{ "id": 3289917, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOSE D. OLMOS, Defendant-Appellant", "name_abbreviation": "People v. Olmos", "decision_date": "1979-09-24", "docket_number": "No. 78-1164", "first_page": "287", "last_page": "293", "citations": [ { "type": "official", "cite": "77 Ill. App. 3d 287" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "251 N.E.2d 202", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "43 Ill. 2d 124", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2842982 ], "pin_cites": [ { "page": "131" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/43/0124-01" ] }, { "cite": "215 N.E.2d 854", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1969, "opinion_index": 0 }, { "cite": "69 Ill. App. 2d 188", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2591551 ], "year": 1969, "pin_cites": [ { "page": "191" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/69/0188-01" ] }, { "cite": "273 N.E.2d 668", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1966, "opinion_index": 0 }, { "cite": "1 Ill. App. 3d 189", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5313713 ], "weight": 2, "year": 1966, "pin_cites": [ { "page": "192" }, { "page": "192" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/1/0189-01" ] }, { "cite": "324 N.E.2d 246", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "25 Ill. App. 3d 1035", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2706561 ], "pin_cites": [ { "page": "1037" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/25/1035-01" ] }, { "cite": "337 N.E.2d 63", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "33 Ill. App. 3d 324", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2871109 ], "year": 1975, "pin_cites": [ { "page": "325-26" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/33/0324-01" ] }, { "cite": "368 N.E.2d 882", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "68 Ill. 2d 149", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5809665 ], "year": 1975, "pin_cites": [ { "page": "154" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/68/0149-01" ] }, { "cite": "405 U.S. 427", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11722669 ], "weight": 6, "pin_cites": [ { "page": "430" }, { "page": "430" }, { "page": "344" }, { "page": "1059" } ], "opinion_index": 0, "case_paths": [ "/us/405/0427-01" ] }, { "cite": "12 N.E. 865", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "122 Ill. 1", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5390344 ], "pin_cites": [ { "page": "229" } ], "opinion_index": 0, "case_paths": [ "/ill/122/0001-01" ] }, { "cite": "542 F.2d 623", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1029152 ], "opinion_index": 0, "case_paths": [ "/f2d/542/0623-01" ] }, { "cite": "66 Ill. 2d 640", "category": "reporters:state", "reporter": "Ill. 2d", "year": 1976, "opinion_index": 0 }, { "cite": "364 N.E.2d 975", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "49 Ill. App. 3d 1018", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5638677 ], "weight": 2, "year": 1977, "pin_cites": [ { "page": "1020" }, { "page": "1020" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/49/1018-01" ] }, { "cite": "322 N.E.2d 804", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "60 Ill. 2d 37", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5415438 ], "pin_cites": [ { "page": "45" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/60/0037-01" ] }, { "cite": "377 N.E.2d 1168", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "61 Ill. App. 3d 279", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3347861 ], "year": 1975, "pin_cites": [ { "page": "282" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/61/0279-01" ] }, { "cite": "349 N.E.2d 441", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "39 Ill. App. 3d 318", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5383059 ], "weight": 2, "pin_cites": [ { "page": "321" }, { "page": "321" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/39/0318-01" ] }, { "cite": "174 Ill. App. 1", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2760713 ], "pin_cites": [ { "page": "15" } ], "opinion_index": 0, "case_paths": [ "/ill-app/174/0001-01" ] } ], "analysis": { "cardinality": 683, "char_count": 12866, "ocr_confidence": 0.909, "pagerank": { "raw": 1.8343999430086537e-07, "percentile": 0.721185482242401 }, "sha256": "45c07314435c78c0cac16b282721f5e63da5880bb9132c3410e0e13735f6c5ca", "simhash": "1:34c1cf9b785291dd", "word_count": 2180 }, "last_updated": "2023-07-14T21:36:13.635442+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOSE D. OLMOS, Defendant-Appellant." ], "opinions": [ { "text": "Mr. PRESIDING JUSTICE GOLDBERG\ndelivered the opinion of the court:\nAfter a bench trial, Jose D. Olmos (defendant) was found guilty on two counts of delivery of a controlled substance (Ill. Rev. Stat. 1975, ch. 56/2, par. 1401(c)) and unlawful use of weapons (Ill. Rev. Stat. 1975, ch. 38, par. 24 \u2014 1(a)(4)). He was sentenced to 1 to 5 years on the controlled substance charges and 364 days on the weapons charge. Defendant appeals.