permission, Robinson gave the key to Huff and she walked
over to the Maxima. When Huff started to open the passenger
compartment of the car, Manuel corrected her and told her to open
the trunk. Huff opened the trunk, but it appeared empty. Then
Manuel came over and pulled up the lining in the trunk to expose
a brown paper bag. Huff retrieved the bag from the trunk and
looked inside. She saw two plastic bags, one containing off-
white or brownish "chunks," and a second containing an off-white
powder.
Huff said the stuff "looked good." This was a signal to the
many officers in the area to move in and effect the arrest of
Manuel and Patterson. Within minutes, both Manuel and Patterson
were arrested in the Walgreen's parking lot. Neither of them was
found to be in possession of any weapons.
Along with the testimony of Agent Huff, Agent Lewis, and
Chris Robinson, the State presented the testimony of Richard
Paulas, Assistant Director of the Illinois State Police Lab at
Maywood. In 1993, he had been working as a forensic chemist at
the facility and performed identifying tests on the substances
Agent Huff recovered from Manuel and suspected to be cocaine.
Paulas testified that the "chunky" off-white substance found in
the plastic bag marked as exhibit 3A weighed 243.0 grams.
Further tests indicated that the substance contained cocaine in a
"free base" form. The other plastic bag, marked as exhibit 3B,
contained a more powdery substance. This, too, tested positive
for the presence of cocaine, in a "salt" form. The form of the
cocaine, Paulas explained, accounted for the different ways the
two substances reacted to the various tests.
Paulas did not determine the purity of the substances and
did not know the percentage of cocaine in the two samples. He
testified only that both substances tested positive for the
presence of cocaine in each of the three confirmation tests he
performed.
In addition to the live witness testimony, the State offered
into evidence the tape recordings of phone conversations Manuel
had with Robinson and Agent Huff, as well as recordings obtained
from the body wire worn by Robinson during the course of the drug
transaction. A certified copy of Manuel's application for
license number WXH 925, registered to a blue Nissan Maxima, also
was admitted into evidence.
The following stipulation by the State and defense counsel
also was entered:
"It would be stipulated between the parties, the People
of the State of Illinois and the defense, between
defense counsel Deborah Grohs and Kevin Smith, that the
recordings and conversations were made pursuant to
Chapter 725, Illinois Compiled Statues, Article 108A,
and that Larry Wayne, AKA Chris Robinson, consented for
all recorded conversations, and the conversations were
recorded on April 14, 1993, and April 15th, 1993, and
the equipment to record the conversations was in proper
working condition, and accurately recorded the
conversations on tape, and the chain of custody of all
tape recordings was correct and proper at all times,
and that each original tape contains an accurate
recording of the conversations that occurred, that all
copies of the tapes are true and accurate reproductions
of the original tapes, and that Northeast Metropolitan
Enforcement Group Agent Yorli Huff and Larry Wayne, AKA
Christopher Robinson, listened to all of the tapes and
assisted in the preparation of the transcripts of all."
The defense presented no witnesses. After hearing arguments
by counsel and instructions from the court, the jury found
defendant guilty of delivering more than 100 grams, but less than
400 grams, of cocaine.
A post-trial motion was filed. Before sentencing, the trial
court addressed this motion, refuted each and every issue raised,
and denied the motion for new trial. Manuel then was sentenced
to 12 years imprisonment.
DECISION
Motion to Suppress State's Use of Audiotapes
The first issue on appeal is whether the trial court erred
when it refused to suppress the audio tape-recordings of
conversations between Manuel and the confidential informant,
Chris Robinson. Manuel contends the State did not comply with
the requirements of article 108A-3 of the Code of Criminal
Procedure (725 ILCS 5/108A-3 (West 1994)), when it obtained
judicial approval for the use of an eavesdropping device.
Article 108A-3 states, in pertinent part:
"(a) Where any one party to a conversation to occur in
the future has consented to the use of an eavesdropping
device to overhear or record the conversation, a judge
may grant approval to an application to use an
eavesdropping device pursuant to the provisions of this
section.
Each application for an order authorizing or
subsequently approving the use of an eavesdropping
device shall be made in writing upon oath or
affirmation to a circuit judge, or an associate judge
assigned for such purpose pursuant to Section 108A-1 of
this Code, and shall state the applicant's authority to
make such application. Each application shall include
the following:
***
(2) ***(c) the identity of the party to the expected
conversation consenting to the use of an eavesdropping
device"
In the present case, the confidential informant, Chris
Robinson, gave written consent to the overhear and recording of
conversations he had with the defendant. However, the article
108A-3 application stated that "Larry Wayne (alias)" was the
consenting party. Also, the consent form Robinson signed
identified Robinson as "Larry Wayne (alias)" and that is how
Robinson signed the form.
Manuel contends that the State's use of an alias when
identifying Robinson as the consenting party was legally
insufficient and the trial court should have suppressed all audio
tape-recordings to which Robinson consented.
In response, the State argues the trial court properly
admitted the audiotapes into evidence. The court's ruling, says
the State, may be supported for three separate reasons: (1) the
State was not required to obtain section 108A-3 judicial approval
for these recordings, so any alleged defect in the application is
immaterial; (2) identifying the consenting party by an alias is
legally sufficient under section 108A-3; and (3) even if the
article 108A application was not legally proper, the error was
harmless.
In People v. Herrington, 163 Ill. 2d 507, 645 N.E.2d 957
(1994), the supreme court reversed the trial court's suppression
of an audiotape obtained under conditions nearly identical to
this case. The Herrington court ruled that the audiotape of the
conversation between the victim of a sexual offense and the
perpetrator was admissible without article 108A authorization,
where the victim telephoned the perpetrator from the police
station, at the direction of the police, and the conversation was
recorded with the victim's permission.
Reading into the eavesdropping statute (720 ILCS 5/14-2
(West 1994)) an exclusion where the person consenting to the
recording is also a party to the conversation, the Herrington
court said,
"The recording of a conversation by a party to that
conversation was simply a means of preserving a more
accurate account of what he had heard." (Emphasis
added.) Herrington, 163 Ill. 2d at 510.
See also People v. Siwek, 284 Ill. App. 3d 7, 671 N.E.2d 363
(1996) (where consent is given by one party to the conversation,
the other party has no legitimate expectation of privacy and
eavesdropping does not occur).
Even if we were to ignore the clear directive of Herrington
and interpret the eavesdropping statute as requiring article 108A
judicial authorization where the conversation is being recorded
for law enforcement purposes, and the targeted subject is unaware
of the recording of his conversation, there is no basis for
suppressing the audiotapes in this case. The State applied for
and obtained article 108A authorization for recording Manuel's
conversations with Robinson. We find no principled reason for
invalidating the judicial authorization that was granted simply
because the State's application identified the consenting party
by an alias.
