SECOND DIVISION

								NOVEMBER 26, 2002

Nos. 1-98-0444, 1-98-0445, 1-98-1928,

1-98-2095, 1-01-0497, 1-01-0779 (cons.)

		THE PEOPLE OF THE STATE OF ILLINOIS,	)	Appeal from the

										)	Circuit Court of

																Plaintiff-Appellee,			)	Cook County.

								)	

																v.				    		)	94 CR 16717

															                    	)	

WAYNE EDWARDS, AYODELE FAYAODE,		)

AFOLOBI ANIMASHAWN, ANDRE NELSON		)	The Honorable

										)	Marcus R. Salone,   

																Defendant-Appellant.		)	Judge Presiding.

	JUSTICE CERDA delivered the opinion of the court:

	Following a jury trial, defendants, Wayne Edwards, Ayodele

Fayaode, Afolobi Animashawn, and Andre Nelson, were found guilty

of criminal drug conspiracy.  Edwards, Fayaode and Nelson were

sentenced to 30 years in prison, while Animashawn received a

prison sentence of 25 years.  On appeal, defendants contend that

their indictment was duplicitous and that the nonconsensual

eavesdropping orders granted by the trial court were

unconstitutional.  Edwards, Fayaode and Animashawn further

contend that the State did not prove all of the elements of

conspiracy listed in the indictment, that their sentences were

excessive, and that the trial court erred in not issuing proper

jury instructions and in permitting the introduction of nonexpert testimony.  Nelson alone argues that the trial court erroneously allowed the introduction of a prejudicial videotape, and that his

mittimus is incorrect.  Edwards appeals the dismissal of his

postconviction petition.  Several of these issues are discussed

in the nonpublishable portion of this opinion.

BACKGROUND

	Defendants and 15 other codefendants were charged with

multiple counts of criminal drug conspiracy under indictment

number 94 CR 16717.  The indictment arose from an investigation

into drug sales by the Black Souls street gang on the west side

of Chicago.  The investigation was conducted by the Drug

Enforcement Agency, the Internal Revenue Service and the Chicago

Police Department.  It included visual surveillance in the area

of Walnut Street and Homan Avenue, and visual and telephone

surveillance of a residence located at 1346 N. Kildare Avenue. 

	In March 1993, the police were granted two court orders

allowing the use of pen registers and caller identification trap

and trace devices.  The devices were to display numbers dialed to

and from a telephone located at the Kildare residence, which was

registered to Crystal Bennett, and a cellular telephone

registered to German Forero.  Each order was for a period of 60

days and was subsequently extended for additional 60-day periods.

	In July 1993, the State’s Attorney’s office authorized three

applications consensual eavesdropping devices.  The authoriza-

tions were signed by the Deputy State’s Attorney, an assistant State’s Attorney, and the chief of the narcotics bureau.

	In September and October 1993, the police obtained two more

court orders for the use of pen registers and trap and trace

devices on a telephone located at Edwards’ apartment on Sheridan

Road and a second telephone number registered to Crystal Bennett

at the Kildare house.  These orders were also for 60-day periods.

	On November 12, 1993, the trial court entered two

nonconsensual electronic surveillance orders, allowing the

interception of telephone calls made to and from the Kildare

residence and to and from the cellular telephone listed to German

Forero.  The orders were each for a period of 30 days, and the

State’s Attorney’s office was required to submit progress reports

to the court every 10 days while conducting the eavesdropping.  

	In December of the same year, the trial court entered a

court order allowing the use of a pen register for 60 days on a

second cellular telephone registered to German Forero.  The court

subsequently entered a nonconsensual electronic surveillance

order for that cellular telephone.  Pursuant to these orders, the

Chicago police recorded over 1,000 telephone calls.  

	On June 6, 1994, a grand jury returned a multicount

indictment against defendants.  Count I, for criminal drug

conspiracy, alleged that defendants conspired to commit the

offenses of: (1) possession with the intent to deliver and

delivery of 400 grams or more but less than 900 grams of a

substance containing heroin; (2) possession with the intent to deliver and delivery of 15 grams or more but less than 100 grams

of a substance containing heroin; (3) delivery of 10 grams or

more but less than 15 grams of a substance containing heroin; and

(4) delivery of less than 10 grams of a substance containing

heroin.  The only other count of the indictment relevant to this

appeal is count VIII, which alleged that defendants Fayaode and

Animashawn committed the offense of possession with intent to

deliver 400 grams or more but less than 900 grams of a substance

containing heroin.    

	The indictment specifically alleged that Edwards organized

and supervised the wholesale and street-level retail distribution

of heroin for the Black Souls street gang.  Edwards allegedly

employed workers who arranged meetings with customers seeking to

purchase heroin, and he oversaw the procurement, cutting,

packaging and distribution of the heroin.  One of the workers who

reported to Edwards was Nelson.  Nelson allegedly conducted the

activities of the narcotic organization out of the Kildare

residence.  Edwards and Nelson procured the heroin from

suppliers, two of whom were Fayaode and Animashawn.  Count I

alleged numerous acts the various defendants committed in

furtherance of the conspiracy.  	

	A trial was held with two juries, one jury for defendant

Nelson and a second for the other defendants appealing in this

consolidated case.  At trial, Chicago police officer Sal Colello

testified that, as part of the investigation, he regularly drove through the area of Walnut Street and Homan Avenue to observe

patterns of activity.  He testified that numerous people gathered

in the street in the area.  He observed people acting as

“lookouts” by announcing the arrival of police, and others acting

as “security,” ensuring that drug sales ran smoothly.  Colello

also saw people standing in line to purchase tinfoil packets of

heroin and witnessed hand-to-hand sales of the tinfoil packets. 

On October 14, 1993, Colello videotaped the narcotic sales

activity in the Walnut-Homan area.  The videotapes were published

to the jury and were described by Officer Colello.

	Miguel Mendez, a cellular telephone salesman, testified that

he programmed two cellular telephones for Fayaode.  Fayaode paid

Mendez to put the contracts in the name of Mendez’s nephew,

German Forero.  The telephone bills would be delivered to

Forero’s address, but Fayaode would pay the bills in cash.  The

telephones were activated in December 1992 and June 1993.  Mendez

also sold a cellular telephone to Animashawn in Animashawn’s own

name.

	Chicago police officer Lee Bielecki testified that he had

been a police officer for 12 years.  For the past five years he

had been assigned to the narcotics section of the Chicago Police

Department.  For the seven years before that, he had been

assigned to the 11th district, which included the Walnut-Homan

area.  Officer Bielecki stated that he was a patrol officer, and

later, a tactical officer in the 11th district.  He had been involved in several major and mid-level narcotic investigations,

and over 1,000 street-level investigations during his career. 

Over 100 of the street-level investigations specifically involved

cocaine and heroin.

	Following additional testimony about his experience in the

Walnut-Homan area, the court qualified Officer Bielecki as an

expert in the field of narcotics law enforcement, particularly

with regard to drug trafficking in the Walnut-Homan area.  

	Officer Bielecki testified that he monitored the pen

registers used in this case.  In July and August of 1993,

undercover officers making heroin purchases used cellular

telephones to call codefendant Darryl Edwards’ cellular

telephone.  The pen register showed corresponding calls between

the officers and Darryl Edwards and between Darryl and the

telephone at the Kildare residence.  Hundreds of telephone calls

were made to and from the Kildare residence on a daily basis. 

From the spring of 1993 to October 1993, police registered more

than a few thousand calls.

	The State published 124 audiotapes.  Each contained an

intercepted telephone call by one or more of the codefendants. 

The jury reviewed transcripts of the conversations while the

audiotapes were played.  Officer Bielecki testified that he

determined the identities of the speakers on the audiotapes from

the context of the conversations, the identification of the

speaker by himself or another speaker, and his own familiarity with the voices.  Prior to listening to the wiretaps, Bielecki

had spoken with Nelson 50 to 75 times and with Edwards over 100

times.  He heard Fayaode’s voice for the first time during the

wiretapping, but testified Fayaode’s voice was distinctive due to

his accent.  The officer had never spoken to Animashawn, but had

overheard his voice at the police station.  