\nChristine Kolman, an undercover police officer, testified she met defendant on September 17 or 18, 1975. Officer Kolman and defendant had a conversation concerning drugs. Defendant stated, \u201cI have acid and I have a contact for tic [PGP].\u201d Defendant also told her, \u201cI can get you any amount of tic you want.\u201d The officer told defendant she had *3000 to spend on drugs. Defendant told Officer Kolman to call him back at a later time.\nOfficer Kolman called defendant on September 23,1975. He told her he would get in touch with his contact for drugs and she should call him back the next day. Defendant then informed the officer she could receive two ounces of tic or PGP and between 300 and 400 \u201chits\u201d of acid for *3000.\nThe officer again called defendant on September 24. He told her he had reached his contact and he could deliver the drugs later that day. He told Officer Kolman to meet him at a designated restaurant in Chicago at about 4 p.m.\nThe officer went to the restaurant as instmcted. She was accompanied by six other police officers serving as backup undercover officers. Defendant arrived and told her delivery would have to be postponed another day.\nOfficer Kolman called defendant on September 30. He told her he had made his contact and asked her to call again the next day. Defendant told her \u201cI talked with him and I am pretty sure I could have it for you tomorrow.\u201d The officer called defendant on October 1. Defendant told her \u201che had two ounces of PCP and the three hundred forty hits of acid for $3,000.\u201d Defendant told her to meet him at the same restaurant at 4 p.m. that day.\nThe officer went to the State\u2019s Attorney\u2019s office to get the *3000. She photocopied each bill and signed her name on each of the copies. The copies were all time stamped. She then went to the restaurant as arranged, once again accompanied by other officers.\nDefendant arrived with a previously unknown male later identified as Edward Kalous. Defendant introduced Kalous as his friend \u201cWoody.\u201d The three sat in the restaurant for a few minutes and then left the building and got into Kalous\u2019 car. The two men sat in the front seat and the officer was in the rear. Kalous said to Officer Kolman, \u201cIf you have the money we\u2019ve got the stuff.\u201d The officer replied, \u201cYes, I have the money.\u201d Defendant told Kalous, \u201cGive her the stuff.\u201d Defendant then said, \u201cWe have all of the PCP and acid you can use.\u201d Kalous gave Officer Kolman two plastic bags containing a white powder and plastic medicine bottles and tinfoil packets containing pills. The white powder was identified at trial by an evidence technician as 53.54 grams of phencyclidine or PCP and the tablets as 2.44 grams of lysergic acid diethylamide or LSD.\nDefendant told the officer she could check the drugs. She said, \u201cNo. I trust you.\u201d Officer Kolman placed the contraband in her slacks. Kalous then said, \u201cWhere is the money?\u201d The officer said, \u201cIt is in the trunk of my car.\u201d Kalous said, \u201cGo to the car with her and get the money.\u201d The officer left the car with the defendant. They walked over to her car. She took the *3000 out of a brown paper bag in the trunk and handed it to defendant. At that time, the backup team responded to a signal from Officer Kolman. They came up and made the arrest.\nOfficer Louis Alvizu testified he was present at the restaurant on September 24 when Officer Kolman met with defendant. He was also present on October 1. He saw Officer Kolman hand the money to defendant. He placed defendant under arrest on said date. While searching defendant he found a loaded .32-caliber revolver under defendant\u2019s left arm.