Appeal from the Circuit Court of Sangamon County; the Hon.
PAUL C. VERTICCHIO and CREEL DOUGLASS, Judges, presiding.
Affirmed in part, reversed in part.
Defendant appeals from a judgment of conviction and a sentence of one to three years upon two counts of an indictment, each charging acquisition of drugs by fraud and deceit in violation of the Criminal Code of 1961, c 38, § 22-39 (Ill Rev Stats, 1965).
It is defendant's theory that the denial of his motion to suppress evidence violated his constitutional rights and that the prosecution failed to prove the purchase of any narcotic as alleged in the indictment. Upon the motion to suppress, it is defendant's theory that evidence and witnesses to the offense were discovered through identification of the defendant at a police "lineup" at a time when no warrant was outstanding, or charge pending on the offenses at issue.
On March 30, 1965, defendant was in jail, having been unable to post bond while awaiting prosecution on other charges. On April 15, 1965, officers of the Illinois Narcotics Bureau discovered defendant's name on the exempt narcotics registers of the Osco Drug Store and of the Watt Brothers Drugs, both in Springfield, Illinois, showing the purchase of two exempt medicinal preparations within 48 hours, i.e., on March 4, 1965. The narcotics officers procured members of the Sheriff's department to take the defendant with four other negro youths of comparable age and stature to the city police station to be placed in a "lineup." Defendant refused to go and stated that he wanted to talk with his counsel, appointed to represent him on other pending charges. At the police station defendant called his appointed attorney, who advised him to refuse to appear in the "lineup" and defendant persisted in his refusal to participate in the procedure. The record is not clear as to whether the other prisoners were to be in the "lineup" in connection with their offenses, but there appears to be a reasonable inference that they were only to be viewed for purposes of comparison with the defendant. Upon defendant's refusal to go into the "lineup" room, clerks and employes of the respective drug stores walked through a corridor where defendant was waiting, at which time there was some opportunity for them to observe him. Defendant testified to his strenuous efforts to conceal his face. The testimony of the officers conflicts with that of the defendant as to whether defendant was jerked to his feet in such a manner as to disclose his features. It is not clear from the record as to whether or not any of the witnesses did, in fact, identify the defendant in the corridor of the police station, but there is no question that they did make such identifications at the trial, and there is, in fact, no evidence which questions the identity of the defendant as making the purchases and signing the exempt narcotics register and writing his then address.
At a hearing upon the motion to suppress, the trial court found that there was, in fact, a complaint filed and an unserved warrant outstanding upon these charges at the time of the aborted "lineup." No evidence contradicts this conclusion.
The witnesses identifying the defendant at the trial as making the several purchases were employes of the respective pharmacies who made the sales in evidence. The investigation of the respective exempt narcotic registers disclosed their several identities, and the fact that they were requested to view the defendant for purposes of identification contradicts the contention that they were discovered through the questioned "lineup" procedures. Such circumstances do not come within the ambit of People v. Albea, 2 Ill.2d 317, 118 N.E.2d 277, wherein a witness was discovered, and his identity ascertained, during the course of, and as a result of an illegal search. This person was suppressed in the sense that his testimony was ruled inadmissible.
Defendant urges that he was deprived of the equal protection of the law by being compelled to participate in the "lineup." He relies upon Butler v. Crumlish, 229 F. Supp. 565 (1964), wherein the District Court for the Eastern District of Pennsylvania issued a temporary injunction restraining police officers from placing an indigent prisoner in a "lineup" upon the statement that the procedure produced a material distinction between defendants who could make bail and those who could not, so that while in custody they could be required to participate in the "lineup." It was stated that the "lineup" procedures made the defendant an active participant in police investigation. The court's opinion conceded, however, that the police could permit witnesses to view the accused in his cell, or in jailhouse activities. This opinion stressed the fact that in the "lineup" procedure the prisoner was required to stand upon a brightly lighted stage, and to speak and move as instructed for purposes of identification.