	Officer Bielecki interpreted the terminology used in some of

the recorded conversations.  The officer testified that the

conversations included: (1) Edwards speaking about the sale of

200 grams of heroin and stating that he would not pay the

supplier until the drugs were sold; (2) Nelson speaking about

“licks” (600 packets of heroin) and stating that they should have

gotten 9 or 10 licks out of 200 grams; (3) Nelson discussing the

mixing of heroin with other substances; (4) Nelson and Fayaode

discussing $50,000 owed to Fayaode, and Nelson’s request for 200

grams of heroin; (5) Edwards discussing a meeting concerning the

sale of 100 grams of heroin; (6) Nelson being asked why certain

heroin was not mixed with other substances prior to sale; (7)

Fayaode telling Nelson he wanted to bring 400 grams, not just 300

grams; (8) someone telling Nelson that he sold half his lick; (9)

someone telling Nelson that he had already collected $2,400 from

the lick he was selling; (10) Nelson telling someone he did not

need to purchase any drugs at that time; (11) Nelson discussing

drug deliveries made by Fayaode and stating that they would give

all the Walnut-Homan salesmen fresh licks to sell; (12) someone telling Nelson he was going to mix heroin with another substance;

(13) Nelson and Fayaode discussing the delivery of 500 grams of

heroin; (14) Animashawn stating that if he got the heroin cheaper

from his supplier, he would sell it for a lower price; (15)

Nelson discussing the fact that the police had the Kildare

residence under surveillance; and (16) Nelson telling someone to

clean up evidence of drug paraphernalia in the house.

	Chicago police officer Maurice Barnes testified that on

October 14, 1993, he made an undercover narcotic purchase in the

Walnut-Homan area.  He purchased two tinfoil packets for $20 from

Black Soul member David Robinson.  Robinson was arrested, and the

packets were found to contain .14 gram of heroin.  

	On November 16, 1993, the police intercepted a telephone

conversation between codefendants Tommiwa Kolly and Darryl

Edwards, during which they discussed the delivery of 500 grams of

heroin.  Chicago police officer Jude Evans testified that, on

that same date, he was assigned to stop a car seen leaving the

Kildare residence and identify the driver.  Evans stopped the car

for a traffic violation and the driver, Tommiwa Kolly, provided

him with an Illinois identification card.  Evans saw large sums

of money on the floor of the car.  Kolly told Evans the money

“must be” John’s, the owner of the car, but he did not know

John’s last name or address.  The money was impounded, and Evans

told Kolly he would have to follow him to the police station to

obtain a receipt.  On the way to the station, Evans saw Kolly using his cellular telephone.  Once at the station, Kolly drove

through the parking lot and left.  He did not return for the

receipt or the money.  

	On November 17, 1993, the police recorded a telephone

conversation between Fayaode and Nelson, who was using the

telephone at the Kildare residence.  Nelson told Fayaode to come

pick up some money.  Fayaode said he would tell “Tony” to do it. 

Surveillance established that Animashawn arrived at the Kildare

residence shortly after the conversation.  Animashawn entered the

residence and soon departed carrying a paper bag.  Surveillance

officers saw Animashawn and Fayaode drive to Fayaode’s 211 East

Ohio Street residence.  Fayaode took the paper bag inside.  

	Officer Barnes testified that on November 23, 1993, he

detained a car driven by codefendants Terrell Freeman and Vincent

Reed.  Barnes found a large plastic bag of tinfoil packets hidden

in a side panel of the car.  Freeman and Reed were not arrested,

but the bag was confiscated.  The substance in the bag weighed

41.6 grams and contained heroin.  Barnes testified that the

police stopped the car to generate conversation on the wiretaps.  

	Officer Bielecki testified that the police intercepted a

number of telephone conversations connecting Freeman to the

conspiracy, including: (1) codefendant Bryant Boyd telling

Freeman to come to Kildare to get a lick; (2) Freeman telling

Boyd the police took the lick; (3) Nelson and Boyd talking about

the lick taken from Freeman; and (4) Freeman talking to Edwards about being stopped by the police.

	Chicago police officer James Spratte testified that on

November 24, 1993, he stopped a car occupied by Fayaode and

Animashawn.  Spratte searched the car and seized a shoe box

containing 497.96 grams of heroin.  A telephone conversation was

later intercepted in which Nelson and codefendant Darryl Edwards

discussed Fayaode’s arrest while in possession of 500 grams of

heroin.  Another conversation was intercepted in which Nelson

discussed Fayaode’s bail.  Someone subsequently provided $40,000

in cash for Fayaode and Animashawn’s bond.  A narcotics-sniffing

dog alerted on the drawers containing the cash.

	Officer Spratte further testified that on December 1, 1993,

he arrested codefendant Remmy Baker on an outstanding warrant. 

He followed Baker from the Kildare residence and seized $3,000

and 73.87 grams of heroin from his car.  A telephone conversation

had been intercepted that same day during which Baker told Darryl

Edwards he was bringing some heroin to the Kildare house.  

	On December 9, 1993, Chicago police officers Betty Coleman

and Sharon Wise made an undercover purchase of a tinfoil packet

in Walnut-Homan area.  The seller was arrested and identified as

Moise Stamps.  There was no testimony that Stamps was a Black

Souls member.  The packet weighed .07 gram and contained heroin.  

	In December 1993, Nelson and Edwards were arrested by the

Chicago police.  The Internal Revenue Service searched their

residences.  Items seized from Edwards’ home included a Mercedes Benz automobile, $6,890 in a paper bag, $680 in a closet, $13,848

in a shoe box, numerous items of jewelry, a cellular telephone, a

piece of paper displaying Fayaode’s pager number, a traffic

ticket belonging to Nelson, photo albums, and a telephone tap

detection device.  Among the items seized from Nelson’s home were

jewelry, cellular telephones, and a photo of Nelson, Fayaode, and

Animashawn.  The appraised value of the jewelry seized from both

residences totaled over $50,000.

	The jury found Edwards guilty of criminal drug conspiracy to

deliver less than 10 grams of heroin.  He was also found guilty

of conspiring to possess 15 grams or more but less than 100 grams

of heroin with the intent to deliver.  He was acquitted of

conspiracy to possess 400 to 900 grams of heroin with the intent

to deliver.  Edwards was sentenced to 30 years in prison. 

	The jury found Nelson guilty of criminal drug conspiracy to

deliver less than 10 grams of heroin, to possess 15 grams or more

but less than 100 grams of heroin with the intent to deliver, and

to possess 400 grams or more but less than 900 grams of heroin

with the intent to deliver.  Nelson was sentenced to 30 years in

prison and was fined $150,000.

	The jury found Animashawn guilty of criminal drug conspiracy

to possess with the intent to deliver heroin weighing 400 grams

or more but less than 900 grams.  He was acquitted of possession

with the intent to deliver 400 grams or more but less than 900

grams of heroin.  Animashawn was sentenced to 25 years in prison and was fined $150,000.

	The jury found Fayaode guilty of criminal drug conspiracy to

commit the offense of possession with intent to deliver 400 or

more but less than 900 grams of heroin.  He was found not guilty

of possession with intent to deliver 400 grams or more but less

than 900 grams of heroin.  Fayaode was sentenced to 30 years in

prison and was fined $250,000.

 	Following his conviction, defendant Edwards filed a pro se petition for postconviction relief, alleging, among other things,

that the trial judge penalized him for refusing a plea bargain. 

The petition was summarily dismissed.

	Defendants appeal.

ANALYSIS

	I.  Duplicity of the Indictment and 

the Alleged Resulting Errors

	Defendants first contend that count I of the indictment for

criminal drug conspiracy was duplicitous because it alleged the

commission of multiple offenses, which should have been alleged

in separate counts.  Defendants did not challenge the indictment

until after trial.  In the alternative, defendants Edwards,

Animashawn and Fayaode argue that, if count I properly alleged a

single conspiracy, the State did not prove them guilty of all of

its elements as listed in the indictment.  Defendants further

contend that the jury should have been instructed of the

possibility that there were multiple conspiracies.  They argue that there was a fatal variance between the evidence at trial,

which showed multiple conspiracies, and the single conspiracy

alleged in the indictment.  Defendants conclude that these errors

caused the jury to return legally inconsistent verdicts.

A.  Duplicity of the Indictment

	Duplicity occurs when two or more distinct offenses are

joined in the same count of an indictment.  People v. Oaks, 169 Ill. 2d 409, 444, 662 N.E.2d 1328 (1996), reversed on other grounds by In re G.O., 191 Ill. 2d 37, 727 N.E.2d 1003 (2000).  An indictment is not duplicitous if it charges a single offense

in more than one way or if it merely pleads different acts

contributing to the ultimate charged offense.  Oaks, 169 Ill. 2d at 444; People v. Johnson, 231 Ill. App. 3d 412, 424, 595 N.E.2d 1381 (1992).  A duplicitous indictment does not set forth the

nature and elements of the charge with certainty, thereby

rendering the complaint void.  People v. Heard, 47 Ill. 2d 501, 505, 266 N.E.2d 340 (1970).  Review of the sufficiency of a

complaint is de novo.  People v. Moulton, 282 Ill. App. 3d 102, 104, 668 N.E.2d 1078 (1996).  

