APPEAL from the Circuit Court of Champaign County; the Hon.
BIRCH E. MORGAN, Judge, presiding.
MR. JUSTICE CRAVEN DELIVERED THE OPINION OF THE COURT:
Defendant was indicted, tried and found guilty in a bench trial of knowingly agreeing to unlawfully sell certain narcotic substances, to wit, a quantity of cocaine, and then sold a nonnarcotic substance in violation of section 38 of the Uniform Narcotic Drug Act (Ill. Rev. Stat. 1969, ch. 38, par. 22-40). Judgment was entered on the verdict and defendant was sentenced to an indeterminate term of 3 to 9 years. The defendant appeals.
Several issues are submitted for review: (1) whether the indictment upon which defendant was convicted was fatally defective; (2) whether the People's Exhibits 1 and 2 were properly admitted into evidence; (3) whether the State established all of the essential elements of the offense in question, specifically that defendant knowingly sold a nonnarcotic substance; (4) and lastly, whether defendant's guilt was proven beyond a reasonable doubt. The defendant asserts that because of these alleged defects his conviction should be reversed, his sentence vacated, and he prays that he be discharged.
Defendant was originally indicted in a seven-count indictment. The last three counts were severed and tried separately. As to Counts I and II, the trial court directed verdicts of acquittal for defendant at the conclusion of the State's case. After a bench trial the trial court found defendant guilty of Count III and entered judgment thereon.
Defendant's bench trial commenced on January 4, 1972. The State called a total of four witnesses: Larry L. Cook, Gerald O. Long, Kenneth Crain Vail and Harold Frank Hanel.
Cook, a special agent for the Illinois Bureau of Investigation, testified that he went to 1400 Briarwood Lane in Champaign on July 8, 1971, at approximately 11:23 P.M. At that address Cook met John Aprile and the defendant. They engaged in a conversation concerning how much "coke" Cook could push. Cook stated that when he used the term "coke" he was referring to cocaine. The defendant purportedly asked whether Cook thought he could gross $9000 from the sale of one-half pound of cocaine. Cook told them that he would have to get in touch with contacts at Carbondale, Edwardsville and Charleston in order to raise that amount of money. Cook was told that he would be contacted in approximately 6 to 8 days. After leaving the residence, Cook then met with Gerald Long and Michael Leahy, the surveillance agents assigned to the case. Agent Long had the residence in question under surveillance the entire time that agent Cook was there.
Cook returned to the same address on July 15, 1971, after he had been contacted. He informed defendant that he was only able to raise $1000 because his contacts in the other part of the State had dried up. Defendant allegedly answered: "That's all right, Larry. We'll show them dudes." Aprile then removed a towel from around a clear plastic bag containing a white powdery substance. He handed the entire bag to Cook who then proceeded to determine the nature of its contents. Cook sampled the substance and after a few moments he experienced a numbing effect on his lips. The plastic bag was purportedly filled with cocaine. Cook then emptied a portion of the bag which was labeled "nature's best" into a plastic container from which he took 66 level teaspoons and emptied them into another plastic bag. In the course of the transaction, defendant asked Cook how much he thought he could gross off the sale of a single spoon. Cook replied $150 per spoon. After concluding the transfer of the substance, he stuffed the bag into another bag bearing a distinctive Avon marking. Cook then counted out $1000 and turned it over to defendant. Defendant then allegedly told Cook that once the balance of the remaining amount due under the agreement was paid then he would not have to put any money down in the future. "You'll just pay for it as you push it." They gave Cook two weeks to come up with the balance due.
Cook picked up the Avon bag and left the premises. Thereafter, he met with agents Long and Ernst at a prearranged location. These agents had the residence under surveillance during the time that Cook was inside. On July 16, 1971, he carried the contents of the Avon bag contained in a sealed evidence envelope to the Illinois Criminal Bureau lab in Springfield and gave custody of the item to one Weiss, a lab technician. At trial, Cook identified the contents of a sealed evidence envelope, People's Exhibit 1. It contained the white powdery substance that he purchased on July 15, 1971, at 1400 Briarwood Lane from defendant. Cook stated that the purported cocaine had been chemically tested out to be tetracaine.
