Filed 4/29/10 NO. 4-09-0318
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellant, ) Circuit Court of
v. ) Macon County
CHARLES E. COLEMAN, ) No. 08CF1291
Defendant-Appellee. )
) Honorable
) Timothy J. Steadman,
) Judge Presiding.
_________________________________________________________________
PRESIDING JUSTICE MYERSCOUGH delivered the opinion of
the court:
The State appeals the trial court's April 2009 ruling
that certain statements of an alleged coconspirator of defendant,
Charles E. Coleman, were inadmissible hearsay. We reverse and
remand for further proceedings.
I. BACKGROUND
On September 9, 2008, the State charged defendant with
unlawful possession of cannabis with intent to deliver (720 ILCS
550/5(c) (West 2006)), unlawful possession of cannabis with an
unlawful-possession-of-cannabis conviction (720 ILCS 550/4(c)
(West 2006)), and two counts of unlawful possession of a con-
trolled substance with intent to deliver with a prior unlawful-
possession-of-a-controlled-substance-with-intent-to- deliver
conviction (720 ILCS 570/401(a)(2)(B) (West 2006)). On April 28,
2009, the State filed a motion to admit the coconspirator state-
ments of codefendant Kwain Ewing. That same day, the trial court
held a hearing on the State's motion.
At the hearing, the State indicated the evidence would
show that Tristen Green was operating as a confidential informant
with the Decatur police department and working with Detective
Shannon Seal. Seal applied for and received a court-authorized
overhear. On September 2, 2008, Green was outfitted with the
overhear device and met with codefendant Ewing. Ewing and Green
had conversations about buying 4.5 ounces of cocaine for $1,200
per ounce, or $5,400 total. Ewing indicated he needed to go to
Chicago to meet with the "old heads" who had "anything you want"
including cocaine, heroin, pills, and cannabis. Ewing agreed to
contact Green when he got back to town. The next day, Ewing
contacted Green and arranged to exchange $5,400 for 4.5 ounces of
cocaine. Seal and other officers conducted surveillance.
Originally, the meeting was to occur at a gas station on North
Woodford. The officers saw a Jaguar with two black males inside
pull up to the gas station on North Woodford. However, during
phone calls, the location of the cash-for-drug exchange was
changed to a Cub Foods grocery store. The officers saw the
Jaguar, in which defendant was identified as the driver and Ewing
was identified as the passenger, go to the Cub Foods parking lot.
Both defendant and Ewing got out of the car and proceeded to the
front of the store. When Green arrived at Cub Foods, Ewing
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started to walk from the front of the store to his vehicle. The
police intercepted him before he could get in the car. After
Ewing was arrested, the police found about 150 grams of cocaine
and some cannabis. The police also arrested defendant because he
was the person who drove Ewing to the parking lot.
When interviewed by the police, defendant stated he had
come down from Chicago because it was a day off work. He met
Ewing at a house on Macon Street. Ewing needed a ride to the
grocery store so defendant gave him one. The officers confirmed
with defendant that he had not stopped anywhere else. They then
confronted him with the fact that they had evidence that he and
Ewing stopped at a Circle K in Forsyth on Koester Drive.
Defendant gave the police consent to search his hotel
room. The police found a piece of paper with $5,400, the amount
of the transaction that was set up between Ewing and Green, on
it. Defense counsel noted the math on the paper did not add up
to $5,400.
The State indicated it was seeking to admit the re-
corded conversation between Green and Ewing through Detective
Seal. The conversation was recorded with a digital recorder and
Seal could testify and lay the foundation for its admission.
The trial court stated the following in announcing its
ruling:
"All right. Well, first of all, I think
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it is a good idea to resolve this beforehand.
It's definitely a good idea. As far as the
co[]conspirator's statements are concerned,
they're an exception to the hearsay rule as
counsel knows. I think the attorneys have
accurately stated the law regarding determin-
ing whether or not an alleged purported
co[]conspirator's statement can be admitted
against a particular defendant in a trial.
The--I'm going to focus on the context of the
statements that we're specifically dealing
with in this motion which would have been, as
I understand it, the statements of September
2nd when the confidential source met with the
co[]defendant. Apparently, Mr. Ewing is his
name. And, as I understand it, from reading
the motion and hearing the arguments of coun-
sel, what was stated, among other things by
the co[]defendant was, after the agreement
was made, that he would be talking to, going
to Chicago, making arrangements with, as Ms.
Wagoner mention, 'the old heads.' So at that
point in time we had statements of the
co[]defendant suggesting that, in fact, there
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were other people involved in making the
arrangements so this transaction could be
completed. Now, as I understand the law--and
Ms. Wagoner is correct, circumstantial evi-
dence may be considered to determine whether
or not there's sufficient independent evi-
dence for purposes of admitting a
co[]conspirator's statement. At that point
in time, and it's not surprising that the
name of this defendant wasn't mentioned, just
these [']old heads['] in Chicago that were
going to apparently or supply the, I guess it
was cocaine, whatever the contraband was.