The statute states that the application must include "the
identity of the party to the expected conversation consenting to
the use of an eavesdropping device." The statute does not
require the consenting party to be identified in any particular
way.
A defendant's Fourth Amendment rights are not abridged when
an affiant to a search warrant uses a fictitious name. See
People v. Stansberry, 47 Ill. 2d 541, 268 N.E.2d 431 (1971);
People v. O'Kiersey, 46 Ill. 2d 198, 263 N.E.2d 488 (1970). An
affidavit given for the purpose of obtaining article 108A
authorization for recording a defendant's conversations is
analogous to an application for a search warrant. The affiant's
use of an alias is acceptable where the issuing judge is told the
name is fictitious.
There is no allegation that the informant does not exist,
nor is there any doubt that Robinson exists, since he testified
at trial. Also, there is no question that the judge issuing the
article 108A authorization was aware that the affiant's name was
an alias, since that fact was noted in the affidavit.
The informant did not provide reasonable grounds for the
judge's order. He was not asked to. That information came from
law enforcement agents. The only purpose of the informant's
affidavit was to establish that one party to the anticipated
conversations in fact consented to the recording. At trial, the
defense stipulated to the fact that "Larry Wayne, AKA Chris
Robinson," consented to the recording of his conversations with
Manuel.
Since the purpose and reasoning behind requiring article
108A authorization were satisfied and the State gained no
tactical advantage by using an alias, any technical defect in the
State's compliance with the statutory requirements of article
108A does not require suppression. See People v. O'Toole, 226
Ill. App. 3d 974, 590 N.E.2d 950 (1992)(where the error could not
have altered the trial court's determination that an
eavesdropping device should have been authorized, the error
doesn't require suppression); People v. Rogers, 141 Ill. App. 3d
374, 490 N.E.2d 133 (1986).
For all the reasons stated above, the motion to suppress was
properly denied.
Other Crimes Evidence
In his second issue on appeal, Manuel contends that the
trial court erred in allowing the State to introduce "other
crimes" evidence, i.e., evidence of his previous drug deals with
Robinson. The trial court ruled that this evidence was
admissible as "course of conduct" evidence. We agree.
This writer has addressed the issue elsewhere:
"Any analysis of FRE 404(b) must be confined to other
crimes, wrongdoings, or acts. That is, the conduct
must have been extrinsic to the matter being tried, not
contained in it, not part of it. Courts also call this
extrinsic conduct evidence "other acts" or "uncharged
misconduct" evidence. For example, a defendant's prior
heroin sale to Adam is extrinsic to the charge that he
sold heroin to Baker. The prior sale may be offered to
prove the defendant's knowledge or intent in connection
with the sale to Baker. It may not be offered as
character evidence, that is, to show he is the kind of
person who is more likely to have made the sale to
Baker.
When the prior conduct is intrinsic to the matter
being charged, belonging to it, part of it, or, as some
cases say "inextricably intertwined" or a "continuing
course of conduct," FRE 404(b) is not implicated, and
the general principles of relevance apply. Intrinsic
evidence can be part of the episode being tried, or it
can consist of necessary preliminaries to the matter
being tried." Mauet, Wolfson, Trial Evidence, ch. V,
p. 102 (1997).
Illinois has adopted the same treatment of "other crimes"
evidence. See People v. Bartall, 98 Ill. 2d 294, 456 N.E.2d 59
(1983); People v. Davis, 248 Ill. App. 3d 886, 891, 617 N.E.2d 1381 (1993) ("other offenses" or "extrinsic acts" evidence
includes not just offenses but other bad or wrongful acts and may
not be admitted to demonstrate defendant's propensity to commit
the crime charged, but may be admitted if it is relevant to
establish any other material question). See also, Cleary and
Graham's Handbook of Illinois Evidence (6th edition 1994),
article IV, 404.5, p. 218:
"Moreover, where the evidence of the act and the
evidence of the crime charged are inextricably
intertwined, the act is not extrinsic and the rule
relating to 'other crimes' evidence is not implicated,
simply because such evidence formed an integral and
natural part of the witness's account of the
circumstances surrounding the offenses for which the
defendant was indicted."
In the present case, Robinson's testimony, as well as the
references in the audiotapes to Robinson's previous drug deals
with Manuel, were not, strictly speaking, "other crimes"
evidence. Though the prior deals were not part of the same
episode, they were a necessary preliminary to the current
offense. Thus, the rules of evidence concerning "other crimes"
evidence was not implicated and the evidence was admissible under
ordinary relevancy principles.
In this case, the evidence was relevant to show Manuel's
course of conduct and his illicit relationship with Robinson.
Though defense counsel did not actually raise an entrapment
defense, references were made to defendant being "ensnared" by
the government and to Robinson's desire to cut himself a better
deal. The State was entitled, therefore, to show Manuel's
willingness to be involved with someone he had been dealing with.
The evidence also provided an explanation of an aspect of
the crime not otherwise understandable. That is, the
conversations regarding the prior sale of cocaine to Robinson in
which the quality of cocaine had been bad explained why Manuel
delivered an additional four ounces of cocaine in addition to the
nine ounces of cocaine bargained for by Huff.
Even if the evidence were "other crimes" evidence, it would
be admissible if offered for any purpose other than to establish
character and propensity to commit the crime. See People v.
LeCour, 273 Ill. App. 3d 1003, 652 N.E.2d 1221 (1995). Intent,
knowledge, purpose, motive, common design, plan, scheme, absence
of mistake, opportunity or preparation, or the circumstances of
the crime that would be otherwise unclear are proper and valid
reasons for admitting "other crimes" evidence. People v.
Kimbrough, 138 Ill. App. 3d 481, 485 N.E.2d 1292 (1985).
Whether we analyze the admission of the evidence of prior
drug deals with Robinson as "other crimes" evidence or merely
assess the evidence under normal relevancy standards, we find no
abuse of discretion in the trial court's decision to admit this
evidence.
Audiotapes and their transcripts
The next two issues concern the audiotapes and their
transcripts. Defendant contends that the trial court erred
because it allowed the jury "unlimited access" to the transcripts
throughout trial and because it did not instruct the jury the
transcripts were not evidence. Manuel also complains the trial
court should not have allowed the audiotapes to go into the jury
room during deliberations.