	The United States Supreme Court has specifically found that

a count alleging a multi-object agreement is not duplicitous:  

			“The allegation in a single count of a

conspiracy to commit several crimes is not

duplicitous, for `The conspiracy is the

crime, and that is one, however diverse its objects.’ [citation omitted]. ***  The single

agreement is the prohibited conspiracy, and

however diverse its objects it violates but a

single statute ***.”  Braverman v. United States, 317 U.S. 49, 54, 87 L. Ed. 23, 28, 63 S. Ct. 99, 102 (1942).  

Numerous federal cases have also held that, even though an

indictment may not charge multiple conspiracies in a single

count, one count alleging a single conspiracy with multiple

objects is not duplicitous.  See United States v. Campbell, 279 F.3d 392, 397-98 (6th Cir. 2002) (indictment charging defendant with conspiracy to distribute marijuana, cocaine, and crack

cocaine is not duplicitous); United States v. Patterson, 162 F. Supp. 2d 1017, 1019 (N.D. Ill. 2001) (indictment charging

defendants with conspiracy to possess with intent to distribute

and to distribute a controlled substance is not duplicitous); United States v. Bruun, 809 F.2d 397, 406 (7th Cir. 1987).

	A person commits criminal drug conspiracy when:

		“[W]ith the intent that an offense set forth

in Section 401, Section 402, or Section 407

of this Act be committed, he agrees with

another to the commission of that offense. 

No person may be convicted of conspiracy to

commit such an offense unless an act in

furtherance of such agreement is alleged and proved to have been committed by him or by a

co-conspirator.”  720 ILCS 570/405.1 (West

2000).

	As in the cases cited above, count I in the instant case

alleged that defendants committed the single offense of criminal

drug conspiracy, thereby violating the single statute defined in

section 405.1 of the Illinois Controlled Substances Act (720 ILCS

570/405.1 (West 2000)).  The count simply enumerated four objects

of that conspiracy: (1) delivery of and possession with intent to

deliver 400 grams or more but less than 900 grams of a substance

containing heroin; (2) delivery of and possession with intent to

deliver 15 grams or more but less than 100 grams of a substance

containing heroin; (3) delivery of 10 grams or more but less than

15 grams of a substance containing heroin; and (4) delivery of

less than 10 grams of a substance containing heroin.  This does

not render the indictment duplicitous.

	In addition, count I included great detail about the objects

of the conspiracy.  It sufficiently apprised defendants of the

charges against them and allowed them to prepare their defense.  

	Defendants cite to People v. Eagle Books, Inc., 151 Ill. 2d 235, 602 N.E.2d 798 (1992), People v. Capitol News, Inc., 137 Ill. 2d 162, 560 N.E.2d 303 (1990), and People v. Heard, 47 Ill. 2d 501, 266 N.E.2d 340 (1970), for the proposition that disparate

acts may not be alleged in the same count of an indictment.  In

Eagle Books and Capitol News, the Illinois Supreme Court found that offering for sale, selling, and delivering obscene materials

were disparate acts, which could not be charged in the same count

of an indictment.  Eagle Books, 151 Ill. 2d at 245-46; Capitol News, 137 Ill. 2d at 175.  The Heard court similarly found an indictment to be duplicitous where it alleged the defendant set

up, promoted or sold tickets for a “policy game” in violation of

the Illinois gambling statute.  Heard, 47 Ill. 2d at 504.  Because these cases did not involve allegations of conspiracy,

they are inapposite to the instant case.  The federal cases cited

above, which specifically held that it is not duplicitous to

charge a defendant with criminal drug conspiracy in various ways,

are more directly on point.  As a result, we will adhere to the

law as interpreted by those cases.

	Although defendants were granted leave to cite the

supplemental authorities of People v. Nolan, 332 Ill. App. 3d 215, 773 N.E.2d 105 (2002), and People v. Gonzales, 314 Ill. App. 3d 993, 743 N.E.2d 77 (2000), we find these cases do not support

defendants’ contention that the indictment was duplicitous.

	For all of these reasons, we find that count I was not

duplicitous.

	Defendants Edwards, Animashawn, and Fayaode argue in the

alternative that, if count I alleged one conspiracy, then the

State did not prove all of the offense’s elements.  They contend

that each of the four alleged objects of the conspiracy must be

viewed as an essential element of the single crime.

	It is well settled that a verdict of guilty for conspiracy

to commit only one of a number of alleged offenses is sufficient

to sustain a conviction.  See United States v. Pascarella, 84 F.3d 61, 71 (2d Cir. 1996) (a court may affirm a conviction for conspiracy where the evidence showed that defendant committed

only two out of the three aims of the alleged conspiracy); see

also United States v. Ross, 131 F.3d 970, 984 (11th Cir. 1997), citing Griffin v. United States, 502 U.S. 46, 56-60, 116 L. Ed. 2d 371, 380-83, 112 S. Ct. 466, 472-75 (1991) (courts will uphold

a general verdict for a multi-object conspiracy if the evidence

was sufficient to support any of the alleged objects).

	While count I in this case alleged one conspiracy to commit

four acts, the jury was given separate verdict forms to determine

defendants’ guilt of conspiracy to commit each act.  They were

instructed that defendants were “charged in different ways with

the offense of Criminal Drug Conspiracy” and that they would

receive two verdict forms (guilty and not guilty) for each way

the offense was charged.  These instructions properly enabled the

jury to find defendants guilty of criminal drug conspiracy

without having to find they conspired to commit all four objects

of the conspiracy.  The State was not required to prove

defendants conspired to commit all four objects of the conspiracy

in order to sustain their convictions.  Griffin, 502 U.S. at 56- 57, 116 L. Ed. 2d at 381, 112 S. Ct. at 472-73.

B.  Proof of a Single Conspiracy v. Multiple Conspiracies

	Defendants Edwards, Fayaode, and Animashawn next contend

that there was a fatal variance between the indictment, which

alleged a single conspiracy, and the evidence at trial, which

established multiple conspiracies.  They argue the jury should

have received a proposed instruction on multiple conspiracies.

	A defendant’s allegation that there is a fatal variance

between the indictment and the evidence at trial must be treated

as a challenge to the sufficiency of the evidence.  United States v. Bullis, 77 F.3d 1553, 1560 (7th Cir. 1996).  Therefore, we will uphold the jury’s determination that a single conspiracy

existed if, in viewing the evidence in a light most favorable to

the government, any rational trier of fact could have found the

existence of the conspiracy beyond a reasonable doubt.  Bullis, 77 F.3d at 1560.

	Where coconspirators agree to work in furtherance of a

common goal or purpose, there is but one conspiracy.  Kotteakos v. United States, 328 U.S. 750, 773, 90 L. Ed. 1557, 1571, 66 S. Ct. 1239, 1252 (1946); Bullis, 77 F.3d at 1560; United States v. Varelli, 407 F.2d 735, 741 (7th Cir. 1969).  Although the parties to the agreement may change over time and there may be many

transactions, this does not establish that there were separate

conspiracies.  Varelli, 407 F.2d at 742.  In a single conspiracy, each defendant may perform a different function to further the

illegal objective of the conspiracy.  United States v. Paiz, 905 F.2d 1014, 1020 (7th Cir. 1990); Varelli, 407 F.2d at 742.  Only where the conspirators have different interests and distinct

goals will the court find the existence of multiple conspiracies. 

Bullis, 77 F.3d at 1560.

	Federal courts have specifically found that an ongoing drug

distribution conspiracy involving core members who buy and sell

drugs to various suppliers, dealers and customers establishes a

single common goal to distribute those drugs in violation of the

law.  Paiz, 905 F.2d at 1020.  Although each drug transaction could be viewed as an agreement in and of itself, those separate

agreements are geared toward the common goal of the drug

distribution network.  Paiz, 905 F.2d at 1020 n.4.  In such cases, “‘separate agreements often form the basis for finding the

existence of a single ongoing conspiracy.’”  Paiz, 905 F.2d at 1020 n.4, quoting United States v. Briscoe, 896 F.2d 1476, 1507 (7th Cir. 1990).  The integration of the separate agreements into a larger common plan with a common goal incorporates them into a

single conspiracy.  Paiz, 905 F.2d at 1020 n.4.

	In this case, defendants shared the single, common goal of

distributing drugs in the Walnut-Homan area.  The continuation of

that purpose throughout the conspiracy established that there was

only one conspiracy.  See Bullis, 77 F.3d at 1560.  Each of the defendants performed different functions to further the objective

of distributing drugs in the area.  Fayaode and Animashawn

supplied the drugs, Edwards oversaw the distribution operation,

and Nelson distributed the drugs to street salesman, while also conducting other activities out of the Kildare residence.  There

was no evidence that any of the defendants had a distinct

interest or goal separate from the goal of his coconspirators.

