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


                               - 9 -
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,


                                - 10 -
"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


                                - 11 -
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


                               - 12 -
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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