[2-4] This conclusion was expressly repudiated by the Court of Appeals for that District in United States v. Evans, 359 F.2d 776 (1966), where defendants appeal their conviction. While being held upon another charge, defendants were placed in a "lineup" and identified as bank robbers. Upon appeal of the conviction, that court held that the process of identification did not deprive them of any constitutional rights. In Rigney v. Hendrick, 355 F.2d 710 (1965), petitioners sought to enjoin officers from placing them in a "lineup" as being a violation of the Civil Rights Act. Finding that there was neither denial of due process, equal protection of the law by reason of discrimination against indigents without bail, nor violation of the privilege against self-incrimination, the court held that identification was a permissible police activity. The Supreme Court denied certiorari. 384 U.S. 975.
Apart from the practical aspects as to whether or not the best interests of an accused are better served when witnesses are required to pick out and identify him from a group of similar individuals, the evidence upon the hearing discloses that the "lineup" planned by the narcotics officers was, in fact, aborted when the defendant, as advised by counsel, refused to proceed in the "lineup" room.
[5-9] Upon the contention that defendant was deprived of the right to counsel by reason of this "lineup," the record discloses that no "lineup" procedures were, in fact, employed after counsel had advised the defendant to refuse to appear therein, but, in fact, counsel's advice was honored. Again, under the facts of this case, we doubt that the claim of deprivation of right to counsel is an issue as a matter of law. Such right to counsel is related to accused's privilege against self-incrimination. As noted in Schmerber v. California, 348 U.S. 757, 16 L Ed2d 908, 86 S Ct 1826, such privilege against self-incrimination does not insulate against fingerprinting, photographing or performing acts incident to identification. The Supreme Court distinguished evidence of the physical characteristics of the defendant from his testimonial privilege against self-incrimination, and held that there was no issue presented with respect to the ability of counsel to assist the defendant in any rights which he did possess, so that the claim of being deprived of the right of counsel must be rejected. Such conclusion is equally applicable here. See also Rigney v. Hendrick, 355 F.2d 710.
Defendant urges that since no chemical analysis of the items purchased was placed in evidence, there was a failure to prove that the preparations obtained were narcotics. It seems more correct to say that the issue is whether or not defendant obtained exempt medicinal preparations described in the Uniform Narcotic Drug Act, chap 38, § 22-12 (Ill Rev Stats, 1965). The courts have recognized the distinction between narcotics as such, and the exempt medicinal preparations. People v. Bowlby, 51 Ill. App.2d 51, 201 N.E.2d 136; People v. Williams, 23 Ill.2d 549, 179 N.E.2d 639; People v. Hines, 30 Ill.2d 152, 195 N.E.2d 712 and Folenius v. Eckle, 109 Ohio App. 152, 164 N.E.2d 458.
The requirements of a chemical analysis in the case of an unidentified substance of unspecified origin without evidence of its nature and content is patent. The record in this case, however, discloses without contradiction, the following: (1) the defendant made the purchases using the trade name of the medicinal preparations; (2) that reputable pharmaceutical companies manufactured and distributed the preparations; (3) that the preparations were sold in the original container distributed by the manufacturer; (4) that the respective preparations have accepted standards or formulas specifying narcotics coming within the statutory concentration; (5) that the statute, chap 38, § 22-21 (Ill Rev Stats, 1965) requires the manufacturer to label each package or container showing the kind, quantity and form of narcotic drug contained in the medicinal preparation; (6) that the containers obtained by the defendant were, in fact, labelled by the manufacturers pursuant to such statutory requirement. The Supreme Court has recognized that reputable pharmaceutical manufacturers have established standards for the manufacture of medicinal preparations. People v. Williams, 23 Ill.2d 549, 179 N.E.2d 639.
In People v. Robinson, 14 Ill.2d 325, 153 N.E.2d 65, the Supreme Court stated that circumstantial evidence may support a conviction under the Uniform Narcotic Drug Act. To prove a violation in that case, it was necessary to identify an unknown substance as a narcotic drug. The three users of heroin testified that the taste of the substance and the reaction induced by it was that of heroin. Similarly, the evidence was that the defendant had sought to purchase heroin. We believe that the chain of circumstantial evidence establishing the violation of the statute is stronger in this case than that in People v. Robinson.
A court must consider the purpose of the statute with regard to the medicinal preparations at issue, and the fact that they are the subject of immediate consumption. To announce the evidential requirement of chemical analysis of each preparation sold as an exempt medicinal preparation would not only render the legislative determinations for naught, but would compound fatuity with the ridiculous. We believe that the circumstantial evidence is sufficient to satisfy the trier of fact of the guilt of the ...