APPEAL from the Circuit Court of Cook County; the Hon. EUGENE
S. WACHOWSKI, Judge, presiding.
MR. JUSTICE UNDERWOOD DELIVERED THE OPINION OF THE COURT:
This is a direct appeal by the defendant, Matthew Mills, from a jury conviction in the circuit court of Cook County for unlawful possession of drugs in violation of section 22-3 of the Criminal Code. (Ill. Rev. Stat. 1965, chap. 38, par. 22-3.) He was sentenced to imprisonment for not less than two nor more than seven years, and he now argues (1) that the prosecutor violated his right against self-incrimination by commenting on his failure to testify, (2) that the indictment did not allege a crime because it failed to charge that Mills "knowingly" possessed narcotics, (3) that his right to confrontation was abridged when a bailiff communicated with the jury, (4) that the court's instructions to the jury were confusing and erroneous, (5) that the use of testimony by an informer paid on a contingent fee basis violated due process of law, and (6) that the evidence failed to prove him guilty beyond a reasonable doubt.
A summary of the facts relevant to the defendant's initial contention is that on February 18, 1965, Nathaniel Clayton, a special employee of the Chicago Police Department, drove with two police officers to a tavern known as the "Corner Club" at the corner of 63rd and Ingleside streets at about 10:30 A.M. Clayton entered the tavern three or four times and each time upon leaving walked directly to report to the officers who waited in an unmarked squad car which was parked near the tavern. On his last entry into the tavern at 2:00 P.M., Clayton observed the defendant who was seated on a stool at one end of the bar. Clayton testified that a man he knew as "Pete" walked up to defendant and engaged him in conversation. During this conversation Clayton stated that he saw defendant place his hand under the plastic covering of the bar stool on which he was sitting and take out a cigarette package which he held in front of him and then replaced under the plastic cover of the stool. After viewing this incident Clayton immediately left the tavern and informed the waiting police officers who thereupon entered the tavern, arrested defendant, and seized the cigarette package from under the plastic cover of his stool. This package contained two small tinfoil packets of heroin.
Three witnesses were called by the defense at the trial during which defendant did not testify. The first defense witness was Clifton White, Nathaniel Clayton's probation officer, who testified that Clayton had failed to report during certain months while he was on probation, thereby impeaching Clayton's testimony that he had always reported. The other two defense witnesses were friends of the defendant who were called to show that defendant had not been in the tavern more than 5 or 8 minutes before his arrest. One of these witnesses, James Davis Bell, testified that he was sitting at the bar when defendant entered and sat on a stool at the bar. Bell stated that he exchanged greetings with the defendant, that the defendant ordered a beer but was arrested before he was served.
In seeking a reversal for improper closing argument by the State, the defendant relies on the self-incrimination clause of the Federal constitution which was held to be violated in Griffin v. California, 380 U.S. 609, 14 L.Ed.2d 106, 85 S.Ct. 1229, by direct prosecutorial comment on a defendant's failure to testify. He also relies on a similar provision of the Illinois constitution (article II, section 10), as well as section 155-1 of the Code of Criminal Procedure which provides in pertinent part that "a defendant in any criminal case or proceeding shall only at his own request be deemed a competent witness, and his neglect to testify shall not create any presumption against him, nor shall the court permit any reference or comment to be made to or upon such neglect."
The prosecutor's argument which the defendant alleges violated his right to be tried free of comment on his failure to testify was as follows: "And I say the only evidence in this case is that this man had this pack in his hand * * * he put that pack under the stool. There is no issue on that, except that Clayton forgot to report to his probation guy four or five times. There is no issue, there is not another bit of evidence from anyone in that bar at that time that it wasn't under there. There is no one who sat on those stools who didn't say, or came in here to say that * * * this man didn't have it in his hand. Of the people who were there the only one who comes before you is Clayton. And he says he had it in his hands. White doesn't say he didn't have it. Mr. Bell doesn't say he didn't have it, or anyone else who you know was in that bar. The only one is Clayton."
