APPEAL from the Circuit Court of Cook County; the Hon. RICHARD
J. FITZGERALD, Judge, presiding.
MR. JUSTICE HAYES DELIVERED THE OPINION OF THE COURT:
In Indictment No. 68-1305, defendant was charged with a sale of heroin on 1 April 1968 to a police undercover officer in violation of Ill. Rev. Stat. 1967, ch. 38, sec. 22-3. On 9 July 1969 defendant filed a discovery motion for an order requiring the State, among numerous other things, to "furnish a list of witnesses that the State may or may not call who were occurrence witnesses at the scene of the alleged offense or who were present at the time of the arrest of the defendant". This request was simply denied by the trial court on 23 October 1969 without any discussion, while the court was in the process of ruling on all of the numerous items in defendant's discovery motion. On 10 February 1970, defendant filed a discovery motion for an order on the State "to produce Albert Spagnolli for the purpose of interrogation and as a witness". As grounds for the motion, defendant alleged that Spagnolli was an informer who was present at the time and place of the alleged sale and who was necessary for the preparation of the defense. Defendant further alleged that the whereabouts of Spagnolli were "only known by officers of the State of Illinois and the defendant is unable to learn of his whereabouts".
A hearing was held on this motion that same day. The purchasing officer was called as a witness. He testified that he had received a telephone call from defendant, who asked if the officer wanted to buy heroin. After defendant and the officer had established a meeting place, the officer contacted three other police officers and arranged a plan for the surveillance of the proposed sale. When the officer arrived at the meeting place, he testified that he saw defendant standing alone. Defendant got into the front passenger seat of the officer's car and the sale was thereupon made. The car remained parked during the incident and until defendant had left the car. Defendant was then called as a witness. He testified that he was with Albert Spagnolli at the time of the meeting with the officer. At Spagnolli's suggestion, he and Spagnolli got into the rear seat of the officer's car. The officer then drove the car about one block. During that time defendant was given some money by Spagnolli, but defendant sold nothing to the officer, nor did he see any sale of anything occur. After the short drive, defendant left the car with Spagnolli and the officer still in the car.
The court thereupon denied the motion because there was, in the court's judgment, no credible evidence that Spagnolli was present at the time and place of the alleged sale. The court also based its denial of the motion on the fact that, even if the testimony of defendant were credible, that testimony disclosed that Spagnolli was not a paricipant in any sale, since defendant's testimony was that there had been no sale at all of anything. For these reasons, the court held that there was no right to a disclosure of the whereabouts of Spagnolli.
The jury trial began shortly thereafter. The first witness called by the State was the same purchasing officer. On direct examination he was asked whom he saw when he arrived at the meeting place agreed upon with defendant. He replied that he saw defendant standing alone, and also saw Albert Spagnolli, who was sitting in the rear seat of the officer's car. He testified that he got out of the car and talked to defendant alone. Thereafter, he and defendant got into the front seat of the car, where the sale occurred. He testified that Spagnolli at this time was sitting in the back seat of the car.
At this point, a conference was held out of the presence of the jury during which defense counsel contended that the purchasing officer had changed his testimony as to the presence of Spagnolli. But both the court and the prosecutor pointed out that, at the hearing on the motion to produce Spagnolli, the officer had never been asked about the presence of Spagnolli, and had testified merely that defendant was alone when he (the officer) met defendant. The prosecutor, however, conceded that he also had been caught by surprise, since, when he had opposed the discovery motion by maintaining that no one was present at the alleged sale other than the two participants, he had been operating on the basis of the testimony of the purchasing officer at the grand jury investigation. In that testimony the officer had not mentioned the presence of Spagnolli.
The trial then continued. One of the surveillance officers was called as a witness for the State. While he did not see the sale, his testimony also established that Spagnolli had been in the car at the time and place in question.
Defendant did not testify and the defense called no witnesses.
Following final argument the trial court gave the jury a number of instructions, including the following (IPI 17.01 CRIMINAL and 17.02):
"To sustain the charge of violating the Narcotic Drug Act, the State must prove the folowing proposition: that the defendant sold heroin.
If you find from your consideration of all the evidence that this proposition has been proved beyond a reasonable doubt, then you should find the defendant guilty.
If, on the other hand, you find from your consideration of all the evidence that this proposition has not been proved beyond a reasonable doubt, then you should find the defendant not guilty."
The jury found defendant guilty, and the court, after a hearing in aggravation and mitigation, sentenced defendant to not less than 20 years nor more than 30 years in the Illinois State Penitentiary.
On this appeal, defendant first contends that the trial court erred in refusing to order the State to produce Albert Spagnolli so that Spagnolli might be interviewed and possibly called as a witness by the defense. He contends that production of this witness to the alleged crime was required under the decision of the United States Supreme Court in Roviaro v. United States (1957), 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639. In Roviaro, defendant was charged in Count I of a two-count indictment with the offense of sale of narcotics, and in Count II with the offense of "transporting" narcotics. The informer involved was the buyer in the alleged sale, and could presumably be regarded as the ultimate destination in the alleged "transporting". The Government conceded that the informer's identity and whereabouts should have been disclosed as to Count I, but that his identity and whereabouts were irrelevant as to Count II and his conviction was therefore sustainable on that count. The court in a footnote confirmed the Government's concession as to Count I, but held that the informer's identity and whereabouts were relevant to the defense of Count II in a number of potential respects, so that, even as to Count II the identity and whereabouts should have been disclosed. We note in passing that the designation of the informer as a ...