APPEAL from the Appellate Court for the First District; heard
in that court on appeal from the Circuit Court of Cook County;
the Hon. NATHAN M. COHEN, Judge, presiding.
MR. JUSTICE UNDERWOOD DELIVERED THE OPINION OF THE COURT:
Rehearing denied November 21, 1968.
Defendant Frank Washington was found guilty of unlawful possession of narcotic drugs by a jury in the circuit court of Cook County and sentenced to a term of five to ten years imprisonment. The appellate court unanimously affirmed the defendant's conviction (81 Ill. App.2d 90), and adhered to its original decision after granting a rehearing. (81 Ill. App.2d 103.) We granted leave to appeal to consider defendant's contentions (1) that his constitutional rights were violated when, on the day set for trial, the judge denied defendant's request for time to obtain different counsel; (2) that the representation provided by his retained counsel amounted to a violation of defendant's constitutional right to counsel because the attorney failed to move to quash a search warrant and suppress the evidence seized thereunder; and (3) that the evidence presented against him failed to establish the identity of the packages introduced in evidence as containing narcotic drugs as the same packages seized by police from the defendant and in the apartment in which he was arrested.
On May 14, 1964, Thomas Henry signed a complaint for the issuance of a search warrant to search the person of Mary Canaday and the premises of her apartment at 6945 South Cornell in Chicago. The complaint set forth that on the preceding day the complainant had seen a large quantity of narcotics and narcotics paraphernalia in the possession of Mary Canaday from whom complainant purchased a package containing narcotic drugs. The relevant portion of the search warrant which was issued pursuant to Henry's complaint reads as follows:
"ON THIS DAY Thomas Henry, COMPLAINANT, HAS SUBSCRIBED and sworn to a complaint for search warrant before me. Upon examination of the complaint I find that it states facts sufficient to show probable cause and I therefore command that the person of Mary Canaday, female/negro and 6945 South Cornell, apartment building, Apt. No. 1-3, Chicago, be searched and the following instrument, articles and things which have been used in the commission of, or which constitute evidence of, the offense of Possession of Narcotics be seized therefrom: a female/negro known as Mary Canaday."
On May 14, three Chicago police officers entered Mary Canaday's apartment at 6945 South Cornell with the above-quoted search warrant. Defendant Washington opened the apartment door and was given a copy of the search warrant. The defendant and Mary Canaday were arrested, and in a search of the defendant the officers discovered one package containing a white powder which they identified in a field test as heroin, and another package containing a green crushed plant which the officers believed to be marijuana. A third tinfoil package containing a white powder was found in a kitchen drawer in the apartment and a field test of its contents also yielded a positive result for the presence of heroin. The arresting officers testified that during their search of the apartment the defendant stated that everything found in the apartment was his.
On May 15, 1964, the seized substances were examined by a police chemist who identified the three packages in open court as those whose contents he had previously tested and found to contain heroin and marijuana.
Following the defendant's arrest on May 14, 1964, he was indicted on July 31, 1964, and arraigned on August 10, 1964. His privately retained counsel filed his appearance at the defendant's arraignment, and trial was set for September 9, 1964. On October 6, 1964, an order was entered causing the defendant's bond to be forfeited and a warrant was issued for his arrest. On December 17, 1964, both the prosecutor and defense counsel stated that they were ready to proceed to trial, but the defendant engaged in the following colloquy with the court:
"THE DEFENDANT: Your Honor?
THE DEFENDANT: Could I have time to change counsels, Your Honor?
THE COURT: No, it's too late.
THE DEFENDANT: I'm not satisfied with counsel.
THE COURT: Not at this stage of the proceedings. ...