Now, as I understand it, reviewing the law,
the statement must be made during the course
and in furtherance of the conspiracy. At
that point in time, on September 2nd[,] we
have circumstantial evidence that the
co[]defendant may be referring to this defen-
dant because apparently there's further evi-
dence that this defendant came down from
Chicago. Okay. We do have that. There are
a lot of people in Chicago. So I don't know
how much that narrows us down to whether or
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not at that point in time there was certain
independent, or sufficient evidence not to
establish a conspiracy, which there was, but
to establish whether or not this defendant
was involved in the conspiracy at that point
in time. And, you know, if you think outside
the box, it's possible that when the state-
ments were made by Mr. Ewing on September
2nd, unlikely, but possible, that he didn't
know who the supplier would be or that there
were a number of potential suppliers or [']o-
ld heads[]' in Chicago who could deliver the
goods, so to speak, so he could consummate
this transaction apparently the next day. At
that point in time, however, September 2nd, I
don't think there's sufficient evidence at
that point, independent evidence to suggest
that this defendant may have been involved in
this alleged conspiracy. All that other
evidence I heard about with regard to this
defendant driving Mr. Ewing down the next day
in the vehicle and going from different loca-
tions before Mr. Ewing exited the car and
apparently was arrested by police, I don't
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give those a whole lot of weight because I
think, as I read the law, and again, counsel
may disagree, and I respect that, the [c]ourt
has to focus on the point in time at which
the statements sought to be introduced have
been made. And I just think based on what
I've heard today, based on reviewing the
reports--or the motion as what I understand
the evidence would be, there isn't a suffi-
cient independent basis. So I will deny the
motion, and that's not saying that if we go
to trial on other counts that some of this
evidence is about, you know, who drove the
person with the drugs down here, what was in
the hotel room, those are separate issues as
far as I'm concerned. I'm focusing only on
the statements made by Mr. Ewing on September
2nd."
Also on April 28, 2009, the State filed a certification
of impairment in which it stated the denial of the State's motion
to admit coconspirator's statements substantially impaired the
State's ability to prosecute the matter and its notice of appeal.
II. ANALYSIS
On appeal, the State contends the trial court erred by
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denying the State's motion to admit the hearsay evidence under
the coconspirator exception to the hearsay rule. Supreme Court
Rule 604(a)(1) allows the State to bring an interlocutory appeal
from a pretrial evidentiary ruling that has the substantive
effect of suppressing evidence. 210 Ill. 2d R. 604(a)(1).
"[T]here is no substantive distinction between evidence that is
'excluded' and evidence that is 'suppressed.'" People v. Drum,
194 Ill. 2d 485, 491, 743 N.E.2d 44, 47 (2000). Because there is
no substantive difference between excluding evidence, and sup-
pressing it, we apply the standard of review used in reviewing a
court's ruling on a motion to suppress. Review of a trial
court's ruling on a motion to suppress presents a mixed question
of fact and law. People v. Pitman, 211 Ill. 2d 502, 512, 813
N.E.2d 93, 100 (2004). The correctness of a trial court's ruling
on a motion to suppress presents a legal question, which this
court reviews de novo. People v. Moss, 217 Ill. 2d 511, 518, 842
N.E.2d 699, 704 (2005). However, this court will not overturn
the trial court's findings of historical fact unless they are
against the manifest weight of the evidence. Pitman, 211 Ill. 2d
at 512, 813 N.E.2d at 100.
The coconspirator exception to the hearsay rule pro-
vides that, "any act or declaration (1) by a coconspirator of a
party, (2) committed in furtherance of the conspiracy, and (3)
during its pendency is admissible against each and every
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coconspirator, provided that (4) a foundation for its reception
is laid by independent proof of the conspiracy." People v.
Childrous, 196 Ill. App. 3d 38, 51, 552 N.E.2d 1252, 1261 (1990).
"The coconspirator hearsay exception does not extend to a state-
ment which is merely a narrative of past occurrences and which
does not further any objective of the conspiracy." People v.
Kliner, 185 Ill. 2d 81, 141, 705 N.E.2d 850, 881 (1998).
"This court has held that the State must make an
independent, prima facie evidentiary showing of the existence of
a conspiracy between the declarant and the defendant." People v.
Ervin, 226 Ill. App. 3d 833, 842, 589 N.E.2d 957, 964 (1992).
Evidence of the conspiracy may be totally circumstantial; how-
ever, it must be sufficient, substantial, and independent of the
declarations made by the coconspirator in order for the hearsay
statements to be admitted under this exception. Ervin, 226 Ill.
App. 3d at 842, 589 N.E.2d at 964. Moreover, it is not necessary
that a conspiracy be charged for the statement-by-a-coconspirator
exception to apply. People v. Meagher, 70 Ill. App. 3d 597, 601,
388 N.E.2d 801, 803 (1979).
Initially, we note the trial court indicated it ruled
the way it did because at the point in time the statement the
State sought to introduce was made, the court did not "think
there's sufficient evidence at that point, independent evidence
to suggest this defendant may have been involved in this alleged
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conspiracy." The court thought it had "to focus on the point in
time at which the statements sought to be introduced have been
made." Therefore, the court did not give much weight to the
paper found in defendant's hotel room and the fact defendant
drove Ewing back from Chicago the next day and went to several
different locations with Ewing and then was arrested with him.