With regard to the transcripts, we find no abuse of
discretion in the trial court's actions. When the transcripts
were first distributed to the jurors during Robinson's testimony,
defense counsel complained to the judge that the jurors were
reading them instead of listening to the testimony. The court
refused to take the transcripts away because the State said the
transcripts were going to be used during Robinson's examination.
Defense counsel then asked for alternative relief --- that the
jury be instructed to stop reading the transcripts until directed
to do so. The court instructed the jury according to counsel's
suggestion.
Later on, when the State completed its examination of
Robinson, defense counsel again complained that the jury had been
reading the transcripts even when the audiotapes were not being
played. The court said, "I wish you would have said something
before." The court then immediately had the transcripts
collected from the jury.
The trial court, in granting the alternative relief,
corrected the problem perceived by defense counsel. Later, when
the same problem was brought to his attention, the transcripts
were removed.
There is no evidence of prejudice stemming from the court's
rulings, nor does defendant suggest in what way he was
prejudiced. We find nothing inappropriate about the court's
actions. We also note defendant has not cited a single case in
support of his claim that the court erred.
In addition, the trial court properly instructed the jury
with regard to the transcripts. First, when the trial court
distributed the transcripts to the jurors, it told them the
transcripts were to be only used as an aid and were not to be
considered evidence themselves. Later, at the close of the
trial, the court instructed the jurors to disregard testimony or
evidence that had been refused or stricken; that evidence
received for a limited purpose should not be considered for any
other purpose; and the evidence to be considered consisted only
of the testimony and exhibits entered into evidence. The
transcripts were not entered into evidence or provided to the
jury during deliberations. It should be noted, too, that defense
counsel never requested a specific instruction regarding the
transcripts at the close of trial.
Because the instructions given by the court, taken as a
whole, properly instructed the jurors regarding the evidence,
there was no error caused by the court's failure to specifically
instruct the jurors, at the close of trial, that the transcripts
were not evidence.
We also find no error in the trial court's exercise of its
discretion when it decided, over defense objection, to send the
audiotapes in with the jury during deliberations. We see no
reason to treat audiotapes any differently than other evidentiary
exhibits. Such evidence may be used by the jury during
deliberations at the discretion of the trial court. People v.
Rogers, 123 Ill. 2d 487, 528 N.E.2d 667 (1988) (the decision of
whether to allow the jurors to take exhibits into the jury room
is left to the sound discretion of the trial court).
In this case, the defense made several claims regarding the
quality of the tapes and suggested that the State "created" the
transcripts because the tapes were not understandable. Under
these circumstances, it was appropriate for the jurors to have
access to the tapes during deliberations so that they could
determine, for themselves, the extent to which the tapes
confirmed the State's claim that defendant willingly was involved
in the delivery of an illegal substance.
Sentence
Defendant contends the trial court abused its discretion
when it sentenced him. He claims the trial court relied on two
improper aggravating factors -- the seriousness of the societal
harm caused by drug-related crime and the compensation he
received for committing the crime. These factors are implicit in
the offense, says defendant, and should not have been considered
in aggravation. Defendant also contends that the trial court
failed to consider his rehabilitative potential -- the fact he
had no prior convictions or juvenile record and had previously
attended college --- when imposing sentence.
As the State points out, no post-sentencing motion was filed
in this case and under the mandates of section 5-8-1(c) of the
Unified Code of Corrections (730 ILCS 5/5-8-1(c)), as interpreted
by the supreme court in People v. Reed, 177 Ill. 2d 389, 686 N.E.2d 584 (1997), this issue is waived.
Even if the issue were not waived, the record does not
support defendant's position. The record shows during the
sentencing hearing defense counsel suggested to the court that a
number of factors in mitigation were present, but that none of
the aggravating factors existed. In response, the court
indicated that it saw things differently. Then the court went
through the list of aggravating factors, commenting on each.
Though no one was "injured" by this offense in the
traditional sense, the court said that the sale of drugs causes
harm to everyone in the chain of purchase, including children.
The court also found the second aggravating factor -- receiving
remuneration -- applied since Manuel was in the business of
selling drugs for profit. The court also noted the evidence
indicated Manuel had been in the drug business for some time.
Though Manuel had no prior arrests or convictions, the court said
it could not ignore the evidence of Manuel's criminal history --
that this was not a one time, isolated incident. The court also
considered that no one induced or forced Manuel to commit the
crime.
There is nothing in the court's comments which indicate it
improperly emphasized any of the aggravating factors. The
court's remarks indicate only that it was taking into account the
nature of the offense. Nor did the court fail to consider
Manuel's rehabilitative potential.
A trial court's decision on the proper sentence to be
imposed, especially when it is within the statutory range, is
entitled to great deference. People v. Miller, 286 Ill. App. 3d
297, 676 N.E.2d 309 (1997). The trial judge is in a better
position to assess the situation and determine a proper sentence.
On review, it is presumed the trial court gave proper
consideration to all factors, including rehabilitative potential,
and the defendant has the burden of affirmatively showing the
contrary. Miller, 286 Ill. App. 3d at 304. A sentence will not
be altered on review unless the trial court abused its
discretion. People v. Streit, 142 Ill. 2d 13, 19, 566 N.E.2d 1351 (1991).
There has been no affirmative showing the trial court used
improper reasoning when fashioning a sentence, nor do we find the
court abused its discretion by imposing a 12 year sentence when
the statutory range was between 9 and 40 years.
Appeal of the Dismissal of the Post-Conviction Petition
In the consolidated appeal from the dismissal of Manuel's
post-conviction petition without an evidentiary hearing, Manuel
argues only one issue: the ineffective assistance of trial
counsel. He contends his trial counsel was ineffective because
(1) a "fatally flawed" entrapment defense was presented, (2) no
investigation was made regarding the whereabouts of the blue
Nissan Maxima, and (3) the cross-examination of State witnesses
was "meaningless."
In People v. Olinger, 176 Ill. 2d 326, 341-42, 680 N.E.2d 321 (1997), our supreme court said:
"A defendant is not entitled to an evidentiary hearing
on a post-conviction petition as a matter of right;
rather an evidentiary hearing is required only when the
allegations of the petition, supported by the record or
accompanying affidavits, makes a substantial showing of
a violation of a constitutional right."
The only constitutional right defendant claims he was denied
is the effective assistance of counsel. In order for a defendant
to succeed on a claim of ineffective assistance of counsel,
however, he must show (1) that his counsel's performance was
deficient in that it fell below an objective standard of
reasonableness, and (2) that counsel's deficient performance so
prejudiced defendant that there is a reasonable probability that
the outcome of the trial would have been different without
counsel's errors. Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984); People v. Simms, 168 Ill. 2d 176, 659 N.E.2d 922 (1995). A reviewing court may reject a claim
of ineffective assistance of counsel by finding that defendant
was not prejudiced by counsel's representation without
determining whether counsel's performance was deficient. People
v. Lear, 175 Ill. 2d 262, 677 N.E.2d 895 (1997); People v.
