Appeal from the Circuit Court of Cook County, Criminal
Division; the Hon. EDWARD F. HEALY, Judge, presiding. Reversed
MR. JUSTICE MCCORMICK DELIVERED THE OPINION OF THE COURT.
Rehearing denied June 8, 1967.
CHARGE: Unlawful sale of narcotics. *fn1
DEFENSE AT TRIAL: Defendant denied that he committed the alleged offense.
JUDGMENT: After a jury trial the defendant was found guilty and was sentenced to the penitentiary for a term not less than 15 nor more than 20 years.
1) The trial court erred in admitting evidence of defendant's silence upon arrest when being questioned by police;
2) The trial court committed error in admitting into evidence prejudicial out-of-court statements of a co-defendant (subsequently severed) made to a police officer out of the presence and hearing of defendant and without his consent;
3) The trial court improperly admitted evidence of the sale of narcotics separate and distinct from the crime charged in the indictment;
4) The Assistant State's Attorney prejudiced the defendant by his argument.
EVIDENCE: The evidence in the record is to the effect that on October 4, 1964, at about 7:30 p.m., Officer Richard McKelvey of the Chicago Police Department, received a telephone call from Richard Frisch, a police informer, who also used the name of Robard Davis. Officer McKelvey, with two other police officers, drove in an unmarked squad car to the vicinity of Wells and Division Streets, in Chicago, where Frisch got into the car; they then drove to Elm Street and parked across from the building at 215 West Elm. Frisch was searched and no narcotics or money were found on him. He was given prerecorded money for which he signed in the name of Robard Davis; he then went to the basement apartment at 215 West Elm, where he stayed about 15 minutes, then returned to the car. Frisch and the officers later testified that at that time he gave the officers two packets containing a white powder; that Officer Kurowski field tested it and determined that the powder was "positive."
The officers then went to the apartment at 215 West Elm and placed under arrest three persons found there Bernadine Partee, Frank Wilson, and Edward Brown, the defendant. The apartment was searched and one packet of narcotics was found on the person of Bernadine Partee, who acknowledged ownership of the packet. The three persons arrested were then taken to the police station where Bernadine Partee and Edward Brown were charged with the unlawful sale of narcotics, and a disorderly conduct charge was placed against Wilson. At police headquarters the prerecorded money was found on the person of Partee. The two packets which Frisch had given the officers were subsequently tested by police chemists who testified that they contained heroin.
On the day of the trial Bernadine Partee was granted severance. She testified for the State as follows: On October 4, 1964, she heard a knock on the window of her apartment, looked out and saw Frisch. Edward Brown was in her apartment and she told him that Frisch was outside; he told her to let him in. Frisch said he wanted to get two "bags" of narcotics, and she got them from Brown, took the money ($20) from Frisch and gave him the bags which Brown had taken from a little medicine bottle. When they arrived at the police station later, she had put the money in her shoe.
Over the objection of the defendant, Officer Kurowski was allowed to testify to a conversation between himself and Partee at the police station, outside the presence of Brown, at which time Partee told the officer that the one foil package of narcotics she had was hers; that the other two ...