	In Kotteakos v. United States, the Supreme Court overturned the defendants’ convictions, finding that, instead of proving a

single conspiracy, the government proved eight or more different

conspiracies.  Kotteakos, 328 U.S. at 752, 90 L. Ed. at 1559, 66 S. Ct. at 1242.  The defendants in that case were convicted of a

single conspiracy to fraudulently obtain loans under the National

Housing Act.  However, the government failed to establish a

connection between the various defendants, except that each had

obtained a separate illegal loan through defendant Simon Brown. 

Kotteakos, 328 U.S. at 773, 90 L. Ed. at 1561, 66 S. Ct. at 1243.  Each defendant had the individual purpose of obtaining his own

loan and no common goal was proven.  Kotteakos, 328 U.S. at 773, 90 L. Ed. at 1571, 66 S. Ct. at 1252. 

	In contrast, in United States v. Paiz, the defendants were convicted of conspiracy to distribute and possess with the intent

to distribute marijuana.  The defendants argued there was a

variance between the indictment, which charged one conspiracy

encompassing 117 overt acts, and the evidence at trial, which

they alleged proved multiple conspiracies.  Paiz, 905 F.2d at 1018.  The court held that because the defendants had “knowingly

embraced a common criminal objective,” there was sufficient

evidence to support the jury’s determination that there was a single conspiracy.  Paiz, 905 F.2d at 1020.

	Like in Paiz, defendants here pursued an overall objective to distribute drugs in the Walnut-Homan area and committed

numerous overt acts in pursuit of that objective.  The drugs and

money involved passed through many hands and each conspirator

worked to keep the distribution network functioning.  There was

no evidence that any of the defendants had a separate goal.  Each

of them was involved in the network for an extended period of

time and continued to perform his function in the network through

numerous transactions.  We find there was sufficient evidence to

support the jury’s finding of a single conspiracy, and there was

no evidence that defendants were involved in multiple

conspiracies.  Therefore, there was no variance between the

indictment and the evidence presented at trial.

	Defendants further argue that the jury should have been

instructed on multiple conspiracies.  If the jury then found that

multiple conspiracies existed, rather than the one conspiracy

alleged by the State, they would have been obligated to acquit

defendants of criminal drug conspiracy.

	The decision to give or refuse a non-Illinois Pattern Jury

Instruction (IPI) is within the sound discretion of the trial

court.  People v. Thomas, 175 Ill. App. 3d 521, 528, 529 N.E.2d 1071 (1988).  The court should instruct the jury on multiple

conspiracies when there is a possibility of a variance between

the indictment and the proof.  Varelli, 407 F.2d at 746.

	Because we have already found that there was no possibility

of a variance in this case, the trial court did not abuse its

discretion in refusing to give the non-IPI jury instruction.

C.  Legally Inconsistent Verdicts

	Defendants Animashawn and Fayaode conclude that the

duplicitous indictment and the court’s refusal to instruct the

jury on multiple conspiracies resulted in legally inconsistent

verdicts.  Although we have already rejected both of these

arguments, we will address defendants’ contention that the jury

verdicts were legally inconsistent because they acquitted

defendants of possession with intent to deliver 400 to 900 grams

of heroin, but found them guilty of conspiracy based on the same

offense.  

	A logically inconsistent verdict may stand, but a legally

inconsistent verdict may not.  People v. Klingenberg, 172 Ill. 2d 270, 274 (1996).  Generally, a verdict which acquits and convicts

a defendant of "crimes composed of different elements, but

arising out of the same set of facts," is not legally

inconsistent.  Klingenberg, 172 Ill. 2d at 274.  However, a fact finder may not conclude that the same essential element exists

and does not exist.  People v. Hill, 315 Ill. App. 3d 1005, 1011 (2000).

	Verdicts that acquit a defendant of a predicate offense, but

convict him of a compound offense are legally inconsistent. 

Klingenberg, 172 Ill. 2d at 275.  A predicate offense is one that is an essential element of another (compound) offense. 

Klingenberg, 172 Ill. 2d at 274.  In determining whether a verdict is legally inconsistent, a reviewing court must look not

only at the statutory definitions of the crimes charged, but also

at the proof offered by the State at trial.  People v. Rhoden, 299 Ill. App. 3d 951, 957 (1998).

	In this case, defendants Fayaode and Animashawn were found

guilty of the crime of criminal drug conspiracy, but not guilty

of the completed crime that was the object of the conspiracy. 

Defendants incorrectly argue that the possession crime alleged in

count VIII was a predicate offense of criminal drug conspiracy. 

The criminal drug conspiracy statute does not require the

completion of a predicate offense.  One conspires to possess

narcotics by agreeing to possess them and taking steps toward

possessing them, not by completing possession.  See 720 ILCS

570/405.1 (West 2000).

	The Supreme Court has specifically found that “[a]

conspiracy is not the commission of the crime which it

contemplates, and neither violates nor 'arises under' the statute

whose violation is its object.”  Braverman, 317 U.S. at 54, 87 L. Ed. at 28, 63 S. Ct. at 102.  It is not necessary to sustain a

conspiracy conviction to charge and prove as substantive offenses

the overt acts listed in the conspiracy count.  Pinkerton v. United States, 328 U.S. 640, 644, 90 L. Ed. 1489, 1495, 66 S. Ct. 1180, 1182 (1946).  We find the verdicts here were not legally inconsistent.

	Defendants further argue that the verdicts were legally

inconsistent because Animashawn and Fayaode were convicted of

conspiracy to possess and deliver between 400 and 900 grams of

heroin, while Edwards, the alleged hub of the conspiracy, was

not.  We reject this argument for a number of reasons.

	First, legal inconsistency occurs when the jury finds that

the same essential element exists and does not exist, not when

different defendants are convicted of agreeing to commit

different acts in furtherance of an overall conspiracy.  Second,

this argument ignores the Illinois conspiracy statute, which

specifically states that it is not a defense to conspiracy if a

coconspirator was acquitted for the same offense.  720 ILCS

570/405.1(b) (West 2000).

	Defendants cite United States v. Varelli, United States v. Kotteakos, and Blumenthal v. United States, 332 U.S. 539, 92 L. Ed. 154, 68 S. Ct. 248 (1947), for the propositions that the hub

of a single conspiracy cannot be accountable for sales of fewer

grams of narcotics than the spokes and that coconspirators are

equally culpable for the acts of their leader.  We find that none

of the cases stand for these propositions.  In fact, they state

the opposite.  The Kotteakos and Varelli courts specifically held that it was improper for the trial court to instruct the jury

that the acts or statements of one conspirator may be considered

as evidence against any other defendant found to be a coconspirator.  Kotteakos, 328 U.S. at 770, 90 L. Ed. at 1569, 66 S. Ct. at 1250; Varelli, 407 F.2d at 747.  Similarly, the Blumenthal court stated that the danger in conspiracy cases is the possibility that the jury will improperly attribute evidence

against one defendant to the other defendants since they are

tried jointly.  Blumenthal, 332 U.S. at 559-60, 92 L. Ed. at 169, 68 S. Ct. at 257.  Clearly these cases do not support defendants’

argument.

	Finally, we note that the jury did not have to believe the

State’s argument that Edwards was the hub of the operation in

order to convict defendants of criminal drug conspiracy.  The

evidence was sufficient to support Edwards’ conviction even if he

could not be personally linked to every cache of drugs recovered

by the police.  Because Animashwn and Fayaode were the alleged

drug suppliers, it was logically consistent for the jury to

believe that they handled larger amounts of drugs than their co-

conspirators.  For these reasons, Edwards’ acquittal for

conspiracy to deliver between 400 and 900 grams was not legally

inconsistent with Animashawn’s and Fayaode’s convictions.

	II.  Pen-Register and Eavesdropping Orders

Constitutionality of the Nonconsensual

Electronic Surveillance Orders

	Defendants contend that the three electronic surveillance

orders entered pursuant to section 108B-3 of the Code of Criminal

Procedure of 1963 (725 ILCS 5/108B-3 (West 2000)) violated the Illinois Constitution.  According to defendants, article I,

section 6, of the Illinois Constitution permits law enforcement

officers to conduct electronic surveillance only when one party

to the conversation consents or “in the rarest and most extreme

cases of necessity.”

	Article I, section 6 states:

			“The people shall have the right to be

secure in their persons, houses, papers and

other possessions against unreasonable

searches, seizures, invasions of privacy or

interceptions of communications by

eavesdropping devices or other means.  No

warrant shall issue without probable cause,

supported by affidavit particularly

describing the place to be searched and the

persons or things to be seized.”  Ill. Const.

1970, art. I, §6.

The plain language of this section prohibits only unreasonable eavesdropping, not all nonconsensual eavesdropping.  Coryn v. City of Moline, 71 Ill. 2d 194, 200, 374 N.E.2d 211 (1978) (the best indication of the intent of the framers of the Illinois

Constitution is the actual language they adopted).

