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People v. Carr

SEPTEMBER 11, 1969.

PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

ROBERT S. CARR, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. NATHAN M. COHEN, Judge, presiding. Judgment affirmed.

MR. JUSTICE SCHWARTZ DELIVERED THE OPINION OF THE COURT.

Rehearing denied October 23, 1969.

Defendant was charged in separate indictments with unlawful possession and sale of a narcotic drug. The court found on a preliminary hearing that certain evidence had been obtained as a result of an illegal search of defendant's apartment. That evidence was suppressed and the State later nolle prossed the indictment for possession. The case proceeded to trial by jury on the charge of illegal sale of a narcotic drug. Defendant was found guilty and sentenced to serve from ten to twenty-five years in the state penitentiary. He contends on appeal that improper argument by the prosecutor deprived him of a fair trial and that the court erred in permitting the State to show that he used an assumed name. As he does not contest the sufficiency of the evidence, only a short statement of the facts is necessary.

On September 26, 1964, Ben Coldwall, a police informant, told Sergeant Robert Gats of the Chicago Police Department that he could make a purchase of morphine. Coldwall was searched, given four ten dollar bills whose serial numbers had been recorded and was driven to 114 North Parkside Avenue, Chicago, by Sergeant Gats and Detective William Nolan. At that address Coldwall went up to the defendant and a companion named Don Zork and the three entered apartment No. 103. Sergeant Gats walked along the north side of the building until he came to an illuminated window through which he was able to observe Coldwall, Zork, the defendant and a female companion in apartment No. 103. Coldwall gave defendant the four ten dollar bills for a cellophane package containing six white pills about half the size of a sugar cube. Coldwall left the apartment and was met by Sergeant Gats at the front door of the building. They returned to the apartment and after gaining admission Gats identified himself and arrested the defendant.

Detective Nolan entered apartment No. 103 shortly after defendant's arrest and was given the money and the cellophane package containing the six white pills. Upon his return to the police station he inventoried the evidence and sent the cellophane bag and its contents to the Police Crime Laboratory. He testified that the pills were very soft and brittle and that some of them had been crushed in handling. Sergeant Charles Vondrak, a police chemist, testified that chemical tests revealed that the six pills were morphine sulphate. He also stated that the contents of the bag appeared to be crushed tablets in a semipowdered form.

After defendant was arrested Sergeant Gats searched him and took his apartment keys. He used the keys to enter the apartment, which he searched and where he confiscated a quantity of drugs. The trial court found that to be an illegal search and seizure and suppressed evidence with respect to drugs obtained from the apartment.

Defendant denied selling the narcotics to Coldwall or receiving any money from him. He stated that he had been sitting with Zork's girl friend while Coldwall stayed with Zork and was unaware of any sale of narcotics. Defendant also testified that he had returned to his apartment at 149 North LeClaire Avenue to get some money for pizza.

Defendant complains of six instances of improper argument on the part of the prosecutor. The first involves a misstatement of the evidence. Defense counsel had argued that there was a discrepancy between the white powdered substance offered in evidence and the six white pills half the size of sugar cubes described in the testimony. The prosecutor in closing argument for the State answered as follows:

"What is this talk about the six cubes of sugar? Where did that get in the evidence? From the lips of Carr. `Ben told me he was an informer. It really shook me.' And the next thing he mentioned was that the policeman showed him six cubes of sugar and said that he found that —

"MR. ROSENFIELD [Defense counsel]: That's not the evidence. I'm going to object to it. Coldwall said it was half the size of a cube of sugar.

"THE COURT: The jury heard the evidence. They will decide the facts."

In point of fact the defendant did not testify as to the size of the pills. It was the informant Coldwall who described them and who testified that they were half the size of sugar cubes.

Defendant argues that there was a "discrepancy between the small amount of powder offered in evidence, and the six cubes, half the size of cubes of sugar, described in the testimony," and that the prosecutor's misstatement as to the size of the cubes deprived him of a fair trial. The State's evidence established a continuous chain of possession from the time the pills left the defendant until they were introduced into evidence. The State also accounted for the fact that the pills had crumbled into a semipowdered form as the result of handling. We are unable to see how the defendant was prejudiced by the prosecutor's comment that it was the defendant who stated that the pills were the size of sugar cubes when the evidence revealed that they were actually only half that size. If that slight error helped anyone, it helped the defendant who argued that the quantity of white powder offered in evidence was too small to have made up the pills described even if they had disintegrated. It could not affect the merits of the case and it does not warrant reversal. People v. Jenko, 410 Ill. 478, 102 N.E.2d 783.

Defendant next argues that it was improper for the prosecutor to imply that the informant was being protected by the State. It was defense counsel ...


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