Erickson, 161 Ill. 2d 82, 90, 641 N.E.2d 455 (1994).
The first argument -- that one of counsel's "main focus" was
an entrapment defense -- is not supported by the record. As
defendant acknowledges, counsel never said the defense would
rely on entrapment. To show that one of counsel's "main focus"
was entrapment, defendant makes reference to a single statement
by counsel. We have reviewed the transcripts of this two-day
trial. The record does not support defendant's claim that this
isolated reference to entrapment constituted a "focus" on
entrapment as a defense.
The next point --- counsel's failure to investigate the
whereabouts of the blue Nissan Maxima --- is irrelevant. In his
argument, Manuel merely speculates that the Maxima was an
"evidentiary key to the defense." There is nothing to support
this claim, nor can we imagine in what way the Maxima could have
assisted Manuel's defense. Simply, counsel's failure to
investigate this collateral matter could not be evidence of a
deficiency.
Lastly, Manuel claims trial counsel's cross-examination of
State witnesses was "meaningless." Once again, however, the
record does not support Manuel's claim. In fact, during the
cross-examination of Huff, counsel succeeded in showing her
hostility to the defense by her reluctance to answer simple
questions. The court commented on this and rebuked the witness
for her obstructionist attitude. This may have been defense
counsel's strategy -- to decrease this witness's credibility in
the eyes of the jurors and to curry some sympathy.
In light of the overwhelming evidence, defense counsel was
left with little else to do. In any event, we cannot say the
record demonstrates trial counsel failed to subject the State's
case to "meaningful adversarial testing." See People v. Nunez,
263 Ill. App. 3d 740, 635 N.E.2d 718, (1994).
Since there is no basis to defendant's claim that he
received ineffective assistance of counsel, it was not error for
the trial court to have dismissed the post-conviction petition
without an evidentiary hearing.
CONCLUSION
Defendant Gerald Manuel's conviction for the delivery of
more than 100 grams, but less than 400 grams, of cocaine and the
12 year sentence imposed are affirmed. The trial court's
dismissal of defendant's post-conviction petition is also
affirmed.
AFFIRMED.
CERDA, P.J. and McNAMARA, J., concur.
[fn1]Patterson's bench trial for the same offense was held
simultaneously with Manuel's jury trial.
December 31, 1997
Nos. 1-95-4163, 1-96-2144 Cons.
THE PEOPLE OF THE STATE OF ILLINOIS, ) APPEAL FROM THE
) CIRCUIT COURT OF
Plaintiff-Appellee, ) COOK COUNTY.
)
v. )
)
GERALD MANUEL, ) HONORABLE
) DANIEL J. KELLEY,
Defendant-Appellant. ) JUDGE PRESIDING.
JUSTICE WOLFSON delivered the opinion of the court:
Before his cocaine delivery trial, the defendant Gerald
Manuel challenged the admissibility of recordings of his
telephone conversations with an informant and a drug enforcement
agent. He was unsuccessful. At trial, the jury heard the
conversations where the defendant negotiated terms and conditions
for the sale of cocaine.
After a jury trial, Manuel was found guilty of delivering
more than 100 grams, but less than 400 grams, of cocaine in
violation of Ill. Rev. Stat. 1991, ch. 56«, par. 1401(a)(2)(B),
(now 720 ILCS 570/401(a)(2)(B) (West 1992)). The sentencing
range for this offense is 9 to 40 years. Manuel was sentenced to
12 years imprisonment.
After trial, Manuel filed an appeal from his conviction and
sentence. Before any appeal briefs were submitted, however,
Manuel filed a pro se post-conviction petition. The trial court
summarily dismissed the post-conviction petition without an
evidentiary hearing.
Now, in this consolidated appeal, we address Manuel's direct
appeal from his conviction, as well as his appeal from the denial
of post-conviction relief. We affirm the trial court's orders in
both proceedings.
FACTS
At trial, the following evidence was presented:
Chris Robinson (Robinson) was a convicted felon with an
extensive criminal history. Then, between September 1992 and
January 1993, he came under investigation for dealing in cocaine.
He made five deliveries to undercover agents during this time
period and a warrant was issued for his arrest.
On April 6, 1993, Robinson turned himself in to the FBI. He
later pled guilty to the five deliveries. He knew he could be
facing a sentence of up to 150 years imprisonment because of the
five deliveries and his past criminal history. Therefore, when
the FBI asked for his cooperation, he agreed to be an informant
in the hope of obtaining leniency.
On April 8, 1993, while represented by legal counsel,
Robinson signed an agreement to cooperate with the government law
enforcement officers in exchange for a promise that his
cooperation would be taken into consideration at the time of
sentencing. Robinson then disclosed information about one of his
Chicago drug suppliers, known to him as "Tate," but later
identified as defendant, Gerald Manuel. Robinson said he had
been obtaining drugs from Manuel for the past year. Robinson
would purchase between two and 14 ounces of cocaine from Manuel
every week or two. Robinson also socialized with Manuel over the
past year. Their relationship was friendly.
In addition to revealing this source, Robinson agreed to
arrange for an undercover agent to purchase cocaine from Manuel
and to accompany this agent at the purchase. Sometime on April
12th or 13th, Robinson paged Manuel from Springfield and, when
Manuel called back, made arrangements for this drug purchase.
On April 14th Robinson paged Manuel again, this time from
the offices of the Springfield State Police. Robinson explained
that whenever he paged Manuel he entered a special code number --
"223" -- which identified him to Manuel as the caller. Manuel
phoned Robinson at the station. The conversation was recorded
with Robinson's permission. A tape-recording of this
conversation was entered into evidence.
In this conversation, Robinson told Manuel he had a buyer --
a female -- who was willing to purchase ¬ of a "key" or "kilo" of
cocaine (about nine ounces) for $7,000. The $7,000 price
apparently was high, but Robinson told Manuel he could "juice"
the buyer. Robinson explained to the jury this meant Manuel
could overcharge her.
During this conversation, Robinson told Manuel his last
delivery was "no good" and he lost "3Gs" because of the poor
quality of the cocaine that was delivered. Robinson explained to
the jury "3Gs" meant $3.000.