\nThe defendant testified that, after meeting Officer Kolman, she told him she liked tic and asked if he could get her some. She called him at least 15 times. She begged him to secure drugs for her. He told her he could not get her any narcotics. He testified he did not know what \u201ctic\u201d was. He further testified he did not see Kalous give Officer Kolman anything on October 1. Moreover, he himself did not give anything to the officer. When he left the car with her she opened the trunk of her automobile and handed him the money and told him to give it to Kalous. He also testified that he left the officer and Kalous seated together in the restaurant for about one minute while he went to get cream and sugar for his coffee. Defendant denied he had arranged with Kalous to deliver narcotics and denied he delivered any narcotics to Officer Kolman.\nDefendant contends the trial court committed reversible error when it allowed into evidence over his objections the hearsay statements and conduct of Edward Kalous. He further contends the sentence imposed was excessive and grossly disparate from that imposed upon codefendant Kalous.\nThe State contends \u201cany statement made by Edward Kalous was the statement of one conspirator during the course of and in furtherance of the conspiracy and therefore was properly admitted by the trial court as an exception to the hearsay rule.\u201d Section 8 \u2014 2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, par. 8 \u2014 2) provides, \u201c[a] person commits conspiracy when, with intent that an offense be committed, he agrees with another as to the commission of that offense.\u201d Many years ago this court held, \u201c[a]s soon as the union of wills for the unlawful purpose is perfected, the offense of conspiracy is complete. No proof of an agreement to concur in the conspiracy is necessary.\u201d People v. Pouchot (1912), 174 Ill. App. 1, 15.\nActs and declarations of one coconspirator are admissible against another coconspirator as an exception to the hearsay rule. To be admissible, \u201cit is not necessary that a conspiracy be actually charged \u2022 * * [citations]. It is, however, necessary to show at least a prima facie case that two or more persons were engaged in a common plan to accomplish a criminal goal or to reach another end by criminal means.\u201d (People v. Simpson (1976), 39 Ill. App. 3d 318, 321, 349 N.E.2d 441.) Admissible statements \u201cmust be in furtherance of the common design, and not merely a narrative of what has already been done.\u201d Simpson, 39 Ill. App. 3d 318, 321.\nDefendant cites Simpson and argues that no prima facie showing of a conspiracy was made in the case before us. However, \u201c[t]he existence of the conspiracy may be proved by circumstantial evidence; it can be inferred by the conduct and statements of the parties and from the surrounding circumstances of the particular occurrence.\u201d People v. Vettese (1978), 61 Ill. App. 3d 279, 282, 377 N.E.2d 1168, citing People v. Bailey (1975), 60 Ill. 2d 37, 45, 322 N.E.2d 804.\nIn support of the above proposition, in People v. Jackson (1977), 49 Ill. App. 3d 1018, 1020, 364 N.E.2d 975, appeal denied (1977), 66 Ill. 2d 640, this court cited United States v. Trowery (3d Cir. 1976), 542 F.2d 623. In Trowery, the defendant was convicted of distribution of heroin. The defendant was never seen in possession of heroin. However, he was seen giving something to the coconspirator. Soon thereafter, the coconspirator made a sale of heroin to a Federal agent. The court held that these events were sufficient for admission into evidence of the statements of the coconspirator against the defendant.\nIn Jackson, this court held independent testimony of an IBI agent was sufficient to support a prima facie case of conspiracy. The defendant was present during the sale of cocaine but was never seen in physical possession of the substance. The statements of the coconspirator were held admissible against the defendant. Jackson, 49 Ill. App. 3d 1018, 1020.\nIn the instant case the testimony of Officer Kolman was strongly sufficient to support a prima facie showing of conspiracy. The defendant arranged the meeting whereby the sale of drugs occurred. Edward Kalous was in physical possession of the drugs which he delivered to the officer. Edward Kalous and the defendant were together in the car at the time of the delivery of the controlled substance to the police officer. Kalous inquired whether the officer had the money for the purchase. When she responded affirmatively, defendant instructed Kalous to give her the narcotics. Kalous handed the drugs to the officer. Defendant remarked, \u201cwe have all the PCP and acid you can use.\u201d (Emphasis added.) Defendant received the money from Officer Kolman which completed the purchase. Prior to this meeting, defendant continuously referred to his \u201ccontact.