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People v. Abbott

JUNE 6, 1969.




Appeal from the Circuit Court of Cook County; the Hon. RICHARD J. FITZGERALD, Judge, presiding. Affirmed. MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.

On a 3-count indictment defendant was convicted by a jury of three offenses of the unlawful sale of a narcotic drug. On each count he was sentenced to the penitentiary for a term of 15 to 30 years, sentences to run concurrently. On appeal defendant asserts error as follows: (1) improper restriction of cross-examination of the informer as to his correct name and address; (2) entrapment; (3) improper instruction of jury; and (4) trial errors.

The record shows that Inspector Donald Norton, a member of the Illinois Division of Narcotics, posing as an addict named "Danny," and through the use of an informer, Harry Schwartz, made contact with defendant, from whom Norton made three narcotics purchases, March 11, 1966, March 12, 1966, and March 15, 1966. On April 5, 1966, Norton arrested defendant.

During the trial Norton testified that on the three occasions the narcotics were handed directly to him, and that Schwartz was present only at the first purchase. Norton knew the informer only as Harry Schwartz, although he had heard the informer referred to as Stacey. At the trial it was stipulated that the contents of the three packets delivered to Norton by the defendant was heroin.

The informer, Harry Schwartz, testified as a witness for the State. He was a narcotics addict and had known the defendant, a former addict, for about six years. After some negotiations by Schwartz with defendant, Schwartz and Norton met defendant at 1160 North Sedgwick shortly after midnight on March 11, 1966. Schwartz introduced Norton to defendant as a "good friend." Schwartz then told defendant he had "$50 to spend" and asked if defendant could get them a "half" (a half-spoon of heroin). They all then drove to 63rd and Bishop, where Norton gave defendant $50 in prerecorded bills. Approximately forty-five minutes later defendant returned with an aluminum foil packet and gave it to Norton. Defendant was driven to his home and, before separating, the defendant gave a telephone number to Norton where he could be reached if additional narcotics were needed.

The next day, March 12, Norton telephoned defendant and asked him if he could "cop a half." Later defendant and Norton drove to the same general area in which they had met on the previous night. Upon arrival Norton handed $60 to the defendant, who left the car and later returned and handed Norton an aluminum foil packet. At that time defendant gave Norton a second telephone number where he could be reached.

On March 15, 1966, Norton phoned the defendant and asked if he could make a purchase of narcotics ["cop a half"]. Later Norton and defendant drove to 1160 North Sedgwick, where Norton gave $50 to defendant, who left and returned an hour later and handed Norton an aluminum foil packet.

Defendant testified that he had known Schwartz for about six years and by the name of Stacey. They had met two or three times in the week prior to March 11, and Schwartz begged defendant to buy some narcotics for him. He was unable to resist Schwartz's entreaties, and on March 10 Schwartz appeared to be quite ill because he was unable to secure narcotics from his usual source of supply. It was Schwartz's poor condition, coupled with defendant's knowledge of what he was going through, that caused the defendant to agree to buy narcotics for him. Defendant testified he gave all the money he received from Norton and Schwartz to the person from whom he purchased the drugs. On March 12 and 15, defendant received phone calls from "Danny," telling him that Schwartz was very ill and needed more narcotics, and because of this he made the second and third purchases of narcotics for Schwartz. He said, "I did not make any money off this deal. I did not use any of the drugs," and he "would not have gotten those drugs . . . if Stacey hadn't begged me for them."

Considered first is defendant's contention that it was reversible error for the trial court, during the cross-examination of Schwartz, to prevent the disclosure to the jury of the informer's real name and address. The cross-examination of Schwartz was quite extensive. His testimony showed he had been convicted of armed robbery and had spent three years in the penitentiary. He was a current user of narcotic drugs and had been "on narcotic drugs since '51." Norton had paid him "forty or fifty dollars" on another occasion. He became a police informant to keep out of jail.

During the cross-examination of Schwartz defense counsel asked for the true name and residence of Schwartz, and the court sustained the objections of the State to such questions. In a conference between court and counsel outside of the presence of the jury, in which the objections of the State were examined and sustained, the remarks of the court included: "I think that the question of his address is not material and would only subject the witness to a possible disclosure as to his whereabouts, and for informing and testifying in this case, his life definitely would be in jeopardy and it is because of the fact his life would be in jeopardy in disclosing his address, the Court would refuse to permit the information to be divulged at this time."

Defendant's authorities on this contention include Smith v. Illinois, 390 U.S. 129, where, on cross-examination of the principal prosecution witness at petitioner's state trial for illegal sale of narcotics, the trial court sustained the prosecutor's objections to disclosure of witness's correct name and his address. It was there held that the petitioner was denied his Sixth Amendment right, made applicable to the States by the Fourteenth Amendment, to confront the witnesses against him. The conviction was reversed. The remarks of the court included (p 130):

"[O]nly this witness and the petitioner testified to the crucial events inside the restaurant, and the petitioner's version of those events was entirely different. The only real question at the trial, therefore, was the relative credibility of the petitioner and this prosecution witness. . . . [p 131] In the present case there was not, to be sure, a complete denial of all right of cross-examination. But the petitioner was denied the right to ask the principal prosecution witness either his name or where he lived, although the witness admitted that the name he had first given was false. Yet when the credibility of a witness is an issue, the very starting point in `exposing falsehood and bringing out the truth' through cross-examination must necessarily be to ask the witness who he is and where he lives. The witness' name and address open countless avenues of in-court examination and out-of-court investigation. To forbid this most rudimentary inquiry at the threshold is effectively to emasculate the right of cross-examination itself."

In Smith v. Illinois, the opinion quotes the principles set forth in Alford v. United States, 282 U.S. 687, 694, and includes (pp 132-33):

"The extent of cross-examination with respect to an appropriate subject of inquiry is within the sound discretion of the trial court. It may exercise a reasonable judgment in determining when the subject is exhausted. . . . But no obligation is imposed on the court, such as that suggested below, to protect a witness from being discredited on cross-examination, short of an attempted invasion of his constitutional protection from self incrimination, properly invoked. There is a duty to ...

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