An appropriate test in deciding whether such closing argument violated the defendant's right to remain silent under section 155-1 of the Code of Criminal Procedure was set out in Watt v. People, 126 Ill. 9, 32, as whether "the reference [was] intended or calculated to direct the attention of the jury to the defendant's neglect to avail himself of his legal right to testify?" We have held it permissible, however, for a prosecutor to comment on the uncontradicted nature of the State's case even where the only person who could have contradicted the State's evidence was the defendant himself. (People v. Norman, 28 Ill.2d 77, 81, and cases cited therein.) In People v. McMahon, 244 Ill. 45, the defendant did not testify during his trial for the murder of a young girl by poisoning. Although the defendant's conviction was reversed on other grounds, the court noted that the prosecutor had not exceeded the permissible limits in commenting that no one had denied the testimony of a prosecution witness who stated that the defendant told him that if someone squealed on him he would "give him the same dose * * * [he] gave the other little bitch." The witness testified that this statement was made by the defendant in the presence of the witness and the defendant's wife, and the prosecutor commented as follows: "Has it been denied? Has it been disputed? * * * There has been no disputing of it by any man or woman or any individual on the face of the earth. It stands. It is the evidence in this case. You can't get away from it. It has not been denied. It has not been disputed. There isn't anything to the contrary." Referring to the testimony of another witness for the State, the prosecutor said: "Is there a man or woman on earth that ever came in here and contradicted her in the least? No, sir." In stating that such closing argument did not go beyond the pale of allowable comment the court said: "If this were the most serious objection to this record we would not be disposed to reverse for that reason, although we regard the argument of the State's attorney as near the danger line. He had the right to refer to and comment on the testimony of the witnesses for the prosecution and call the jury's attention to the fact, where such was the fact, that their testimony had not been contradicted or disputed, even though plaintiff in error was the only person who was in a position to have disputed such testimony." (244 Ill. at 59; see also People v. Norman; People v. Novak, 370 Ill. 220, 222; People v. Birger, 329 Ill. 352, 368; People v. Donahoe, 279 Ill. 411, 433.) In contrast to this line of decisions are the cases of People v. Wollenberg, 37 Ill.2d 480, and People v. Morgan, 20 Ill.2d 437. In Wollenberg the prosecutor listed the six State witnesses and two defense witnesses and then commented "No one else testified. Let's get that straight", and in Morgan the prosecutor made repeated references to the fact that only one witness testified on behalf of the defendant. In these cases, however, the prosecutorial design appears to have been to point the finger of blame directly at the defendant for his failure to testify when it was within his power to enlighten the jury.
In the instant case Nathaniel Clayton testified that there were approximately eight or nine people in the Corner Club tavern when he entered, and defense witness Bell stated that excluding the bartender there were between ten and twelve people present when the defendant arrived. We find it to be entirely relevant and material in evaluating the defendant's case to point out that he presented only one witness (Bell) who was in the bar when the defendant was alleged to have handled the cigarette package found under his stool. There were estimates of between eight and thirteen people in the bar at the time the defendant was said to have committed the act which provided the basis for imputing knowledge to him of narcotics which were concededly within his dominion and control, and under the circumstances we cannot accept the defense contention that the prosecutor's argument that no one had controverted the State's principal witness constituted a covert reference to the defendant's failure to take the witness stand. See People v. Lawson, 331 Ill. 380, 394, cert. denied 282 U.S. 815, 75 L.Ed. 729, 51 S.Ct. 332.