On April 15, 1993, Robinson drove to the Chicago area in the
company of FBI Agent Ranck and Illinois State Police Officer
Marks. At about 1 p.m., Robinson met Agent Yorli Huff, a female
officer for the Northeast Metropolitan Enforcement Group (NEMEG,
now called MEG of Cook County), a multi-jurisdictional drug task
force. They met at the Hillside Police Department at 30 Wolf
Road. From this station, Robinson paged Manuel. Manuel answered
the page, calling a phone hooked up to a recording device at the
Hillside Police Station. With the written consent of both Agent
Huff and Robinson, their phone conversations with Manuel were
recorded. This recording, too, was placed into evidence.
In this conversation, Manuel agreed to deliver cocaine to
Robinson's buyer. He told Robinson and Huff to meet him at 7650
Greenwood in Chicago. This location, said Robinson, was a
residence where he typically met with Manuel. Robinson had been
there numerous times before.
Robinson, wearing a "body wire" (recording device), rode
with Huff to this location. MEG officers Lewis and Beavers,
riding in another unmarked car, were among the approximately 20
State police, Chicago police, and Cook County Sheriff's officers
assigned to the operation to provide back-up.
At about 4:15 p.m., Robinson arrived at 7650 Greenwood. He
got out of the car alone and went to the second-floor residence.
Manuel called him there and told him to wait for him. Robinson
went outside for a while, then returned to the residence, and
received a second call from Manuel at about 4:30 p.m. During
this second conversation Robinson told Manuel to be sure to bring
him four ounces of "raw" (powder cocaine) to make up for his last
bad deal.
Robinson went back outside and Manuel arrived at about 5
p.m., riding in a cream-colored Cadillac driven by a man later
identified as (co-defendant) Patterson.[fn1] Patterson went
inside the residence, but Manuel met with Robinson in the street
and then came over to meet Huff, who was sitting in the car.
After meeting Huff, Manuel told Robinson to follow him. Manuel
got back into his Cadillac with Patterson and drove off.
Robinson attempted to follow, but Patterson began driving
fast and "crazy." Huff called off the deal and the officers re-
grouped at a police station at 71st and Cottage Grove. From this
location Robinson again paged Manuel.
Manuel returned the call and Robinson complained about his
driving. Manuel explained that he saw a car following them and
thought it might be the police. Robinson allayed Manuel's fears
by explaining that the car following them was Huff's "security."
Having been reassured, Manuel again agreed to go through with the
deal. He told them to meet him in the Walgreen's parking lot at
127th and Halsted.
Officer Judge testified at trial. He was part of the
surveillance team providing back-up for the drug purchase.
Before Robinson and Huff arrived at the Walgreen's parking lot,
Officer Judge noticed a blue Nissan Maxima, with license plate
number WXH 925, enter the Walgreen's parking lot. A man he
identified as Patterson drove the car into the lot, parked it,
and then got into a cream-colored Cadillac. The officer
identified Manuel as the driver of the Cadillac. The Cadillac
then left the parking lot. Later, at about 6 p.m., Robinson and
Huff pulled into the parking lot.
According to Robinson's testimony, MEG agents Lewis and
Beavers, who had been identified as Huff's "security," followed
them into the Walgreen's parking lot. Soon the cream-colored
Cadillac pulled into the lot. Patterson got out of the Cadillac
and went into the Walgreen's store. Manuel walked over to
Robinson and asked to meet Huff's "security." Huff and Robinson
then brought Manuel over to the other car, where he shook hands
with Officer Lewis. Officer Lewis showed Manuel a black money
bag containing $7,000. He did not turn over the money to Manuel.
Manuel, Robinson testified, seemed uneasy. He walked around
the officers' car and suggested that Huff's "security" looked
like detectives. Nevertheless, he walked back to Robinson's car
with Robinson and Huff, got in, and negotiated with Huff for the
sale of the cocaine.
Huff told Manuel she would not pay until she saw the drugs.
Manuel handed a car key to Robinson and told him the key belonged
to the blue Nissan Maxima parked in the lot. The drugs were in
the car, he said. The three of them exited Robinson's car. With
Manuel's permission, Robinson gave the key to Huff and she walked
over to the Maxima. When Huff started to open the passenger
compartment of the car, Manuel corrected her and told her to open
the trunk. Huff opened the trunk, but it appeared empty. Then
Manuel came over and pulled up the lining in the trunk to expose
a brown paper bag. Huff retrieved the bag from the trunk and
looked inside. She saw two plastic bags, one containing off-
white or brownish "chunks," and a second containing an off-white
powder.
Huff said the stuff "looked good." This was a signal to the
many officers in the area to move in and effect the arrest of
Manuel and Patterson. Within minutes, both Manuel and Patterson
were arrested in the Walgreen's parking lot. Neither of them was
found to be in possession of any weapons.
Along with the testimony of Agent Huff, Agent Lewis, and
Chris Robinson, the State presented the testimony of Richard
Paulas, Assistant Director of the Illinois State Police Lab at
Maywood. In 1993, he had been working as a forensic chemist at
the facility and performed identifying tests on the substances
Agent Huff recovered from Manuel and suspected to be cocaine.
Paulas testified that the "chunky" off-white substance found in
the plastic bag marked as exhibit 3A weighed 243.0 grams.
Further tests indicated that the substance contained cocaine in a
"free base" form. The other plastic bag, marked as exhibit 3B,
contained a more powdery substance. This, too, tested positive
for the presence of cocaine, in a "salt" form. The form of the
cocaine, Paulas explained, accounted for the different ways the
two substances reacted to the various tests.
Paulas did not determine the purity of the substances and
did not know the percentage of cocaine in the two samples. He
testified only that both substances tested positive for the
presence of cocaine in each of the three confirmation tests he
performed.
In addition to the live witness testimony, the State offered
into evidence the tape recordings of phone conversations Manuel
had with Robinson and Agent Huff, as well as recordings obtained
from the body wire worn by Robinson during the course of the drug
transaction. A certified copy of Manuel's application for
license number WXH 925, registered to a blue Nissan Maxima, also
was admitted into evidence.
The following stipulation by the State and defense counsel
also was entered:
"It would be stipulated between the parties, the People
of the State of Illinois and the defense, between
defense counsel Deborah Grohs and Kevin Smith, that the
recordings and conversations were made pursuant to
Chapter 725, Illinois Compiled Statues, Article 108A,
and that Larry Wayne, AKA Chris Robinson, consented for
all recorded conversations, and the conversations were
recorded on April 14, 1993, and April 15th, 1993, and
the equipment to record the conversations was in proper
working condition, and accurately recorded the
conversations on tape, and the chain of custody of all
tape recordings was correct and proper at all times,
and that each original tape contains an accurate
recording of the conversations that occurred, that all
copies of the tapes are true and accurate reproductions
of the original tapes, and that Northeast Metropolitan
Enforcement Group Agent Yorli Huff and Larry Wayne, AKA
Christopher Robinson, listened to all of the tapes and
assisted in the preparation of the transcripts of all."