	The Illinois Supreme Court has held that the protection

against unreasonable searches and seizures afforded by article I,

section 6 is the same as that provided by the fourth amendment of the United States Constitution.  People v. Tisler, 103 Ill. 2d 226, 242, 469 N.E.2d 147 (1984).  Therefore, the Illinois

Constitution’s protection against unreasonable searches is

measured by the same standards as those used for the fourth

amendment to the United States Constitution.  Tisler, 103 Ill. 2d at 243.

	The United States Supreme Court has expressly held that

“under sufficiently 'precise and discriminate circumstances,' a

federal court may empower government agents to employ a concealed

electronic device 'for the narrow and particularized purpose of

ascertaining the truth of the ... allegations' of a 'detailed

factual affidavit alleging the commission of a specific criminal

offense.”  Katz v. United States, 389 U.S. 347, 355, 19 L. Ed. 2d 576, 584, 88 S. Ct. 507, 513 (1967), quoting Osborn v. United States, 385 U.S. 323, 329-30, 17 L. Ed. 2d 394, 399-400, 87 S. Ct. 429, 432-33 (1966); see also Commonwealth v. Doty, 345 Pa. Super. 374, 388, 498 A.2d 870, 877 (1985) (Pennsylvania

constitution guarantee against unreasonable searches and seizures

serves only to prohibit a nonconsensual electronic interception

without warrant or court order issued upon probable cause).

	In Illinois, nonconsensual eavesdropping orders may be

obtained pursuant to section 108B-3 of the Code of Criminal

Procedure.  Section 108B-3 provides:

			“The State’s Attorney, or a person

designated in writing or by law to act for him and to perform his duties during his

absence or disability, may authorize, in

writing, an ex parte application to the chief

judge of a court of competent jurisdiction

for an order authorizing the interception of

a private oral communication when no party

has consented to the interception and (i) the

interception may provide evidence of, or may

assist in the apprehension of a person who

has committed, is committing or is about to

commit, a violation of *** Section 401, 401.1

(controlled substance trafficking), 405, ***

or 407 of the Illinois Controlled Substances

Act ***.”  725 ILCS 5/108B-3 (West 2000). 

	Applications for nonconsensual eavesdropping orders must be

made in writing, upon oath or affirmation, and must include the

following:  (1) the facts relied upon by the applicant; (2) a

showing that there is probable cause to believe that the

communication will occur at the particular place of interception;

(3) the objective of the investigation; (4) a statement of the

period of time for which the interception is required to be

maintained; (5) a particular statement of facts showing that

other normal investigative procedures have been tried and have

failed, or reasonably appear unlikely to succeed if tried, or are

too dangerous to employ; and (6) a statement of facts concerning all previous applications known to the applicant involving any

person whose communication is to be intercepted.  725 ILCS

5/108B-4 (West 2000).  

	To enter an order for nonconsensual eavesdropping, the chief

judge must determine from the application that:  (1) there is

probable cause to believe the person whose communication is to be

intercepted is committing, has committed, or is about to commit

an offense enumerated in section 108B-3; (2) there is probable

cause to believe that a particular communication concerning such

offense may be obtained through the interception; (3) normal

investigative procedures with respect to the offense have been

tried and have failed or reasonably appear to be unlikely to

succeed if tried or are too dangerous to employ; and (4) the

officers authorized to conduct the electronic surveillance are

certified.  725 ILCS 5/108B-5 (West 2000).  

	We find the requirements in Article 108B provide for

adequate judicial supervision and sufficiently protect a

suspect’s constitutional right to be free from unreasonable

nonconsensual eavesdropping.  Because the applications and orders

in this case complied with the particular requirements of section

108B-3, defendants’ assertion that the nonconsensual

eavesdropping orders were unconstitutional is without merit.

	Defendants further contend that section 108B-7 of the Code

of Criminal Procedure (725 ILCS 5/108B-7 (West 2000)) violates

the warrant clauses of article I, section 6, of the Illinois Constitution and the fourth amendment of the United States

Constitution.  Defendants argue the warrant clauses require

particularity with respect to the things to be seized, but

section 108B-7 gives officers unfettered discretion regarding the

scope and length of time communications may be seized.

	First, we agree with the trial court that the warrant clause

contained in article I, section 6 of the Illinois Constitution

does not apply to the interception of communications.  The

Illinois Constitution’s warrant clause requires a finding of

probable cause for warrants that seek to search a place and seize

a person or thing.  Ill. Const. 1970, art. I, §6.  The framers of

the Constitution specifically rejected an amendment that would

have made the warrant clause applicable to the interception of

communications, stating that communications could not be

described with the same particularity as specific items of

evidence.  See 6 Record of Proceedings, Sixth Illinois

Constitutional Convention 1536-39.

	In addition, section 108B-7 meets the particularity

requirements of the fourth amendment.  Section 108B-7(b) provides

that interceptions may continue for the period of time necessary

to achieve the objective of the authorization, as long as that

period does not exceed 30 days.  It further states that

eavesdropping orders entered under the section must require the

interception to begin and terminate as soon as practicable and be

conducted in such a manner as to minimize the interception of communications not otherwise subject to interception.  725 ILCS

5/108B-7(b) (West 2000).  The federal wiretapping statute uses

practically identical language (see 18 U.S.C. §2518 (5) (2000)),

and has been found constitutional by various federal courts (see United States v. Ramsey, 503 F.2d 524, 526 (7th Cir. 1974); United States v. Tortorello, 480 F.2d 764, 775 (2d Cir. 1973) (Title III is not unconstitutional on its face); United States v. Cox, 462 F.2d 1293, 1303 (8th Cir. 1972); United States v. Cox, 449 F.2d 679, 684 (10th Cir. 1971)).  As a result, Article 108B

does not violate the warrant clauses of the Illinois and United

States Constitutions.

[the following is nNonpublishable material removed here]

B.  Efforts to Minimize the Intrusion

	Defendants argue that the statutory requirement to minimize

the intrusion of the eavesdropping (18 U.S.C. §2518(5) (2000))

was left to the police officers’ “unfettered discretion.” 

Defendants contend that, as a result, the police made no effort

to minimize the intrusion.  The minimization requirement of

section 2518(5) must be considered on a case-by-case basis in

light of the particular facts of each case.  Cox, 462 F.2d at 1300.  Defendants fail to provide any facts or cite to any law to

establish the officers in this case were overly intrusive in

violation of Supreme Court Rule 341(e)(7).  177 Ill. 2d R.

341(e)(7) (an appellant’s brief must include cohesive legal

arguments, with citation to legal authority and pages in the record on which the appellant relies).

	In addition, this issue has been waived.  Although

defendants argued in the trial court that the Illinois

Wiretapping Statute lacked the proper standards to minimize the

interception of communications in violation of Title III of the

Omnibus Crime Control and Safe Streets Act (18 U.S.C. §2518(5)

(2000)), they did not raise the issue of whether the police

minimized the intrusion in this case.  People v. Enoch, 122 Ill. 2d 176, 186, 522 N.E.2d 1124 (1988).

		C.  Constitutionality of the Pen Register Orders 

	Defendants next contend that the pen register orders

obtained in this case violated article I, section 6 of the

Illinois Constitution (Ill. Const. 1970, art. I, §6) because they

were entered pursuant to sections 3122 and 3123 of Title 18 of

the United States Code, which do not require a finding of

probable cause.  See 18 U.S.C. §3122 and 3123 (2000).

	The United States Supreme Court has held that the use of a

pen register, which records the numbers dialed to and from a

specific telephone number, is not a search within the meaning of

the fourth amendment.  Smith v. Maryland, 442 U.S. 735, 745-46, 99 S.Ct. 2577, 61 L.Ed. 2d 220 (1979).  In Smith, the majority stated that an individual has no expectation of privacy in the

phone numbers he dials, and, even if he did, such an expectation

is not legitimate.  Smith 442 U.S. at 742-44.  Therefore, the federal government does not require a finding of probable cause prior to the use and installation of a pen register.  Smith, 442 U.S. at 745-46.

	Contrary to the Supreme Court’s finding, a number of state

courts have found that the use of a pen register is a search

protected under their state constitutions.  These state courts

have required the issuance of a warrant prior to the government’s

use of such a device.  See Richardson v. State, 865 S.W.2d 944, 953-54 (1993) (the use of a pen register may constitute a search

under the Texas Constitution; the relevant inquiry is whether

such a search would be unreasonable absent probable cause);

Commonwealth v. Melilli, 521 Pa. 405, 413-14, 555 A.2d 1254 (1989) (a pen register cannot be used by law enforcement

authorities without an order based on probable cause); Shaktman v. State, 553 So.2d 148, 151-52 (1989) (privacy interests protected by the Florida Constitution require the state to show

the use of a pen register is justified by a compelling state

interest and that it is the least intrusive means for

accomplishing its goal); State v. Thompson, 114 Idaho 746, 751, 760 P.2d 1162 (1988) (use of a pen register is a search under the

Idaho Constitution); but see State v. Valenzuela, 130 N.H. 175, 536 A.2d 1252 (1987) (the use of a pen register is not a search

under the state constitution); State v. Schultz, 252 Kan. 819, 834-35, 850 P.2d 818 (1993) (there is no reasonable expectation

of privacy in telephone or bank records, which the customer knows

others will see).