Cook testified that from the time he received the contents of People's Exhibit 1 until July 16, 1971, when he turned the evidence over to lab technician Weiss, the bag was either in his continuous and exclusive possession or in an evidence vault; and that it was in the same condition the day it was transferred to the lab as it was the day Cook received it from defendant.
In cross-examination Cook stated that after receiving the substance in question, he tested it with a Valtox field kit. Cook stated it reacted positively for cocaine but that many noncocaine substances may give an initial positive reaction to the same test. Defense counsel asked Cook whether the yellow plastic measuring spoon he used to spoon the white powdery substance into his plastic bag was a standard measure. Cook replied that he did not know. He stated that it was a single measuring spoon and that he assumed it was a teaspoon; but that its volume was slightly less than the normal measuring teaspoon. Defense counsel then asked Cook to make a comparison of the quantity of substance that he purchased at 1400 Briarwood Lane and the quantity presented in court, People's Exhibit 1. After further questioning, Cook stated that the amount present in court was fairly close to the amount that he had purchased. Defense counsel then presented Cook with two metal standard measuring spoons, defendant's Exhibits 4 and 5. He examined them and concluded that they were of totally different construction than the spoon used when purchasing the substance in question. Defense counsel asked Cook to make a comparison of the volume contained in the two spoons presented at trial and that used to make the measurements in question. Cook replied that he could not do this without filling them up. Defense counsel asked agent Cook to take the plastic bag in question and measure out 66 teaspoonsful of powder in the same fashion that he did on July 15, at 1400 Briarwood Lane, with either defendant's Exhibit 4 or 5. The State objected and the trial court upheld the State's objection whereupon the defendant made an offer of proof. The court rejected the offer of proof on the grounds that defendant failed to establish what type of teaspoon was originally used in the transaction in question.
The State next called Gerald Long. Long was a squad leader of the Illinois Bureau of Investigation, Division of Narcotics. He testified that agent Cook was in Long's squad on July 8 and 15, 1971; that on the 8th and 15th of July he had an occasion to be in Champaign County on official business. He was conducting surveillance of 1400 Briarwood Lane, the residence where agent Cook had contacted the defendant concerning the purchase of cocaine. Long testified that he was accompanied by agent Leahy on one occasion and by agent Ernst on another when 1400 Briarwood Lane was put under surveillance. According to Long neither he, Leahy or Ernst entered the premises in question with agent Cook. Long admitted that he could not observe the entrance to the premises on the two dates that Cook entered due to his vantage point, but that he did observe the vehicles that were parked to the west of the residence and that he had seen agent Cook leave his car and go toward the residence and that at a later time he observed Cook returning to his vehicle. Agent Long stated that he gave Cook the funds necessary to purchase the drugs. On cross-examination Long stated that at no time did he search Cook or his car before or after Cook left the residence in question.
Kenneth Vail, a chemist for the Illinois Bureau of Investigation, testified that he received the substance in question from a technician, George Weiss, in a sealed envelope and immediately assigned it with a number. He then performed chemical tests on it and found that no narcotic drug was present. Upon cross-examination, he stated that the substance in question weighed approximately 180 grams upon receipt and that the substance was removed from the vault for testing on two occasions. 3.208 grams were removed from the evidence envelope for transmission to the Federal Narcotics Bureau for chemical analysis.
Harold Hanel testified that he was a forensic chemist for the Federal Bureau of Narcotics and Dangerous Drugs. He stated in that in July 1971 he received a sample from Mr. Vail for chemical testing. When he received the sample it was in a sealed container. He performed certain chemical tests on it and found that the same did not contain any cocaine or any other narcotic drug, but that it was tetracaine, a nonnarcotic. He then resealed the substance in the container People's Exhibit 2 with an "Avery label" that cannot be tampered with without easy detection; and he retransmitted it to Mr. Vail. He stated that the substance was in his exclusive possession and control or in the evidence vault during the interim.
At the conclusion of the People's case, the state's attorney moved for the admission of People's Exhibits 1 and 2. Defense counsel objected on the grounds that the State failed to lay proper foundation for their admission because the State allegedly did not account for all of the substance which was purchased from defendant; and that the State failed ...