APPEAL from the Appellate Court for the First District; heard
in that court on appeal from the Circuit Court of Cook County;
the Hon. JAMES J. MEJDA, Judge, presiding.
MR. JUSTICE SCHAEFER DELIVERED THE OPINION OF THE COURT:
On May 10, 1967, a jury in the circuit court of Cook County found Michael Chupich, the defendant, guilty of the unlawful sale of narcotics, and he was sentenced to imprisonment in the penitentiary for not less than 25 nor more than 60 years. The appellate court affirmed in an abstract opinion. 132 Ill. App.2d 302, 270 N.E.2d 106.
On leave granted to appeal, the defendant argues that the trial court erroneously admitted highly prejudicial evidence against him, that the jury was not properly instructed, and that the conduct of the prosecutor in his examination of a witness and in his summation deprived the defendant of a fair trial. In a supplemental petition, the defendant urges that the case should be remanded for resentencing under the Illinois Controlled Substances Act. Ill. Rev. Stat. 1969, ch. 56 1/2, par. 1100 et seq.
Charles Adams, a narcotics agent employed by the State, was the principal prosecution witness. He testified that in July of 1965, Robert Hannah was working for him as a "special employee." Shortly after midnight on July 31, 1965, Adams and two other agents met Hannah in a restaurant on the north side of Chicago. Adams and Hannah then proceeded to the apartment of Hannah's mother and father. The defendant was there when they arrived. Adams testified that Hannah took a paper bag which contained two envelopes from a desk in the living room and that Adams and Hannah went to the kitchen where Adams field-tested the contents of one envelope. The test indicated the presence of heroin.
Hannah then called the defendant into the kitchen and Adams asked what he wanted for the entire bag. The defendant replied that he wanted $1200 for each envelope. Adams said he only had $100 with him but could get the rest of the money by afternoon. The defendant said he was expecting a phone call and would find out what kind of arrangements could be made. Shortly thereafter the phone rang and Mrs. Hannah called the defendant to the phone. Thereafter the defendant gave Adams some of the contents of the bag and Adams gave the defendant $100. Later that day he and other State narcotics agents listed the numbers of $1100 in bills which Adams and Hannah took to the apartment. When they arrived, the defendant, a woman named Betty Riddiford, and Hannah's mother and brother were present. Adams gave the defendant the $1100 and the defendant took a paper bag from his pocket and delivered it to Adams. Adams also testified that the defendant was arrested in November of 1965.
Robert Hannah's mother corroborated the testimony of Adams as to the physical events that occurred in her apartment. She also testified that her son was under indictment for the sale of narcotics at that time, and that he had told her that he had to produce three arrests in order not to "have to worry" about the charge against him.
The defendant's position was that his arrest for selling heroin was the result of a frame-up by Robert Hannah, who, in order to extricate himself from his own indictment, was making a case for the agents. Elizabeth Riddiford, the only witness called by the defense, testified that she had conspired with Hannah to implicate the defendant. She testified that Hannah had invited the defendant to the apartment and had there given him two sealed bags, the contents of which were unknown to the defendant, for delivery to Charles Adams, a State narcotics inspector, and that the defendant then turned over the money received from Adams to Hannah. She testified that she had brought the defendant to Mrs. Hannah's house to fix the television set; that once he was there Hannah asked the defendant to do him a favor and hand a package to a certain person who was coming to the house, saying that he (Hannah) owed that person money and if he delivered the package himself that person would not give him the money " and Mike went along with it, Mike didn't realize what was going on * * * Charley Adams came to the house and Bob [Hannah] introduced him as a friend of his named Charley. The envelope was passed, he handed Mike the money and after Charley was only there for a few minutes and then when Charley left Mike handed Bob back the money * * *."
Prior to trial the defendant moved for a change of place of trial, and in support of that motion alleged that the case had been set for trial on March 10, 1967; that "on or about the 23rd day of February, 1967, during the penderey [sic] of the instant cause there appeared by the various news media, television, radio and newspaper of and throughout Chicago, Illinois, the County of Cook and the jurisdiction of this Court an extensive amount of news coverage which highly publisized [sic] the fact of the death of one, Robert Hannah, a prosecution witness in the instant cause."
The newspaper stories attached to the motion reported that Hannah's mother said that he had disappeared on January 30, four days before he was to testify in a narcotics case. His frozen body was found in a wooded area with a dime frozen to his shirt. He had been shot several times. The stories also reported that his mother said that her son had been warned not to testify against Chupich on February 3 in a case growing out of the sale of narcotics in 1965. One of the newspaper accounts contained the following statements:
"The defendant in the February 3 case, according to state narcotics investigator Charles Adams was Michael (Little Mike) Chupich, an ex-convict.
Adams said he purchased a quantity of high grade heroin for $1200 in 1965 from Chupich a sale that was arranged by Hannah.
Hannah went along as a prosecution witness to view the sale in a Waveland Avenue apartment, according to Adams. Adams said Chupich was not arrested at the time because it was hoped that larger purchases could be arranged.
Meanwhile, he said, Chupich disappeared and was not found again until late in 1965. The court case had been pending since then."
The motion for change of venue was denied, but the case was continued until May 8, 1967, at which time the trial commenced.
The defendant does not contend that the evidence failed to establish his guilt beyond a reasonable doubt, nor does he attack the ruling of the trial court upon his motion for a change of place of trial. His principal contentions in this court center upon the following occurrences that took place during the testimony of Elizabeth Riddiford:
On cross-examination the prosecution asked: "Did Michael Chupich threaten you that something was going to happen to your children if you didn't come in and testify?" The witness answered, "Michael Chupich, no." The attorney who represented the defendant in the trial court first objected, and then said, "Ask her who threatened her." Her attention was then directed to a specific time and place by the prosecutor and she was asked:
"And did you at that time tell Sergeant Harmon and Agent Dumaine that Michael Chupich had told you if you didn't testify as he wanted you to you would never see your children again?
A. No sir, I never said that."
On redirect examination the ...