	Defendants argue the Illinois Constitution similarly

requires a finding of probable cause prior to the use of a pen

register.  Although in People v. Tisler, the Illinois Supreme Court held that the Illinois Constitution’s protection against

unreasonable searches and seizures is the same as that provided

by the fourth amendment of the United States Constitution

(Tisler, 103 Ill. 2d at 242), the supreme court has also held that article I, section 6 provides more protection against the

invasion of an individual’s privacy than does the United States

Constitution.  In re May 1991 Will County Grand Jury, 152 Ill. 2d 381, 390, 604 N.E.2d 929 (1992).  Article I, section 6 provides

in part:  “The People shall have the right to be secure in their

persons, houses, papers and other possessions against

unreasonable searches, seizures, invasions of privacy or interceptions of communications by eavesdropping devices or other

means.”  (emphasis added) Ill. Const. 1970, art. I, §6; compare U.S. Const., 4th Amend.  Illinois courts have not read the

additional “invasions of privacy” language in article I, section

6 to expand the warrant requirements of the Fourth Amendment, but

to apply to invasive techniques of law enforcement not governed

by the fourth amendment.  People v. Williams, 275 Ill. App. 3d 249, 255, 655 N.E.2d 1071 (1995).

	However, we need not reach the question of whether pen

registers are considered invasive techniques requiring a finding of probable cause under the Illinois Constitution, as we find

defendants lack standing to challenge the use of the pen

registers.  The protection against unreasonable searches and

seizures is a personal right, which may not be vicariously

asserted.  Rakas v. Illinois, 439 U.S. 128, 133-34, 99 S. Ct. 421, 58 L.Ed. 2d 387 (1978).  In order to legally challenge a

search or seizure, a defendant must establish he has a legitimate

expectation of privacy in the property seized (Rakas, 439 U.S. at 143 n.12) and that expectation is one society views as reasonable

(Katz v. United States, 389 U.S. 347, 361, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967)). Generally, an individual who owns or lawfully possesses property has a legitimate expectation of privacy in

that property.  Rakas, 439 U.S. at 143 n.12.  However, where a person’s presence on or control over the property is wrongful,

his expectation of privacy is not one society recognizes as

reasonable.  Rakas, 439 U.S. at 143 n.12.

	The question of whether a defendant has a legitimate

expectation of privacy in certain property has been framed by

some courts as a question of whether he has standing to challenge

an allegedly illegal search or seizure.  See People v. Wimbley, 314 Ill. App. 3d 18, 22-23, 731 N.E.2d 290 (2000).  For instance,

in Alderman v. United States, 394 U.S. 165, 176, 89 S. Ct. 961, 22 L. Ed. 2d 176 (1969), the Supreme Court held that a person who

was not a party to unlawfully wiretapped conversations or who did

not own the premises on which such conversations took place did not have standing to contest the legality of the surveillance,

even if he was the “target” of the surveillance.  Although the

State must raise the issue of standing, it is then the

defendant’s burden to establish that he has standing to challenge

an illegal seizure.  People v. Holloway, 86 Ill.2d 78, 91, 426 N.E.2d 871 (1981); People v. Capuzi, 308 Ill. App. 3d 425, 429, 720 N.E.2d 662 (1999); see also United States v. Torres, 32 F.3d 225, 230 (1994) (defendant lacked standing to challenge seizure

of marijuana because he failed to submit evidence that he had a

legitimate expectation of privacy in the area searched or the

item seized).

	In this case, the State was granted permission to use pen

register and caller identification trap and trace devices to

record the number, date, and time of calls made to and from

certain telephones, as well as the length of time the receiver

was off the hook.  Pen registers neither disclose the content of

the telephone calls (People v. Turner, 35 Ill. App. 3d 550, 570, 342 N.E.2d 158 (1976)), nor the identity of the callers.  The

challenged pen registers were obtained for telephone numbers in

the names of Crystal Bennett and German Ferrero (The pen register

obtained for defendant Edwards’ telephone was never used to

obtain an eavesdropping order.  Therefore, any error in obtaining

that order would have been harmless.).  Defendants were not the

subscribers of the telephone numbers, nor did they own or lease

the home to which Crystal Bennett’s telephone was registered (the telephones in Ferrero’s name were cellular telephones).

	At the suppression hearing, defendants’ only argument in

response to the State’s contention that they lacked standing to

challenge the pen registers was that there is no constitutional

requirement that a person must own property to challenge the

search of that property.  Although this is true, in the absence

of ownership, defendants must provide some other evidence that

they had a reasonable expectation of privacy in the telephones

and their records.  See People v. Kidd, 178 Ill. 2d 92, 135-36, 687 N.E.2d 945 (1997).  Defendants did not establish, or even

assert, that they were the individuals using the telephones

during the time the pen registers were employed (in fact, there

is no indication these defendants ever used or controlled the

telephones in any way).  Even if we were to assume they were the

users, there is no evidence that defendants were legally in

possession of the telephones, which were not registered in their

names.  Because defendants failed to assert they had any property

or possessory interest in the telephone records obtained by the

pen registers, we find they lacked standing to challenge the

legality of the seizure.  

	D.  Propriety of State’s Attorney’s Authorization of 

	Applications For Consensual Eavesdropping Orders

	Defendants next argue that three of the consensual wiretap

applications were not personally authorized by State’s Attorney

Jack O’Malley in violation of section 108A-1 of the Code of Criminal Procedure.  725 ILCS 5/108A-1 (West 2000).

	At the time the applications were submitted, section 108A-1

stated:

		“The State’s Attorney may authorize an

application to a circuit judge or an

associate judge *** and such judge may grant

in conformity with this Article, an order

authorizing or approving the use of an

eavesdropping device by a law enforcement

officer or agency having the responsibility

for the investigation of any felony under

Illinois law where any one party to a

conversation to be monitored, or previously

monitored in the case of an emergency

situation as defined in this Article, has

consented to such monitoring.”  725 ILCS

5/108A-1 (West 2000). 

Section 108A-3 requires that the application include the identity

of “the State’s Attorney authorizing the application.”  725 ILCS

5/108A-3(a)(1) (West 2000).  

	Defendants argue that an application for a consensual

eavesdropping order must be made by the State’s Attorney himself. 

However, this court has previously held that there is no

requirement the State’s Attorney’s authorization be in writing. 

People v. Lewis, 84 Ill. App. 3d 556, 559-60, 406 N.E.2d 11 (1980).  The application is proper where the State’s Attorney was

consulted and authorized an assistant State’s Attorney to proceed

with the eavesdropping application under paragraph 108A-1. 

Lewis, 84 Ill. App. 3d at 559-60.  Only the identity of the authorizing State’s Attorney must be included in the

eavesdropping application.  725 ILCS 5/108A-3(a)(1) (West 2000).

	Two of the applications in this case (July 27, 1993, and

August 23, 1993) stated that an assistant State’s Attorney signed

the application with “the authority and consent” of the State’s

Attorney.  We find these two applications were properly made with

the authorization of the State’s Attorney.  

	The third application, however, was authorized by the First

Assistant State’s Attorney, who instructed a Deputy State’s

Attorney to sign because the State’s Attorney was unavailable. 

An application for eavesdropping may be authorized by an

assistant State’s Attorney if the State’s Attorney is unavailable.  In People v. Grano, 286 Ill. App. 3d 278, 676 N.E.2d 248 (1996), an assistant State’s Attorney authorized an

eavesdropping application, expressly stating that his signature

was “in the absence of the State’s Attorney.”  Grano, 286 Ill. App. 3d at 292.  Citing People v. Silver, 151 Ill. App. 3d 156, 502 N.E.2d 1141 (1986), the Grano court rejected the defendant’s argument that the statute only permitted the State’s Attorney to

authorize such applications.  The court found that, because the State’s Attorney was unavailable, any error in the authorization by an assistant State’s Attorney was merely a technical violation

of the statute.  Grano, 286 Ill. App. 3d at 292.  Such a technical violation does not undermine the purpose of the statute, and does not require suppression of the evidence

obtained through the eavesdropping order.  Grano, 286 Ill. App. 3d at 292.

	This was the case here where the First Assistant State’s

Attorney authorized the application for the consensual

eavesdropping order and expressly stated that the State’s

Attorney was unavailable.  In light of Grano and Silver, any error would have been a technical violation of the statute, which

does not require the evidence obtained through the order to be

suppressed.

