Appeal from the Circuit Court of Cook County; the Hon. EDWARD
E. PLUSDRAK, Judge, presiding. Affirmed.
MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT.
Rehearing denied and supplemental opinion May 15, 1969.
The defendant appeals from a conviction for the unlawful possession of a narcotic drug. He was charged in separate indictments with the illegal sale of a narcotic drug and with the illegal possession of a narcotic drug. The two indictments were consolidated before trial over the defendant's objection, and the jury found the defendant guilty of illegal possession but could not agree upon the illegal sale, whereupon the trial court declared a mistrial relative to the illegal sale charge. The indictment charging illegal sale was subsequently nolle prossed by the State. The defendant was sentenced to the Illinois State Penitentiary for a term of not less than nine nor more than ten years.
The defendant contends: 1) that evidence obtained through the use of a police informer was improperly admitted; 2) that the informer's identity should have been disclosed at the hearings on motions to suppress evidence; 3) that the consolidation of the two indictments on the day of trial deprived him of adequate time to properly prepare his defense; 4) that the State's demonstration before the jury was improper and prejudicial; and 5) that the joinder of the two offenses of illegal sale and of illegal possession was improper and prejudicial.
Two separate motions to suppress were made under each indictment. On December 7, 1964, a motion to suppress was heard on indictment No. 64-2540 wherein the defendant was charged with unlawful possession of a narcotic drug. Officer Ronald Kelly testified to the circumstances surrounding the arrest and admitted that a "special police employee" had been used to make a controlled purchase of narcotics. Defense counsel attempted to elicit the true name of the informer, but the State's objection to such a disclosure was sustained. On March 8, 1965, another hearing on a motion to suppress was heard relative to the indictment No. 64-2539 wherein the defendant was charged with the unlawful sale of narcotics to one "Joseph Leak." At this hearing the only witness was Officer James Maher, one of the three arresting officers, who also testified to the circumstances leading to the arrest of Griffin Carter. Again the court would not permit the informer's identity to be disclosed. Both motions to suppress were denied, and, upon consolidation, the case went to trial on March 8, 1965.
At trial, the three arresting police officers testified to basically the same narrative. On July 2, 1964, Joseph Leak came to the police station and informed them that he could make a controlled purchase of narcotics from a man known as Griff who resided at 1730 West Hastings in Chicago. The informer was searched, given $20 in recorded and dusted currency, and was then taken to the area of Ashland Avenue and Hastings Street where the police observed Leak meet the defendant and further observed the informant hand something to the defendant. The defendant then walked east on Hastings to a tavern. After about five minutes he left the tavern, walked back to where Leak was waiting and handed something to Leak. Joseph Leak then walked a distance of about one-half of a block to the place where the police were making their surveillance and handed three packets of white powder to the police. The packets were field tested and were found to contain heroin. The police drove to 1730 West Hastings, and, as they arrived, the defendant came out of the building. He was arrested and the officers discovered a tinfoil package in his hand which was tested and found to contain heroin. The defendant's hands were checked with the fluorescent light and were found to be stained from the dustings of the marked currency. A dollar bill was also found on the person of Griffin Carter which was one of the recorded and dusted bills given Leak by the police. The defendant told the police that he had purchased narcotics from one Willie Mae Foster, but a search for this woman proved unsuccessful.
It was disclosed at trial that the true identity of the informer was one named Joseph Leak. Leak did not testify at trial.
The State presented the jury with a demonstration of how fluorescent powdered money leaves the powder on the hands of the transferee and of how the powder is detected by means of an iridescent light.
Ella Mae Pope, the defendant's sister, testified on behalf of the defense that she was on the front porch at 1730 West Hastings when the police arrested her brother and that she did not see the police take any object from her brother. According to her, the defendant could not have made the alleged sale to Leak on the street at the time the police testified that such sale was made.
The defendant testified on his own behalf and denied any sale or possession of narcotics on the date in question. He denied being a narcotics addict at the time of his arrest although he admitted to addiction in the past. He stated that he knew Joseph Leak "pretty well" since they had attended school together. The accused also stated that when he was brought to the station he was told that Joe Leak was the man who had informed on him.
The defendant initially argues that the prosecution's evidence obtained through the use of this informer should have been ruled inadmissible at the pretrial hearings and at trial. The defendant bases this argument on the language of Ill Rev Stats 1963, c 38, § 608(a) which reads:
"No State, county or municipal officer, whose duty it is to investigate the commission of any crime or to prosecute persons accused of crime, shall employ any detective or investigator on a compensation basis other than that of time, and in no event shall compensation to such persons be contingent on the success of the investigation or prosecution. Evidence obtained in violation of this act shall be inadmissible in any court in this State for any purpose and any person employed in violation of this act shall be incompetent to testify in any such court as to any information or evidence acquired by him in such employment."
The defendant reasons that the informer was compensated as a "special police employee" and therefore the admission of any and all evidence obtained by the use of this informer was violative of section 608(a). It should be emphasized that there is no testimony in the record that Joseph Leak was in fact paid for his services, even though there was testimony that the usual practice was to compensate such informers in narcotics cases. In any event, a similar argument was advanced in People v. Jones, 75 Ill. App.2d 332, 221 N.E.2d 29, and the argument was rejected as the court stated at page 340: "We see no merit in this contention, for an informer cannot be classed as a `detective or investigator' within the contemplation of this statute."
In addition to relying upon the Illinois statute, the defendant asserts that the use of the informer on a contingent fee basis is fundamentally unfair and violative of the due process clause of the Fourteenth Amendment since it thereby encourages an informer to produce a "frame-up" merely to earn his fee. Again it must be mentioned that there is no evidence that an actual fee, contingent or otherwise, was paid to Leak. Furthermore, the cases relied upon by the defendant ...