Appeal from the Circuit Court of Cook County; the Hon. EDWARD
J. EGAN, Judge, presiding. Judgment reversed.
MR. PRESIDING JUSTICE ADESKO DELIVERED THE OPINION OF THE COURT.
The defendant, Lawrence Reddick, was convicted in a bench trial for the sale of a narcotic drug in violation of chapter 38, section 22-3 of the Ill Rev Stats, and was sentenced to serve a term of not less than ten or more than ten years and one day in the Illinois State Penitentiary. The case was appealed directly to the Illinois Supreme Court and subsequently on March 11, 1968, was transferred to this court. The defendant urges that the judgment be reversed on the grounds that the inconsistency in the statements of a police officer raises a reasonable doubt as to the defendant's guilt, and that proof of defendant's guilt was not established beyond a reasonable doubt.
From the record it appears that on the evening of November 4, 1965, one Stephen Cox, a police informer, met with Officer James Arnold and another officer from the Narcotics Unit of the Chicago Police Department. After Cox was searched to determine he did not possess any narcotics or money, he was given a sum of marked money for the purpose of making a controlled purchase of narcotic drugs and also signed a receipt for such money. Cox then proceeded with the officers to the vicinity of the Burgundy Lounge at 6309 South Drexel Blvd., Chicago, Illinois. The police officers parked their unmarked car at 6338 South Drexel Blvd., about one-fourth block away from the Burgundy Lounge. Cox got out of the car on the east side of Drexel Blvd., and proceeded to the lounge while Officer Arnold stood in a doorway on the west side of Drexel. Cox testified the defendant and several other men were just coming out of the lounge as he (Cox) came up to the lounge entrance. After the defendant finished talking with these men, Cox stated that he and the defendant negotiated a sale of narcotics and that Cox gave defendant the marked money. According to Cox, defendant then went in the alley while Cox waited in front of the lounge with the other men. Reddick returned and gave Cox a tinfoil package, whereupon Cox left, returned to the police car and gave the package to the officers. On cross-examination, Cox swore that at no time did he walk into the tavern and further, that after taking the tinfoil package to the officers, he and the officers went to the front window of the lounge and he pointed defendant out to the officers. Cox also admitted he had met defendant for the first time about one week prior to the alleged sale while he was with a friend, but did not know the defendant personally.
Officer Arnold testified that he saw Cox on November 4, 1965, at which time he gave him ten dollars in prerecorded money after searching him for narcotics and/or other money. Cox left the unmarked police car and went to the Burgundy Lounge, where the door opened and Cox either stepped in or stepped out. Arnold stated:
"I don't know whether he got all the way in the tavern or not, but within a matter of a second or two Mr. Cox and a couple of other fellows and the defendant was on the sidewalk."
Arnold continued to testify that all the men were talking but he could not see what was transpiring, as he was about a quarter of a block away from the group. The defendant, so stated Arnold, went into the tavern entranceway, then came out through the package goods entranceway and went into the alley. About ten minutes later, defendant emerged from the alley and rejoined the group in front of the lounge. The defendant, Cox, and the others "huddled" together and then dispersed. Cox returned to the police vehicle and gave Arnold a tinfoil package containing a white powder substance. Arnold stated that Cox and the others were never out of his sight. Officer Arnold, his partner and Cox walked to the Burgundy Lounge where Cox looked in the window and identified defendant as the man who sold him the tinfoil package, and who was the same person Arnold observed going in the tavern, coming out of the package goods store door and entering and returning from the alley. Arnold entered the lounge and arrested defendant, who was in the company of a female companion. On the woman's person was found two one-dollar bills of the prerecorded money. Two other one-dollar bills and a five-dollar bill were recovered from the cash register of the package goods store. (The package goods store was connected to the lounge by a passageway.) On cross-examination Arnold testified that defendant denied making any sale of narcotics and further, that no narcotics or prerecorded money was found on defendant's person. Mr. Voss, the operator of the package goods store, told Arnold he could not determine who gave him the other two prerecorded one-dollar and five-dollar bills. Arnold also was sure that the testimony he gave at the preliminary hearing was similar to his police report, and that he never saw the defendant before the day in question.
It is upon the testimony of Officer Arnold as to what he observed while awaiting the return of Mr. Cox that constitutes the basis of this appeal. At a preliminary hearing conducted on January 27, 1966, Arnold testified that he gave Cox the marked money, whereupon Cox proceeded to the Burgundy Lounge, stayed for about ten minutes, (emphasis added) consummated a controlled purchase of narcotics and returned to the squad car with a tinfoil package containing heroin. Arnold was emphatic that Cox actually went in the lounge and remained there for approximately ten minutes. Relevant portions of Arnold's testimony at the preliminary hearing were as follows:
"Q. (By Assistant State's Attorney) What did he say to you, what did you say to him:
"A. (By Officer Arnold) Officer Williams and I met a police informer who stated that there was one of several people in the vicinty of 63rd and Drexel that he could find in the Burgundy Lounge located at 6309, and he would attempt to make a control purchase of narcotics from these people in question. We searched the informant, found him to be free of all money and narcotics. We gave him $10.00 in prerecorded funds; he signed a receipt for same. He got out of the car, walked to the Burgundy Lounge. He walked on the, walked down the east side of Drexel. I stood in the doorway on the west side of Drexel. He went in the Burgundy Lounge, stayed for approximately ten minutes. He walked back out, walked back to the squad car, joined Officer Williams and I and handed me one tin foil package and said." (Emphasis added.)
"Q. (By Mr. Adam) All right. Now, you are telling the court that he told you he can make a sale, is that correct?
"A. (By Officer Arnold) That ...