The defense presented no witnesses. After hearing arguments
by counsel and instructions from the court, the jury found
defendant guilty of delivering more than 100 grams, but less than
400 grams, of cocaine.
A post-trial motion was filed. Before sentencing, the trial
court addressed this motion, refuted each and every issue raised,
and denied the motion for new trial. Manuel then was sentenced
to 12 years imprisonment.
DECISION
Motion to Suppress State's Use of Audiotapes
The first issue on appeal is whether the trial court erred
when it refused to suppress the audio tape-recordings of
conversations between Manuel and the confidential informant,
Chris Robinson. Manuel contends the State did not comply with
the requirements of article 108A-3 of the Code of Criminal
Procedure (725 ILCS 5/108A-3 (West 1994)), when it obtained
judicial approval for the use of an eavesdropping device.
Article 108A-3 states, in pertinent part:
"(a) Where any one party to a conversation to occur in
the future has consented to the use of an eavesdropping
device to overhear or record the conversation, a judge
may grant approval to an application to use an
eavesdropping device pursuant to the provisions of this
section.
Each application for an order authorizing or
subsequently approving the use of an eavesdropping
device shall be made in writing upon oath or
affirmation to a circuit judge, or an associate judge
assigned for such purpose pursuant to Section 108A-1 of
this Code, and shall state the applicant's authority to
make such application. Each application shall include
the following:
***
(2) ***(c) the identity of the party to the expected
conversation consenting to the use of an eavesdropping
device"
In the present case, the confidential informant, Chris
Robinson, gave written consent to the overhear and recording of
conversations he had with the defendant. However, the article
108A-3 application stated that "Larry Wayne (alias)" was the
consenting party. Also, the consent form Robinson signed
identified Robinson as "Larry Wayne (alias)" and that is how
Robinson signed the form.
Manuel contends that the State's use of an alias when
identifying Robinson as the consenting party was legally
insufficient and the trial court should have suppressed all audio
tape-recordings to which Robinson consented.
In response, the State argues the trial court properly
admitted the audiotapes into evidence. The court's ruling, says
the State, may be supported for three separate reasons: (1) the
State was not required to obtain section 108A-3 judicial approval
for these recordings, so any alleged defect in the application is
immaterial; (2) identifying the consenting party by an alias is
legally sufficient under section 108A-3; and (3) even if the
article 108A application was not legally proper, the error was
harmless.
In People v. Herrington, 163 Ill. 2d 507, 645 N.E.2d 957
(1994), the supreme court reversed the trial court's suppression
of an audiotape obtained under conditions nearly identical to
this case. The Herrington court ruled that the audiotape of the
conversation between the victim of a sexual offense and the
perpetrator was admissible without article 108A authorization,
where the victim telephoned the perpetrator from the police
station, at the direction of the police, and the conversation was
recorded with the victim's permission.
Reading into the eavesdropping statute (720 ILCS 5/14-2
(West 1994)) an exclusion where the person consenting to the
recording is also a party to the conversation, the Herrington
court said,
"The recording of a conversation by a party to that
conversation was simply a means of preserving a more
accurate account of what he had heard." (Emphasis
added.) Herrington, 163 Ill. 2d at 510.
See also People v. Siwek, 284 Ill. App. 3d 7, 671 N.E.2d 363
(1996) (where consent is given by one party to the conversation,
the other party has no legitimate expectation of privacy and
eavesdropping does not occur).
Even if we were to ignore the clear directive of Herrington
and interpret the eavesdropping statute as requiring article 108A
judicial authorization where the conversation is being recorded
for law enforcement purposes, and the targeted subject is unaware
of the recording of his conversation, there is no basis for
suppressing the audiotapes in this case. The State applied for
and obtained article 108A authorization for recording Manuel's
conversations with Robinson. We find no principled reason for
invalidating the judicial authorization that was granted simply
because the State's application identified the consenting party
by an alias.
The statute states that the application must include "the
identity of the party to the expected conversation consenting to
the use of an eavesdropping device." The statute does not
require the consenting party to be identified in any particular
way.
A defendant's Fourth Amendment rights are not abridged when
an affiant to a search warrant uses a fictitious name. See
People v. Stansberry, 47 Ill. 2d 541, 268 N.E.2d 431 (1971);
People v. O'Kiersey, 46 Ill. 2d 198, 263 N.E.2d 488 (1970). An
affidavit given for the purpose of obtaining article 108A
authorization for recording a defendant's conversations is
analogous to an application for a search warrant. The affiant's
use of an alias is acceptable where the issuing judge is told the
name is fictitious.
There is no allegation that the informant does not exist,
nor is there any doubt that Robinson exists, since he testified
at trial. Also, there is no question that the judge issuing the
article 108A authorization was aware that the affiant's name was
an alias, since that fact was noted in the affidavit.
The informant did not provide reasonable grounds for the
judge's order. He was not asked to. That information came from
law enforcement agents. The only purpose of the informant's
affidavit was to establish that one party to the anticipated
conversations in fact consented to the recording. At trial, the
defense stipulated to the fact that "Larry Wayne, AKA Chris
Robinson," consented to the recording of his conversations with
Manuel.
Since the purpose and reasoning behind requiring article
108A authorization were satisfied and the State gained no
tactical advantage by using an alias, any technical defect in the
State's compliance with the statutory requirements of article
108A does not require suppression. See People v. O'Toole, 226
Ill. App. 3d 974, 590 N.E.2d 950 (1992)(where the error could not
have altered the trial court's determination that an
eavesdropping device should have been authorized, the error
doesn't require suppression); People v. Rogers, 141 Ill. App. 3d
374, 490 N.E.2d 133 (1986).
For all the reasons stated above, the motion to suppress was
properly denied.
Other Crimes Evidence
In his second issue on appeal, Manuel contends that the
trial court erred in allowing the State to introduce "other
crimes" evidence, i.e., evidence of his previous drug deals with
Robinson. The trial court ruled that this evidence was
admissible as "course of conduct" evidence. We agree.
