APPEAL from the Circuit Court of Will County; the Hon. ANGELO
PISTILLI, Judge, presiding.
MR. JUSTICE DIXON DELIVERED THE OPINION OF THE COURT:
The defendant, Allan Kadlec, was convicted of delivery of a controlled substance on October 10, 1972, after a jury trial. He was sentenced by the Circuit Court of Will County to a term of 8 to 20 years. He appeals from that judgment contending:
1. That the trial court committed error in denying his motion for substitution of judge.
2. That the trial court erred in refusing to instruct the jury on entrapment.
3. That the trial court erred in refusing to allow the jury to determine the weight of the controlled substance which was delivered.
4. That the conviction is based on a statute which violates due process and equal protection of the law.
5. That the sentence is excessive and should be reduced.
On January 20, 1972, the defendant sold 300 amphetamine tablets to Agent Joseph Gryz of the Illinois Bureau of Investigation. Gryz told Kadlec that he would want to make other purchases in the future, to which Kadlec replied that he could be reached at a new address and the same telephone number. On January 28, 1972, Gryz purchased 1000 amphetamine tablets from Kadlec and inquired about 3 to 4000 tablets in the future. On February 3, 1972, Kadlec advised Gryz that he would attempt to get the pills and asked Gryz to call back in a week. On February 10, 1972, Kadlec advised Gryz that his "connection" had been arrested and that he would check for other sources. On February 17, 1972, the agent again telephoned defendant and was told by defendant that he had been arrested the prior day and that he would not be dealing for a while until things cooled off.
On February 23, 1972, defendant called the agent and left his telephone number. The agent called back and defendant informed him that he could obtain the quantity and a sale was arranged for the following day.
Agents met at IBI headquarters on the morning of February 24, 1972. Serial numbers of $500 of advanced funds were recorded and the money dusted with fluorescent powder. Surveillance teams were arranged. It was anticipated that defendant would go to his supplier because Gryz would not telephone before going to Kadlec's house as agreed.
At 11:55 A.M. the agent arrived at the Kadlec house and he and defendant went into the basement. The defendant then left the basement and drove to the Marquis residence. Five minutes later he returned and gave the agent a paper bag which contained 4000 tablets of amphetamine. Agent Gryz gave the defendant $460. Gryz departed and defendant went back to the Marquis residence.
Agents Gryz, Petersik and Schissel went to the door through which Kadlec had entered the Marquis house. They were met at the doorstep by Marquis and Agent Petersik, who could see the defendant through the open door, led Marquis back inside the house and arrested both Marquis and the defendant. The money was recovered from Kadlec and a black light was shone on the hands of both men, revealing traces of fluorescent powder. While in the Marquis residence, Agent Petersik found a plastic bag containing about 400 amphetamine tablets.
The defendant and Marquis were taken to the Will County Jail. There the agents processed the evidence. Both the tablets which were obtained through the purchase and those found at Marquis' house were processed at the same table. The agents testified that the pills were not commingled.
The amphetamine was taken to the Joliet Crime Lab where Sandra Rodeghero, a specialist, tested it.
On May 10, 1972, an indictment was returned by the Grand Jury charging Kadlec and Marquis as co-defendants on the charge of delivering more than 200 grams of a controlled substance and charging Marquis with a separate count of possession. A severance was granted on motion of Kadlec. On September 7, 1972, Marquis was brought to trial and he waived jury.
On September 22, 1972, defendant testified on behalf of Marquis. On the same day Judge Pistilli found Marquis guilty of both charges. On October 3, 1972, defendant moved for a substitution of Judge Pistilli. The motion was denied. Defendant then revoked his jury waiver and was tried by a jury.
During the testimony of the first state witness the judge informed the defense attorney that he was not going to instruct on entrapment.
As to defendant's first contention, the law concerning substitution of judge in criminal cases is dealt with in section 114-5 of the Code of Criminal Procedure (Ill. Rev. Stat. 1971, ch. 38, sec. 114-5). The motion for substitution in the instant case was filed more than 10 days after the case had been placed on the ...