This court is not aware of any requirement that the nonhearsay
evidence that shows the existence of a conspiracy must have
existed at the time the coconspirator's statement sought to be
admitted was made. In People v. Davis, 46 Ill. 2d 554, 556-58,
264 N.E.2d 140, 141-42 (1970), our supreme court rejected the
defendant's argument that evidence of a codefendant's conversa-
tion with another party regarding a potential purchase of narcot-
ics from the defendant was erroneously allowed into evidence
because that conversation took place prior to the defendant's
arrival at the scene. The defendant had joined the group after
the conversation at issue took place and then participated in the
narcotics transaction. Davis, 46 Ill. 2d at 556, 264 N.E.2d at
141. That court's discussion of the facts shows the court took
into consideration what happened after the codefendant's conver-
sation that was at issue took place. See Davis, 46 Ill. 2d at
556-57, 264 N.E.2d at 141-42.
Defendant cites People v. Duckworth, 180 Ill. App. 3d
792, 795, 536 N.E.2d 469, 472 (1989), for the proposition that,
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"the mere appearance of defendant at the scene of the drug
transaction does not establish any illicit association between
him and [the alleged coconspirator]." In Duckworth, Tammy
Duckworth made statements to an undercover agent that her uncle
would be the source of the drugs the agent agreed to buy from
Tammy. Duckworth, 180 Ill. App. 3d at 793, 536 N.E.2d at 470.
The agent also told Tammy to have her uncle come to the parking
lot and park a few rows away. Duckworth, 180 Ill. App. 3d at
795, 536 N.E.2d at 471. Later, a van with a male driver, the
defendant, pulled into the parking lot where the exchange was to
take place and parked a short distance away from the agent's
vehicle. Duckworth, 180 Ill. App. 3d at 795, 536 N.E.2d at 471.
The State argued this was sufficient, independent evidence of a
conspiracy between Tammy and the defendant. Duckworth, 180 Ill.
App. 3d at 795, 536 N.E.2d at 471-72. The court held there was
insufficient evidence of a conspiracy between Tammy and the
defendant. Duckworth, 180 Ill. App. 3d at 795, 536 N.E.2d at
471. The court noted that (1) the defendant's mere presence at
the scene of the drug transaction did not establish an illicit
association between Tammy and the defendant and (2) Tammy's act
in returning with defendant created the inference that he was her
uncle and source but was a verbal act which also constituted
impermissible hearsay. Duckworth, 180 Ill. App. 3d at 795, 536
N.E.2d at 472. The court then stated that "[n]one of the
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nonhearsay evidence establishes an agreement between the two
defendants, which is a necessary element of a simple conspiracy."
Duckworth, 180 Ill. App. 3d at 795, 536 N.E.2d at 472.
However, there was more evidence of a conspiracy in the
case sub judice. Here, Ewing told Green he would have to talk to
the "old heads" in Chicago but would contact Green when Ewing
arrived back from Chicago. The agreed-upon price was $5,400 for
4.5 ounces of cocaine. Ewing contacted Green the next day to set
up the drug exchange. Defendant was with Ewing when they were
arrested in the Cub Foods parking lot. Defendant is from Chi-
cago. Moreover, defendant gave police consent to search his
hotel room, where the police found a piece of paper with $5,400
written on it, the exact agreed-upon price for the 4.5 ounces of
cocaine. Finally, defendant lied to the police about how long he
had been with Ewing and where they had stopped that day. This
constitutes more than just mere presence at the drug transaction.
While circumstantial, these facts, taken together and considered
independent of the coconspirator's hearsay statement, constitute
sufficient evidence of a conspiracy between defendant and Ewing
to sell these drugs. Therefore, the State's motion to admit
coconspirator's statements should have been granted.
In his brief, defendant states that Green could not be
considered part of a common plan to accomplish a criminal goal
because he was a confidential informant and was not actually
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agreeing to a drug transaction. This fact is irrelevant to the
analysis as Illinois courts have held that the fact one party to
a conversation is a police officer or government agent does not
eliminate a conspiracy. People v. Redeaux, 355 Ill. App. 3d 302,
305-06, 823 N.E.2d 268, 271 (2005), citing People v. Goodman, 81
Ill. 2d 278, 281-82, 408 N.E.2d 215, 215-16 (1980), and People v.
Columbo, 118 Ill. App. 3d 882, 946, 455 N.E.2d 733, 780 (1983)
(where court cited Goodman for the proposition that the fact one
party to the conversation was a government agent did not elimi-
nate the conspiracy).
III. CONCLUSION
For the reasons stated, we reverse the trial court's
judgment and remand for further proceedings.
Reversed and remanded.
STEIGMANN and APPLETON, JJ., concur.
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