This writer has addressed the issue elsewhere:
"Any analysis of FRE 404(b) must be confined to other
crimes, wrongdoings, or acts. That is, the conduct
must have been extrinsic to the matter being tried, not
contained in it, not part of it. Courts also call this
extrinsic conduct evidence "other acts" or "uncharged
misconduct" evidence. For example, a defendant's prior
heroin sale to Adam is extrinsic to the charge that he
sold heroin to Baker. The prior sale may be offered to
prove the defendant's knowledge or intent in connection
with the sale to Baker. It may not be offered as
character evidence, that is, to show he is the kind of
person who is more likely to have made the sale to
Baker.
When the prior conduct is intrinsic to the matter
being charged, belonging to it, part of it, or, as some
cases say "inextricably intertwined" or a "continuing
course of conduct," FRE 404(b) is not implicated, and
the general principles of relevance apply. Intrinsic
evidence can be part of the episode being tried, or it
can consist of necessary preliminaries to the matter
being tried." Mauet, Wolfson, Trial Evidence, ch. V,
p. 102 (1997).
Illinois has adopted the same treatment of "other crimes"
evidence. See People v. Bartall, 98 Ill. 2d 294, 456 N.E.2d 59
(1983); People v. Davis, 248 Ill. App. 3d 886, 891, 617 N.E.2d 1381 (1993) ("other offenses" or "extrinsic acts" evidence
includes not just offenses but other bad or wrongful acts and may
not be admitted to demonstrate defendant's propensity to commit
the crime charged, but may be admitted if it is relevant to
establish any other material question). See also, Cleary and
Graham's Handbook of Illinois Evidence (6th edition 1994),
article IV, 404.5, p. 218:
"Moreover, where the evidence of the act and the
evidence of the crime charged are inextricably
intertwined, the act is not extrinsic and the rule
relating to 'other crimes' evidence is not implicated,
simply because such evidence formed an integral and
natural part of the witness's account of the
circumstances surrounding the offenses for which the
defendant was indicted."
In the present case, Robinson's testimony, as well as the
references in the audiotapes to Robinson's previous drug deals
with Manuel, were not, strictly speaking, "other crimes"
evidence. Though the prior deals were not part of the same
episode, they were a necessary preliminary to the current
offense. Thus, the rules of evidence concerning "other crimes"
evidence was not implicated and the evidence was admissible under
ordinary relevancy principles.
In this case, the evidence was relevant to show Manuel's
course of conduct and his illicit relationship with Robinson.
Though defense counsel did not actually raise an entrapment
defense, references were made to defendant being "ensnared" by
the government and to Robinson's desire to cut himself a better
deal. The State was entitled, therefore, to show Manuel's
willingness to be involved with someone he had been dealing with.
The evidence also provided an explanation of an aspect of
the crime not otherwise understandable. That is, the
conversations regarding the prior sale of cocaine to Robinson in
which the quality of cocaine had been bad explained why Manuel
delivered an additional four ounces of cocaine in addition to the
nine ounces of cocaine bargained for by Huff.
Even if the evidence were "other crimes" evidence, it would
be admissible if offered for any purpose other than to establish
character and propensity to commit the crime. See People v.
LeCour, 273 Ill. App. 3d 1003, 652 N.E.2d 1221 (1995). Intent,
knowledge, purpose, motive, common design, plan, scheme, absence
of mistake, opportunity or preparation, or the circumstances of
the crime that would be otherwise unclear are proper and valid
reasons for admitting "other crimes" evidence. People v.
Kimbrough, 138 Ill. App. 3d 481, 485 N.E.2d 1292 (1985).
Whether we analyze the admission of the evidence of prior
drug deals with Robinson as "other crimes" evidence or merely
assess the evidence under normal relevancy standards, we find no
abuse of discretion in the trial court's decision to admit this
evidence.
Audiotapes and their transcripts
The next two issues concern the audiotapes and their
transcripts. Defendant contends that the trial court erred
because it allowed the jury "unlimited access" to the transcripts
throughout trial and because it did not instruct the jury the
transcripts were not evidence. Manuel also complains the trial
court should not have allowed the audiotapes to go into the jury
room during deliberations.
With regard to the transcripts, we find no abuse of
discretion in the trial court's actions. When the transcripts
were first distributed to the jurors during Robinson's testimony,
defense counsel complained to the judge that the jurors were
reading them instead of listening to the testimony. The court
refused to take the transcripts away because the State said the
transcripts were going to be used during Robinson's examination.
Defense counsel then asked for alternative relief --- that the
jury be instructed to stop reading the transcripts until directed
to do so. The court instructed the jury according to counsel's
suggestion.
Later on, when the State completed its examination of
Robinson, defense counsel again complained that the jury had been
reading the transcripts even when the audiotapes were not being
played. The court said, "I wish you would have said something
before." The court then immediately had the transcripts
collected from the jury.
The trial court, in granting the alternative relief,
corrected the problem perceived by defense counsel. Later, when
the same problem was brought to his attention, the transcripts
were removed.
There is no evidence of prejudice stemming from the court's
rulings, nor does defendant suggest in what way he was
prejudiced. We find nothing inappropriate about the court's
actions. We also note defendant has not cited a single case in
support of his claim that the court erred.
In addition, the trial court properly instructed the jury
with regard to the transcripts. First, when the trial court
distributed the transcripts to the jurors, it told them the
transcripts were to be only used as an aid and were not to be
considered evidence themselves. Later, at the close of the
trial, the court instructed the jurors to disregard testimony or
evidence that had been refused or stricken; that evidence
received for a limited purpose should not be considered for any
other purpose; and the evidence to be considered consisted only
of the testimony and exhibits entered into evidence. The
transcripts were not entered into evidence or provided to the
jury during deliberations. It should be noted, too, that defense
counsel never requested a specific instruction regarding the
transcripts at the close of trial.
Because the instructions given by the court, taken as a
whole, properly instructed the jurors regarding the evidence,
there was no error caused by the court's failure to specifically
instruct the jurors, at the close of trial, that the transcripts
were not evidence.
We also find no error in the trial court's exercise of its
discretion when it decided, over defense objection, to send the
audiotapes in with the jury during deliberations. We see no
reason to treat audiotapes any differently than other evidentiary
exhibits. Such evidence may be used by the jury during
deliberations at the discretion of the trial court. People v.
Rogers, 123 Ill. 2d 487, 528 N.E.2d 667 (1988) (the decision of
whether to allow the jurors to take exhibits into the jury room
is left to the sound discretion of the trial court).
In this case, the defense made several claims regarding the
quality of the tapes and suggested that the State "created" the
transcripts because the tapes were not understandable. Under
these circumstances, it was appropriate for the jurors to have
access to the tapes during deliberations so that they could
determine, for themselves, the extent to which the tapes
confirmed the State's claim that defendant willingly was involved
in the delivery of an illegal substance.