\u201d Defendant told Officer Kolman he was able to connect with his contact and could deliver the narcotics. He arranged a meeting to which he brought Kalous. The record demonstrates defendant acted in concert with Kalous at the time of the delivery of the contraband. By strong implication it appears that Kalous was defendant\u2019s connection or \u201ccontact\u201d with whom he planned and effected the delivery of a controlled substance to Officer Kolman. The proof of the existence of the conspiracy and of the guilt of defendant is strong beyond reasonable doubt.\nDefendant further argues that Kalous\u2019 statements were not made in \u201cfurtherance of the common design.\u201d In Spies v. People (1887), 122 Ill. 1, 229, 12 N.E. 865, the supreme court defined admissible statements in a conspiracy context as those \u201cwhich had the effect of advising, encouraging, aiding and abetting its perpetration e * 0 .\u201d Kalous\u2019 statement asking Officer Kolman if she had the money for the drug purchase because they had the \u201cstuff\u201d was made to and did necessarily abet the perpetration of the drug sale and was thus admissible.\nDefendant argues his right to confrontation was violated by admission of Kalous\u2019 statements because conspiracy had not been proved. Assuming, arguendo, that the statements of Kalous did not properly fall within the above-discussed exception to the hearsay rule, their use in the instant case would constitute harmless error. As stated in Schneble v. Florida (1972), 405 U.S. 427, 430, 31 L. Ed. 2d 340, 92 S. Ct. 1056, when the \u201cevidence of guilt is so overwhelming, and the prejudicial effect of the codefendant\u2019s admission is so insignificant by comparison,\u201d it is clear beyond a reasonable doubt that the improper use of the admission was harmless error. Schneble, 405 U.S. 427, 430, 31 L. Ed 2d 340, 344, 92 S. Ct. 1056, 1059.\nFinally, defendant contends his, sentence was excessive and grossly disparate from the sentence imposed on the codefendant. Initially it must be stated \u201cthat absent an abuse of discretion by the trial court a sentence may not be altered upon review.\u201d (People v. Perruquet (1977), 68 Ill. 2d 149, 154, 368 N.E.2d 882.) Additionally, \u201cequality in sentencing * * * is not required for all participants in the same criminal act.\u201d People v. Stambor (1975), 33 Ill. App. 3d 324, 325-26, 337 N.E.2d 63, citing People v. Schmidt (1975), 25 Ill. App. 3d 1035, 1037, 324 N.E.2d 246.\nThis court has held that where a defendant was not an \u201c \u2018equal participant\u2019 \u201d in the commission of a crime or where the \u201c \u2018nature of the participation\u2019 of the respective parties justified a difference in penalty\u201d such sentences would be upheld upon review. People v. Blumenthal (1971), 1 Ill. App. 3d 189, 192, 273 N.E.2d 668, citing People v. Steg (1966), 69 Ill. App. 2d 188, 191, 215 N.E.2d 854. Compare People v. Morris (1969), 43 Ill. 2d 124, 131, 251 N.E.2d 202.\nIn the instant action, as in Blumenthal, the defendant was \u201cthe mastermind behind this scheme, and the most active participant \u00b0 \u00b0 \u00b0 .\u201d (Blumenthal, 1 Ill. App. 3d 189, 192.) Defendant spoke with Officer Kolman several times concerning the narcotics transaction, he located the drugs, arranged the meeting for their delivery and physically received the money in payment for them. Additionally, defendant was armed with a revolver at the time of his arrest and was convicted of unlawful use of weapons. Based upon these facts, the nature and extent of defendant\u2019s participation in the commission of the offense justified the sentence he received. The judgments appealed from are accordingly affirmed.\nJudgments affirmed.\nMcGLOON and O\u2019CONNOR, JJ., concur.", "type": "majority", "author": "Mr. PRESIDING JUSTICE GOLDBERG" } ], "attorneys": [ "Lawrence Wolf Levin and Steven R. Decker, both of Chicago, for appellant.", "Bernard Carey, State\u2019s Attorney, of Chicago (Marcia B. Orr, James Veldman, and Robert J. Clifford, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOSE D. OLMOS, Defendant-Appellant.\nFirst District (1st Division)\nNo. 78-1164\nOpinion filed September 24, 1979.\nLawrence Wolf Levin and Steven R. Decker, both of Chicago, for appellant.\nBernard Carey, State\u2019s Attorney, of Chicago (Marcia B. Orr, James Veldman, and Robert J. Clifford, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0287-01", "first_page_order": 309, "last_page_order": 315 }