Appeal from the Circuit Court of Cook County, Criminal
Division; the Hon. HERBERT R. FRIEDLUND, Judge, presiding.
Reversed and remanded.
MR. JUSTICE MCCORMICK DELIVERED THE OPINION OF THE COURT.
Rehearing denied July 12, 1967.
CHARGE: Possession of narcotic drugs. *fn1
JUDGMENT: A jury found the defendant guilty of the illegal possession of narcotics, and the court entered judgment sentencing the defendant five to ten years in the Illinois Penitentiary.
1) Defendant was denied due process of law when the trial judge refused to hear a petition for substitution of judge and refused to conduct a hearing on the motion.
2) It was reversible error for the trial court to permit two police officers to testify before the jury and give the substance of a conversation they said they had with a special police informer outside the presence of the defendant, in which conversation the informer allegedly told the officers the defendant was selling narcotics.
3) In the argument to the jury the Assistant State's Attorney made an inflammatory and prejudicial argument.
EVIDENCE ON BEHALF OF THE STATE: According to the testimony for the State, on July 9, 1964, at about 1:00 p.m., two Chicago police officers, Ernest B. Jamison and Henry Pates, talked to a man who they said was a "special police informer." The officers testified that the informer told them a man named Travis Trotter was selling narcotics at the corner of 44th and State Streets, and had narcotics on his person at the time. The informer gave them a description of Trotter, and the two officers went to the area where they found Trotter who fitted the description given them.
Officer Jamison testified that he observed that Trotter had a newspaper in his hand; that he saw him shake the newspaper and a package of L & M cigarettes fall from the paper to the ground; that he picked up the package and found six tinfoil packs inside which contained a white powder.
Officer Pates testified that he saw the defendant come out of a tavern, at which time he and Officer Jamison stopped him; that he saw Officer Jamison pick up a cigarette package from the ground, open it and dump the contents into his hand, then place the contents in his pocket. Officer Pates stated that he examined the package and saw six tinfoil packets inside. On cross-examination he testified that he did not see the package thrown, and that there were three or four people at the corner when they saw Trotter. There was necessary proof that the tinfoil packets contained narcotics.
EVIDENCE ON BEHALF OF THE DEFENDANT: The defendant, Travis Trotter, testified in his own behalf that on July 9, 1964, he was standing with ten or eleven other people on the corner of 44th and State Streets when a car drove up; that two of the people standing there started to run, and Officer Jamison and another officer got out of the car and chased them. When Officer Jamison returned he ordered the group to line up against the wall. Trotter testified that he was ordered by a policeman "they called Officer King" to get in the car, which he did. He said that Officer King began to search the gutter and found a cigarette package which he said belonged to the defendant, and that when Officer Pates came back to the car with two hypodermic needles and syringes, the defendant was arrested for possession of narcotics, which he denied. The defendant testified that the police officers were Negroes.
Officer Pates was recalled and testified that Officer King was not present at the time in question; that Officer King is white; and that no hypodermic needles or syringes were found on anyone at the time of defendant's arrest.
OPINION: In this opinion we will discuss only two points raised by the defendant in the appeal: that he was not given a fair trial because of the testimony of Officers Jamison and Pates that they had conversation with a special police informer outside the presence of the defendant, which informer told them the defendant was selling narcotics at the area ...