Sentence
Defendant contends the trial court abused its discretion
when it sentenced him. He claims the trial court relied on two
improper aggravating factors -- the seriousness of the societal
harm caused by drug-related crime and the compensation he
received for committing the crime. These factors are implicit in
the offense, says defendant, and should not have been considered
in aggravation. Defendant also contends that the trial court
failed to consider his rehabilitative potential -- the fact he
had no prior convictions or juvenile record and had previously
attended college --- when imposing sentence.
As the State points out, no post-sentencing motion was filed
in this case and under the mandates of section 5-8-1(c) of the
Unified Code of Corrections (730 ILCS 5/5-8-1(c)), as interpreted
by the supreme court in People v. Reed, 177 Ill. 2d 389, 686 N.E.2d 584 (1997), this issue is waived.
Even if the issue were not waived, the record does not
support defendant's position. The record shows during the
sentencing hearing defense counsel suggested to the court that a
number of factors in mitigation were present, but that none of
the aggravating factors existed. In response, the court
indicated that it saw things differently. Then the court went
through the list of aggravating factors, commenting on each.
Though no one was "injured" by this offense in the
traditional sense, the court said that the sale of drugs causes
harm to everyone in the chain of purchase, including children.
The court also found the second aggravating factor -- receiving
remuneration -- applied since Manuel was in the business of
selling drugs for profit. The court also noted the evidence
indicated Manuel had been in the drug business for some time.
Though Manuel had no prior arrests or convictions, the court said
it could not ignore the evidence of Manuel's criminal history --
that this was not a one time, isolated incident. The court also
considered that no one induced or forced Manuel to commit the
crime.
There is nothing in the court's comments which indicate it
improperly emphasized any of the aggravating factors. The
court's remarks indicate only that it was taking into account the
nature of the offense. Nor did the court fail to consider
Manuel's rehabilitative potential.
A trial court's decision on the proper sentence to be
imposed, especially when it is within the statutory range, is
entitled to great deference. People v. Miller, 286 Ill. App. 3d
297, 676 N.E.2d 309 (1997). The trial judge is in a better
position to assess the situation and determine a proper sentence.
On review, it is presumed the trial court gave proper
consideration to all factors, including rehabilitative potential,
and the defendant has the burden of affirmatively showing the
contrary. Miller, 286 Ill. App. 3d at 304. A sentence will not
be altered on review unless the trial court abused its
discretion. People v. Streit, 142 Ill. 2d 13, 19, 566 N.E.2d 1351 (1991).
There has been no affirmative showing the trial court used
improper reasoning when fashioning a sentence, nor do we find the
court abused its discretion by imposing a 12 year sentence when
the statutory range was between 9 and 40 years.
Appeal of the Dismissal of the Post-Conviction Petition
In the consolidated appeal from the dismissal of Manuel's
post-conviction petition without an evidentiary hearing, Manuel
argues only one issue: the ineffective assistance of trial
counsel. He contends his trial counsel was ineffective because
(1) a "fatally flawed" entrapment defense was presented, (2) no
investigation was made regarding the whereabouts of the blue
Nissan Maxima, and (3) the cross-examination of State witnesses
was "meaningless."
In People v. Olinger, 176 Ill. 2d 326, 341-42, 680 N.E.2d 321 (1997), our supreme court said:
"A defendant is not entitled to an evidentiary hearing
on a post-conviction petition as a matter of right;
rather an evidentiary hearing is required only when the
allegations of the petition, supported by the record or
accompanying affidavits, makes a substantial showing of
a violation of a constitutional right."
The only constitutional right defendant claims he was denied
is the effective assistance of counsel. In order for a defendant
to succeed on a claim of ineffective assistance of counsel,
however, he must show (1) that his counsel's performance was
deficient in that it fell below an objective standard of
reasonableness, and (2) that counsel's deficient performance so
prejudiced defendant that there is a reasonable probability that
the outcome of the trial would have been different without
counsel's errors. Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984); People v. Simms, 168 Ill. 2d 176, 659 N.E.2d 922 (1995). A reviewing court may reject a claim
of ineffective assistance of counsel by finding that defendant
was not prejudiced by counsel's representation without
determining whether counsel's performance was deficient. People
v. Lear, 175 Ill. 2d 262, 677 N.E.2d 895 (1997); People v.
Erickson, 161 Ill. 2d 82, 90, 641 N.E.2d 455 (1994).
The first argument -- that one of counsel's "main focus" was
an entrapment defense -- is not supported by the record. As
defendant acknowledges, counsel never said the defense would
rely on entrapment. To show that one of counsel's "main focus"
was entrapment, defendant makes reference to a single statement
by counsel. We have reviewed the transcripts of this two-day
trial. The record does not support defendant's claim that this
isolated reference to entrapment constituted a "focus" on
entrapment as a defense.
The next point --- counsel's failure to investigate the
whereabouts of the blue Nissan Maxima --- is irrelevant. In his
argument, Manuel merely speculates that the Maxima was an
"evidentiary key to the defense." There is nothing to support
this claim, nor can we imagine in what way the Maxima could have
assisted Manuel's defense. Simply, counsel's failure to
investigate this collateral matter could not be evidence of a
deficiency.
Lastly, Manuel claims trial counsel's cross-examination of
State witnesses was "meaningless." Once again, however, the
record does not support Manuel's claim. In fact, during the
cross-examination of Huff, counsel succeeded in showing her
hostility to the defense by her reluctance to answer simple
questions. The court commented on this and rebuked the witness
for her obstructionist attitude. This may have been defense
counsel's strategy -- to decrease this witness's credibility in
the eyes of the jurors and to curry some sympathy.
In light of the overwhelming evidence, defense counsel was
left with little else to do. In any event, we cannot say the
record demonstrates trial counsel failed to subject the State's
case to "meaningful adversarial testing." See People v. Nunez,
263 Ill. App. 3d 740, 635 N.E.2d 718, (1994).
Since there is no basis to defendant's claim that he
received ineffective assistance of counsel, it was not error for
the trial court to have dismissed the post-conviction petition
without an evidentiary hearing.
CONCLUSION
Defendant Gerald Manuel's conviction for the delivery of
more than 100 grams, but less than 400 grams, of cocaine and the
12 year sentence imposed are affirmed. The trial court's
dismissal of defendant's post-conviction petition is also
affirmed.
AFFIRMED.
CERDA, P.J. and McNAMARA, J., concur.
[fn1]Patterson's bench trial for the same offense was held
simultaneously with Manuel's jury trial.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
