APPEAL from the Circuit Court of Cook County; the Hon. MARVIN
E. ASPEN, Judge, presiding.
MR. JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:
Louis Martin was charged in indictment 72-86 with the sale and possession of a narcotic drug on July 12, 1971, in violation of sections 22 and 23 of the Criminal Code (Ill. Rev. Stat. 1969, ch. 38, §§ 22, 23), and he pled guilty to this charge. Defendant was also charged in a second two-count indictment, 72-87, with the sale and possession of a narcotic drug on July 14, 1971, in violation of sections 22 and 23 of the Code, but he entered a not-guilty plea to this charge. However, the jury returned a verdict finding defendant guilty. Defendant was sentenced to 1 to 4 years in indictment 72-86 and 3 to 9 years in indictment 72-87; the sentences were to run concurrently.
A notice of appeal was filed in both cases, but this court allowed their consolidation. The only issues raised in this appeal concern indictment 72-87. Therefore, the decision of the trial court in indictment 72-86 will be affirmed without discussion. Defendant contends in this appeal that he was denied his constitutional right to a fair trial.
On July 19, 1971, the defendant was arrested and charged with the sale and possession of narcotics on July 14, 1971. A jury trial was held and the prosecution presented one witness, Officer Terrence Markham, a undercover narcotics agent. Officer Markham testified that on July 14, 1971, at approximately 5 P.M., he received a telephone call from a special employee, Orville Parker. Parker told the officer that he could set up a heroin sale, so Officer Markham and his partner met Parker at Ohio and California Streets between 5:30 and 6 P.M. The men talked and then they proceeded in Parker's automobile to 1740 West Huron where they met Louis Martin, the defendant. The defendant was sitting on the steps, but he came over to the car and, when Parker told him that Officer Markham was all right and was interested in purchasing some heroin, he got into the car and told Parker to drive to Crystal and Wood Streets. During the drive, Martin asked the officer what he wanted to purchase and Markham told him a $25 bag. When the men reached the northeast corner of Crystal and Wood, Martin asked the officer for the money, which he received.
Martin got out of the car, walked northbound on Wood to the alley and went eastbound. While Martin was away, Parker and Officer Markham remained in the car. Five minutes later Martin returned, got into the car and told Parker to drive him home. Martin gave Officer Markham a plastic bag during the trip, and the officer placed it in his pocket. When he reached his destination, Martin got out of the car and told Officer Markham to contact Orville Parker if he wanted to buy again and it would be no problem. Then Parker and Officer Markham proceeded from 1740 West Huron and rendezvoused with the officer's partner. Officer Markham put the packet of white powder into an envelope and signed it so his partner, Office Iosello, could deliver the package to the crime laboratory.
On cross-examination, Officer Markham was asked to explain what a special employee is since this was a term he used during direct examination. He testified that a special employee is a person who works for the Chicago Police Department. However, he indicated that Orville Parker was not directly employed by the police department since he did not receive a salary or a fee for his services. Officer Markham stated that Parker received gratification from knowing that a person who sold heroin to a relative was being stopped. In concluding Officer Markham's examination, the prosecutor and defendant's attorney stipulated that the plastic packet that Officer Markham gave to Officer Iosello contained heroin.
Orville Parker testified on behalf of the defendant that on July 14, 1971, he and Officer Markham, a narcotics agent whom he met on July 12, 1971, were in Frank and Dottie's tavern drinking beer. Parker stated that he received $20 from Officer Markham when they saw the defendant outside the tavern. Parker testified that he talked with Officer Markham and the defendant, but he stated that he never discussed heroin in the officer's presence. Parker stated that he bought narcotics with the money he received from Officer Markham, and he turned the narcotics over to the officer after purchasing them. Parker, in completing his testimony, stated that Officer Markham never purchased narcotics directly from the defendant.
• 1 The issue before this court is one which is fundamental to our system of justice and involves the question of whether the accused in this case was deprived of his right to a fair trial. The defendant argues that his right to a fair trial was violated by certain improper statements in the prosecutor's closing argument. Under the due process clause and the sixth amendment to the Federal Constitution, as well as under the Constitution of the State of Illinois, an accused in a criminal prosecution is accorded, and indeed guaranteed, the right to a fair and impartial trial, (People v. Cuttley (1967), 82 Ill. App.2d 321, 328, 226 N.E.2d 479), and a defendant, no matter how reprehensible his crime or how black his history of past misdeeds, is entitled to have these constitutional rules applied. People v. Gregory (1961), 22 Ill.2d 601, 177 N.E.2d 120.
The Illinois Supreme Court reversed a conviction in People v. Freedman (1954), 4 Ill.2d 414, 123 N.E.2d 317, because of the improper and highly prejudicial remarks of counsel. The prosecutor in Freedman alleged that the defendant testified that he was intoxicated after discussing the case with his attorney and discovering that intoxication was a defense to the crime with which he was charged. Consequently, the court held that arguments of a prosecutor which charge a defendant's counsel with attempts to free his client by trickery tend to deprive the accused of a fair trial and should not be permitted.
In the instant case the evidence is close and conflicting. The evidence is close because the testimony of the State's witness, a police officer, is diametrically opposed to the testimony of defendant's witness, a special employee of the police department who set up the sale, but happens to be a drug addict. The evidence conflicts in that Officer Markham testified that he purchased heroin from the defendant for $25, while Parker testified that he personally purchased the heroin from defendant for $20. Nevertheless, the defendant alleges that the prosecutor insinuates in closing argument that his attorney is resorting to trickery by stating:
"Now Mr. Green, counsel for the defense, is no doubt trying to defend his client in any way he can. I would indicate to you he made his opening statement he talked about Orville Parker and you may recall that he had nothing good to say about Orville Parker * * *.
I would ask you to consider that possibly his [Parker's] testimony is changing perhaps in relation to asking someone's help, perhaps counsel to get out of that jail, that perhaps he would come here and tell you a story yesterday that has no relationship to the truth at all.
I would ask you to also consider the fact that as Mr. Green said, that when this witness was brought here that prior to getting on the stand and just prior to getting on the stand did Mr. Green and Orville Parker have a conversation in that conference room and that Mr. Parker came out here and told you a story and I think you can consider that as well."
The prosecutor's closing argument suggests that defense counsel would "use any means" to free his client including suborning perjured testimony from his witness. This commentary only arouses the passions of the jury against the defendant and his counsel and does not serve the interests of justice. (People v. Weathers (1974), 23 Ill. App.3d 907, 914, 320 N.E.2d 442.) It is impossible to determine the effect ...