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People v. Wilkerson

SEPTEMBER 14, 1973.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

T.J. WILKERSON, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. EARL STRAYHORN and the Hon. ARTHUR V. ZELEZINSKI, Judges, presiding.

MR. JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:

Defendant T.J. Wilkerson appeals from a misdemeanor conviction (No. 57133) for possession of heroin in violation of paragraph 402 of the Controlled Substances Act (Ill. Rev. Stat. 1971, ch. 56 1/2, par. 1402), and from an order after a hearing on a rule to show cause revoking his probation on a previous felony conviction (No. 57461) for a similar charge and sentencing him to a term of eight to ten years.

On appeal defendant contends: (1) that the evidence at the trial on the misdemeanor failed to establish that the substance he allegedly possessed was actually a controlled substance, (2) that the conduct of the prosecutor and the trial judge combined to deprive him of a fair trial, (3) that if the misdemeanor conviction is reversed, the revocation of probation which was based upon that conviction must also be reversed, and (4) that the sentence imposed upon revocation of probation was excessive.

On December 1, 1969, after trial by jury, defendant was convicted of possession of heroin in violation of section 3 of the Uniform Narcotic Drug Act (Ill. Rev. Stat. 1967, ch. 38, sec. 22-3). After various post-trial motions, the trial court heard arguments and testimony in aggravation and mitigation. Although defendant had no prior convictions, the State argued that his age, 47, made rehabilitation difficult, recommended a sentence of three to six years in the penitentiary, and agreed not to prosecute other charges then pending against defendant. Defendant argued for probation and complained of police harassment. On May 14, 1971, at the conclusion of the hearing, the court sentenced defendant to five years probation with the first fourteen months considered served (No. 57461).

On October 7, 1971, a complaint was filed against defendant alleging that he had violated section 402 of the Controlled Substances Act (Ill. Rev. Stat. 1971, ch. 56 1/2, par. 1402) by having in his control and possession a controlled substance, heroin, without authority. At trial the charge was reduced to a misdemeanor. Before proceeding with a hearing on a motion to suppress evidence, the prosecutor, without defense objection and in determining whether the State was ready to proceed, asked the arresting officer whether he had defendant's "rap sheet" and the prosecutor stated that he had only the second page of that sheet. After denial of defendant's motion, the matter proceeded to trial without a jury and much the same evidence was presented as at the hearing on the motion to suppress.

At trial, the State's only witness was Officer Wyler of the Chicago Police Department. He testified that he was summoned to 2242 W. Madison Street in Chicago pursuant to a call regarding a robbery in progress, that when he arrived at the tavern at that location he met the complaining witness John Lewis, and that he then arrested defendant, conducted a preliminary search of defendant and transported him to the police station. The discovery of contraband in defendant's possession during a more thorough search at the police station and its subsequent examination were explored in the following questions and answers:

"Q. The contraband recovered from the defendant, officer, was then placed under inventory with the Chicago Police Department?

A. Yes, it was.

Q. And you received back a lab report with respect to the analysis of same?

A. That's correct.

Q. Calling your attention to the lab report, dated 12th of October, 1971, case No. 71-13068-C, under the hand of Charles Vondrak, Chemist, did you find that contraband to be one foil packet containing .18 grams of white powder which was subjected to various chemical identity tests and found to be Diacetyl Morphine Hydrochloride, commonly referred to as Heroin?

A. That's correct."

No objections to these questions were raised at trial. The record also indicates that several of the prosecutor's other questions were leading but that no objections were made. At the close of this evidence the State rested its case.

Defendant testifying on his own behalf denied robbing the tavern, denied having heroin in his possession, denied having a handkerchief in his possession, and admitted having a brown paper bag in his possession but claimed that he was not asked about its contents. At one point, the court admonished defendant not to ...


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