	Finally, defendants argue that a 2001 amendment to section

108A-1 supports the contention that only the State’s Attorney

could authorize applications prior to the amendment.  After the

amendment, section 108A-1 provided in part, “[t]he State’s

Attorney or an assistant State’s Attorney authorized by the State’s Attorney may authorize an application.”  (new language italicized) Pub. Act 92--0413, eff. August 17, 2001.  As already

discussed, however, there was case law prior to the amendment,

holding that an assistant State’s Attorney’s authorization was a

harmless technical violation. 

	As a result, the trial court’s denial of defendants’ motion

to suppress based on allegedly improper authorizations for the consensual eavesdropping applications was proper.

	E. Failure of Normal Investigative Procedures

 	Defendants further contend that the nonconsensual eavesdropping applications violated section 108B-4(a)(3)(viii) of

the Code of Criminal Procedure (725 ILCS 108B-4(a)(3)(viii) (West

2000)) because they did not show that normal investigative

procedures had failed.

	On the contrary, the affidavit submitted in support of the

eavesdropping applications stated that normal investigative

procedures could not accomplish all of the goals of the

investigations for a number of reasons: (1) the use of

confidential informants was limited due to the lack of police

access to the entire organizational structure and the fear that

exposure would result in physical harm; (2) interviews with

unwitting known associates risked exposure of the investigation;

(3) an undercover police officer or confidential informant could

not infiltrate the upper echelon of the organization; (4) the use

of search warrants had been of very limited value; (5) the use of

confidential informants, undercover police officers and standard

surveillance techniques would most likely not uncover the

location of hidden drug caches, proceeds, assets, and methods

used to launder proceeds; (6) targeted members of the

organization often used evasive driving techniques to thwart

surveillance; (7) the structure of the organization was designed

to keep the upper echelon highly insulated and telephones were the primary method of operation, making it extremely difficult to

penetrate the organization’s structure; and (8) because assets of

the organization were often concealed in the names of others,

conventional asset forfeiture techniques without the aid of

electronic interception would be ineffective.

	Defendants also argue that police penetration of the Black

Souls organization showed the investigation had been successful. 

We disagree.  The applications and supporting affidavit for the

nonconsensual eavesdropping orders listed Edwards, Nelson, others

not party to this appeal, and “others yet unknown” as

participating in the narcotics offenses.  One of the objectives

of the eavesdropping was to identify the organization’s drug

suppliers (later named as Animashawn and Fayaode), who officers

had been unable to identify through normal investigative

procedures.  In addition, the police sought to identify other

coconspirators, accomplices, agents, deliverers and customers. 

The affidavits stated that the eavesdropping was necessary to

procure evidence for the prosecution and conviction of all

members of the narcotics organization; to identify all witnesses

to the crimes who could give evidence against Black Soul members

and who could assist the police in identifying and apprehending

Black Soul members; to determine the methods of transportation,

payment, packaging, storage, and distribution; to seize illegal

controlled substances and proceeds; and to identify nominees used

to mask possession of assets and their whereabouts.  

	We reject defendants’ contention that the affidavit was

conclusory and lacked necessary factual support.  The affidavit

was sufficiently detailed and contained a significant amount of

factual support for the issuance of the two nonconsensual

eavesdropping orders.

	Given all of this information, the applications and

supporting affidavits sufficiently complied with section 108B-

4(a)(3)(viii).

	F.  Length of Surveillance Pursuant

to Pen Register Orders

	Defendants argue that the 60-day orders allowing the use of

pen registers and trap and trace devices (the eavesdropping

orders were for 30-day periods) violated the federal prohibition,

pursuant to Title III of the Omnibus Crime Control and Safe

Streets Act, against surveillance orders and extensions lasting

more than 30 days.  18 U.S.C. §2518(5) (2000).

	First, we note that defendants have waived this issue for

appeal, as they failed to raise it in their motions to suppress

and in their posttrial motions.  People v. Enoch, 122 Ill.2d at 186.

	Waiver aside, it is well settled that pen registers are not governed by Title III because, under federal law, they are not

considered “interceptions.”  United States v. New York Tel. Co., 434 U.S. 159, 166-168, 98 S. Ct. 364, 54 L. Ed. 2d 376 (1977);

People v. Turner, 35 Ill. App. 3d 550, 570, 342 N.E.2d 158 (1976).  Accordingly, the 60-day pen register orders were in

compliance with section 3123 of Title 18 of the United States

Code (18 U.S.C. §3123 (2000)) and need not comply with Title III.

	G.  Consent of Parties to Intercepted Conversations

	Defendants argue that the police officers, who were listed

as consenting parties on the applications for consensual

eavesdropping orders, were not actually parties to the

intercepted conversations.  

	This argument has been waived, as it was raised for the

first time in defendants’ reply brief.  Hartmax Corp. and Subsidiaries v. Bower, 309 Ill. App. 3d 959, 969, 723 N.E.2d 820 (1999).

					III.  Voir Dire

	Defendants Edwards, Animashawn, and Fayaode argue that the

trial court failed to question four jurors about the effect of

gang evidence on their ability to be fair and impartial.  

	Defendants provide no citation to the record in support of

this argument (see 177 Ill. 2d R. 341(e)(7) (appellant’s brief

must include an argument containing appellant’s contentions and

the reasons therefor, with citation to legal authority and pages

in the record on which appellant relies)), and the State disputes

that defendants made such a request during voir dire.  Because

there is no evidence defendants brought the alleged omission to

the trial court’s attention and they did not raise it in a post-

trial motion, the issue is waived.  Enoch, 122 Ill. 2d at 186.

	IV.  Interpretation of Intercepted Conversations

	Defendants Edwards, Fayaode, and Animashawn contend that the

trial court erred in permitting Officer Bielecki to testify

regarding the identification of voices and the meaning of phrases

heard on the audiotapes of the intercepted telephone

conversations.  Defendants argue that a non-expert witness may

not testify about the meaning of an out-of-court statement.  They

further argue that most of the phrases and words interpreted by

the officer were ordinary conversational speech, that Officer

Bielecki interpreted them to favor the State, and that the

interpretations prevented the jurors from drawing their own

conclusions from context of the conversations.  Defendant Nelson

also argues that the State failed to provide an adequate

foundation for Officer Bielecki’s qualifications as an expert.

	Experience and knowledge beyond that of the average citizen

can qualify a witness as an expert.  People v. Miller, 173 Ill. 2d 167, 186, 670 N.E.2d 721 (1996).  The degree of experience and

knowledge required of an expert is directly related to the

complexity of the subject matter and the corresponding likelihood

of error if the witness is insufficiently familiar with the

subject matter.  People v. Park, 72 Ill. 2d 203, 215, 380 N.E.2d 795 (1978).  A trial court’s determination that a witness

qualifies as an expert will not be overturned absent an abuse of

discretion.  People v. Hunley, 313 Ill. App. 3d 16, 28, 728 N.E.2d 1183 (2000).

	In this case, the trial court properly qualified Officer

Bielecki as an expert in the field of narcotics law enforcement,

particularly with regard to drug trafficking in the Walnut-Homan

area.  The officer testified that he had been a police officer

for 12 years, including seven years in the Walnut-Homan area and

five years in the police department’s narcotics section.  Officer

Bielecki stated that he was a patrol officer and a tactical

officer in the Walnut-Homan area and had been involved in a large

number of major, mid-level and street-level narcotic

investigations.  Over 100 of his street-level investigations had

specifically involved cocaine and heroin.  He had interviewed

hundreds of cooperating citizens and arrestees, and had been

involved in thousands of arrests.  He had seized narcotics over

one thousand times and had been involved in surveillance

activities hundreds of times.  He testified as to how heroin was

used and packaged, and stated he was familiar with the

terminology and code words used by heroin traffickers.

	During this investigation, Officer Bielecki went to the

Walnut-Homan area daily or every other day to make purchases and

arrests.  He regularly interacted with street contacts,

residents, arrested persons and other undercover officers.  He

also stated that he was familiar with defendants’ voices, except

Fayaode’s, but that Fayaode spoke with a recognizable accent.

	Given Officer Bielecki’s experience in the Walnut-Homan

area, with narcotics enforcement, in conducting surveillance, and his interactions with drug dealers, other undercover officers and

residents, we find the trial court did not abuse its discretion

in qualifying him as an expert.

	Officer Bielecki interpreted a number of phrases used by

defendants on the surveillance tapes.  Given the extent of the

slang used in the recorded conversations, we cannot conclude the

jury was capable of interpreting the audiotapes without the

assistance of an expert.  The fact that some of the interpreted

words may have had innocent meanings did not preclude Officer

Bielecki’s testimony.  The officer was cross-examined by the

defense, and the jury was free to reject his interpretations (People v. Rodriguez, 312 Ill. App. 3d 920, 932 (2000) (the trier of fact determines the credibility of the witnesses, the weight

to be given their testimony, and the inferences to be drawn

therefrom)).  