The indictment returned against Mills for possession of heroin stated that: "* * * on February 18th, 1965, at and within said [Cook] County, Matthew Mills committed the offense of possession of a narcotic drug, in that he unlawfully possessed and had under his control, otherwise than as authorized in the Uniform Narcotic Drug Act of said State of Illinois then in force and effect, a quantity, (the exact quantity of which is unknown to said Grand Jurors), of a certain narcotic drug, to-wit: heroin, in violation of Chapter 38, Section 22-3 of the Illinois Revised Statutes, 1963". The defendant alleges at his second point that this indictment was invalid because it failed to charge him with knowledge of the drug which it alleged he "unlawfully possessed and had under his control." However, this indictment was drafted in substantially the same terms as the statutory section which proscribes the unauthorized possession of narcotics. Our statute, section 22-3 of the Criminal Code, is the Uniform Narcotic Drug Act which declares it to be "unlawful for any person to * * * possess, [or] have under his control * * * any narcotic drug, except as authorized in this Act." In People v. Patrick, 38 Ill.2d 255, we noted that "An indictment which charges an offense in the language of the statute is deemed sufficient when the words of the statute so far particularize the offense that by their use alone an accused is apprised with reasonable certainty of the precise offense with which he or she is charged." (38 Ill.2d at 258.) We believe that the indictment against Mills meets this test regardless of the absence of an express allegation that he had knowledge of the drugs found within his dominion and control.
It is undisputed that knowledge is an essential element in the chain of proof of the crime of possession of narcotics. (People v. Mack, 12 Ill.2d 151.) However, three sister jurisdictions have held that under the Uniform Narcotic Drug Act an information or indictment which is couched in the language of the statute is sufficient although lacking an averment that the accused had knowledge of the drugs in his possession. (State v. Peltier, 229 La. 745, 86 So.2d 693; State v. Williams, 230 La. 1059, 89 So.2d 898; State v. Scarborough (Fla. App.), 170 So.2d 458; Robinson v. State, 163 Tex.Crim. 499, 293 S.W.2d 781.) In Peltier the court noted that "Defense counsel has cited no authority, and we know of none, which requires that the existence of general criminal intent or guilty knowledge be alleged in the indictment or information." (86 So.2d at 697.) In Scarborough, where the defendant was charged with fraudulently obtaining a narcotic prescription in violation of the Uniform Act, the court said "Knowledge or scienter is implicit in the language of the statute and thus it does not have to be alleged separately." (170 So.2d at 460.) The Peltier decision was rendered by the Louisiana Supreme Court more than a year before the July, 1957, adoption of the Uniform Narcotic Drug Act in Illinois, and the judicial construction of that Act by the Louisiana court is persuasive authority under the general principle that the judicial construction previously placed upon an adopted statute is treated as incorporated therein. (Cook v. Dove, 32 Ill.2d 109, 113; People v. Beckers, 413 Ill. 102.) Moreover, Peltier, Scarborough and Robinson provide authoritative guides for determining the question of first impression here raised under the Uniform Act since "courts will refer to decisions of other states and will construe the [uniform] statute in accordance with the construction given the [uniform] statute in other jurisdictions." 2 Sutherland on Statutory Construction, sec. 5211, and cases cited therein.
We have no doubt that the indictment defendant attacks here was sufficiently clear to enable him to prepare a defense to this action (People v. Patrick, 38 Ill.2d 255; People v. Blanchett, 33 Ill.2d 527; People v. Duden, 3 Ill.2d 16), and to plead a conviction resulting from such prosecution as a bar to any future criminal proceeding based upon the same conduct. In charging Mills with the "offense of possession of a narcotic drug" which he "unlawfully possessed and had under his control" the indictment twice uses a form of the technical term "possession" which is defined in section 4-2 of the Criminal Code to incorporate knowledge: "Possession is a voluntary act if the offender knowingly procured or received the thing possessed, or was aware of his control thereof for a sufficient time to have been able to terminate his possession." (Emphasis added.) It is the law in this State that "Where a word is so used in one portion of a statute as to have a clearly defined meaning, the same word when used in another portion of the same statute will be given the same meaning * * *." (People v. Talbot, 322 Ill. 416, 422.) Accordingly we find that the defendant must be held chargeable with notice that the term "possession" used in the indictment implicitly meant knowing possession, and therefore we hold that the indictment returned against Mills was valid although it did not expressly allege that he had knowledge of the narcotics found within his control.
The third point raised by the defendant is that he was denied the right to confrontation when the bailiff communicated with a juror after the jury had retired for deliberation. After the guilty verdict was returned, the defendant's attorney presented an affidavit to the trial court in which he described the bailiff-juror communication to which he was a witness, and he argued the incident as a ground for granting a new trial. In his affidavit defense counsel states that after the jury had adjourned to the jury room he heard a buzzer ring, and he went to the anteroom adjacent to the courtroom where he observed the bailiff enter a door leading to the jury room and ask the jury what they wanted. Defense counsel's affidavit continues that he heard someone from within the jury room say either "We want further instructions" or "We want to ask a question." The bailiff's response which defense counsel claims he heard was either "You are not entitled to more instructions" or "You can't ask any questions." Another affidavit was submitted relative to this matter by Mary E. Faulkner, who is identified in the State's brief as the fiancee of the defendant, and she stated that she saw the bailiff emerge from a room adjacent to the courtroom after a minute or two and heard him say "They didn't want anything, they just wanted to ask a question but I told them I couldn't answer no question." During the argument on defendant's motion for a new trial the bailiff testified that when he answered the jury buzzer, he opened the outer door to the jury room and asked the jury if they had reached a verdict. The bailiff testified that one of the jurors responded "I would like to ask you a few questions." The bailiff stated that his reply to this request was "I am only the bailiff. I cannot answer any questions, and there is nothing I can do for you. I can't talk to you." In denying the motion the trial judge commented that at the time this communication took place it was necessary for him to be absent from the courthouse, but that he had instructed the attorneys that there were two other judges in the building who would be available if a judge was necessary. The court stated that even if the matters occurred in the worst light indicated in the affidavits "[I]t was incumbent upon counsel to ask that one of these judges, who it was made known to him were present in the building, be summoned for that purpose, for the jury to propound whatever question they had to him at that time. But this affidavit shows that no such request was made."
We believe the facts fairly support the conclusion that a juror inquired whether he could ask the bailiff a few questions and that no request for further jury instructions was made. Under these circumstances it is clear that the bailiff's statement that he was unable to answer such questions was proper, and defense counsel may not now be heard to complain about this procedure since he failed to avail himself of the opportunity of having one of the two available judges summoned to inquire into the matter.
Two cases principally relied upon by the defendant (Foreman v. State (Okla. Cr.), 370 P.2d 34, Oien v. Bourassa, 221 Ore. 359, 351 P.2d 703) have statutory bases peculiar to those States. In our State the rule has judicially evolved that a jury verdict will not be set aside where it is apparent that no injury or prejudice resulted from a communication to the jury either by the court or by third persons outside the presence of the defendant. (People v. Berry, 18 Ill.2d 453, 459; People v. Tilley, 411 Ill. 473, 478; People v. Brothers, 347 Ill. 530, 548; Emme v. Pennsylvania Railroad Co., 29 Ill. App.2d 97.) The recent Supreme Court decision of Parker v. Gladden, 385 U.S. 363, 17 L.Ed.2d 420, 87 S.Ct. 468, does not in any way diminish the need for showing that the rights of a defendant were prejudiced by the acts of the bailiff. There, one of the jurors testified that she was prejudiced by the bailiff's remarks which were on one occasion "Oh, that wicked fellow [defendant], he is guilty", and on another "If there is anything wrong [in finding the defendant guilty] the Supreme Court will correct it." In holding that the bailiff's statements constituted reversible error the United States Supreme Court said: "[w]e believe that the unauthorized conduct of the bailiff `involves such a probability that prejudice will result that it is deemed inherently lacking in due process.' Estes v. State of Texas, 381 U.S. 532, 542-543, 85 S.Ct. 1628, 1633, 14 L.Ed.2d 543 (1965). As we said in Turner v. State of Louisiana, supra, `it would be blinking reality not to recognize the extreme prejudice inherent' in such statements that reached at least three members of the jury and one alternate member. 379 U.S., at 473, 85 S.Ct., at 550." (385 U.S. at 365, 17 L.Ed.2d 423, 87 S.Ct., at 471.) We cannot accept the defendant's argument that we should reverse his conviction on the basis of ...