	Nelson argues that inconsistencies in Officer Bielecki’s

testimony showed he was improperly qualified as an expert. 

However, differing interpretations of the same terms used in

different contexts do not necessarily indicate inconsistent

testimony.  We also find unconvincing Nelson’s argument that the

speakers would not have been using slang to disguise their intent

because the conversations were surreptitiously recorded.  For all

of these reasons, Officer Bielecki’s testimony regarding the

voices on the tapes and the meaning of terms and phrases used in

the narcotic trafficking business was properly admitted at trial.

	V.  Cross-examination Regarding a Cellular Telephone

	Defendants Edwards, Animashawn, and Fayaode contend that the

trial court erred in not allowing defense counsel to cross-

examine Agent Carlson about a cellular telephone recovered from

Edwards’ residence.

	Defendants mischaracterize the record.  It is clear from the

trial transcript that defense counsel did question Agent Carlson

about the delay in examining the recovered telephone.  The court

merely prevented defense counsel from eliciting testimony

regarding a previous trial date set for this cause of action.

	VI.  Admission of the Videotape

	Defendant Nelson argues that the videotape of Edwards’

birthday party was erroneously admitted as evidence at trial

because it was irrelevant, cumulative and prejudicial.  The

videotape depicted scenes of Edwards’ 1991 birthday party that

was attended by various Black Soul members, including defendant

Nelson.  The videotape showed attendees flashing gang signs,

holding up jewelry and using profanity.

	At trial, the State presented the videotape in response to

Nelson’s defense that his actions in 1993 were the result of

compulsion.  As a result, the evidence was relevant in showing

Nelson’s voluntary association with Edwards prior to the alleged

conspiracy.  For the same reason, there is no merit to

defendant’s arguments that the videotape was cumulative,

prejudicial, or too remote because it was recorded in 1991.

	VII.  Evidence of Uncharged Drug Purchases

	Defendant Nelson contends that the evidence of undercover

narcotics purchases from Black Soul member David Robinson and

from Moises Stamp (not identified as a Black Soul member) should

not have been admitted at trial because it was evidence of

uncharged other crimes.

	Defendant did not object to this evidence at trial or in a

posttrial motion.  Therefore, the issue is waived.  Enoch, 122 Ill. 2d at 186.  Furthermore, we decline to consider the issue

under the plain error doctrine (134 Ill. 2d R. 615(a)) due to the

overwhelming evidence of Nelson’s involvement in the conspiracy.

VIII.  Question from the Jury

	Edwards argues that his right to counsel was violated when

the trial court responded to a jury note outside his and his

counsel’s presence.  Defendant has waived this argument by

failing to support it with citation to the record.  Acevedo, 191 Ill. App. 3d at 366.

	Furthermore, although the record does reflect the jurors

asked if they could change the foreperson, it does not show that

defendant and his attorney were absent at the time or that the

jury sent the judge a note.  Because these matters are outside the record, they cannot be addressed on direct appeal.  People v. Woolley, 178 Ill. 2d 175, 204, 687 N.E.2d 979 (1997).

IX.  Sentences

	Defendants Edwards, Fayoade, and Animashawn contend that the court sentenced them to excessive prison terms.  The State

initially argues that defendants have waived this issue because

they did not object at their sentencing hearings or file motions

to reconsider their sentences.  Although the sentencing motion

and the transcript of the motion hearing do not appear in the

record, the docket sheet supports defendant Edwards’ assertion

that he did file a motion to reconsider sentence.  Defendants do

not contest the State’s assertion that Fayaode and Animashawn did

not file a post-sentencing motion.  As a result, these two

defendants have not preserved the issue for review.  People v. Reed, 177 Ill. 2d 389, 393, 686 N.E.2d 584 (1997).

	Defendant Edwards primarily contends that the State argued

improper factors at the sentencing hearing.  He argues the court

must have relied on some of those improper factors because it

sentenced him to the maximum prison term.  We note that, although

defendant cites to the drug conspiracy statute, he does not cite

to a single case in this section of his opening brief.  He

further provides either no citations to the record, incomplete

record cites, or incorrect record cites.  Acevedo, 191 Ill. App. 3d at 366 (a defendant must provide factual support for his

argument by citing to the record).

	It is well settled that trial courts have broad

discretionary powers in sentencing, and their decisions are to be

given great deference.  People v. Stacy, 193 Ill. 2d 203, 209, 737 N.E.2d 626 (2000).  However, the court must base a defendant’s sentence on the particular circumstances of the case,

adhering to an individualized sentencing scheme.  People v. Fern, 189 Ill. 2d 48, 55, 723 N.E.2d 207 (1999).  The judge assesses

not only the crime itself, but also “the defendant’s credibility,

demeanor, general moral character, mentality, social environment,

habits, and age.”  Stacy, 193 Ill. 2d at 209.  The burden is on defendant to demonstrate the trial court abused its discretion in

imposing the sentence.  People v. Harris, 314 Ill. App. 3d 409, 420, 731 N.E.2d 928 (2001).

	The sentencing range for criminal drug conspiracy to possess

with the intent to deliver 15 grams or more but less than 100

grams of heroin is 6 to 30 years.  720 ILCS 570/405.1(c) (West

2000); 720 ILCS 570/401(a)(1)(A) (West 2000).  Defendant Edwards

was sentenced to a prison term of 30 years.

	The trial court’s comments at sentencing reflect that the

court properly considered the impact of the organized sale of

narcotics on the community in the Walnut-Homan area, as well as

its impact on the lives of those involved in the narcotics

organization.  The court further took into account defendant’s

lack of potential for rehabilitation and his moral character in

contributing to the ruin of a community.  There is no evidence

that the court adopted any alleged improper factors raised by the

State.  We find the defendant’s sentence was not disproportionate

to the nature of his offense and the trial court did not abuse

its discretion in sentencing him to 30 years in prison.

					X.  Mittimus

	Defendant Nelson contends, and the State concedes, that the

mittimus incorrectly reflects he was convicted of the manufacture

and delivery of a controlled substance.  Pursuant to Supreme

Court Rule 615 (134 Ill. 2d R. 615), a reviewing court may

correct the mittimus at any time without remanding the cause to

the trial court.  See People v. Davis, 303 Ill. App. 3d 684, 688, 708 N.E.2d 1181 (1999).  Therefore, we order that the mittimus be

corrected to reflect defendant Nelson’s conviction for criminal

drug conspiracy to deliver less than 10 grams of heroin, to

possess 15 grams or more but less than 100 grams of heroin with

the intent to deliver, and to possess 400 grams or more but less

than 900 grams of heroin with the intent to deliver.

	XI.  Edwards’ Postconviction Petition

	Lastly, defendant Edwards contends that the trial court

erred in summarily dismissing his pro se postconviction petition.  The petition alleged that the trial court threatened to sentence

defendant to the maximum 30-year prison term if he turned down

the court’s offer of a 29-year sentence in exchange for a guilty

plea.1  Defendant argues that the petition presented the gist of a meritorious claim.  

	Pursuant to section 122-2 of the Post-Conviction Hearing

Act, a postconviction petition must be supported by “affidavits, records, or other evidence” or must explain why such support is

unavailable.  725 ILCS 6/122-2 (West 2000).  In People v. Collins, the Illinois Supreme Court found that a defendant’s sworn verification in a postconviction petition cannot serve as a

substitute for the “affidavits, records, or other evidence”

mandated by section 122-2 of the Act.  People v. Collins, No. 90679 (Ill. March 15, 2002), slip op. at 5.  The sworn

verification “confirms that the allegations are brought

truthfully and in good faith,” while the affidavits required by

section 122-2 “show[] that the verified allegations are capable

of objective or independent corroboration.”  Collins, slip op. at 6.  Summary dismissal of a petition is justified where a

defendant has provided no affidavits, records, or other evidence

to support the petition, nor an explanation for the absence of

such documentation.  Collins, slip op. at 5.

	In this case, defendant has provided only his sworn

verification in support of his allegation that the trial court

threatened to sentence him to the maximum term if he refused a

plea bargain.  Although defendant points out that the threat is

not part of the record, he does not explain why he could not

provide the affidavit of his attorney, to whom the threat was

allegedly made.  Because defendant’s pro se petition was unsupported by affidavits, records, or other evidence and

provided no explanation for the absence of such documentation, it

was properly dismissed by the trial court.

[the preceding is nonpublishable]

	Accordingly, the judgment of the circuit court is affirmed. 

As discussed in the nonpublishable portion of this opinion, we

order the mittimus corrected to reflect defendant Nelson’s

conviction for criminal drug conspiracy.

	Affirmed; mittimus corrected.

	McBRIDE P.J., and BURKE J., concur.