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People v. Kane

AUGUST 8, 1975.




APPEAL from the Circuit Court of Cook County; the Hon. MARVIN E. ASPEN, Judge, presiding.


In a bench trial, defendant was found guilty on charges of possession of heroin and marijuana. On the former, he received a sentence of 7 to 15 years and on the latter 1 to 2 years to run concurrently. On appeal, he contends that (1) the trial court abused its discretion in denying his motion for a continuance when, on the date set for trial, the co-defendant, Rose Baker, failed to appear; (2) the court erred in refusing to admit testimony concerning extra-judicial statements of Rose Baker that she was the exclusive possessor of the narcotics in question; (3) proof of guilt beyond a reasonable doubt was lacking because the heroin was not offered in evidence; (4) the court failed to order and consider a presentence investigation or to hold a proper sentencing hearing; (5) his sentence for possession of marijuana is greater than that authorized by statute; and (6) his sentence for possession of heroin is excessive.

State troopers answering a report of an automobile accident found defendant's car in a ditch next to the highway. One trooper observed defendant lying across the driver's seat with white powder on his right hand, and he saw more white powder, as well as pistol cartridges and a shoulder holster, on the floor. Crouching down to talk to defendant, the trooper saw plastic material with white powder on it protruding from a speaker housing next to the steering column. He removed therefrom two plastic bags containing white powder and a third containing two syringes, a needle, and an eyedropper. He could see white through the plastic.

After assisting defendant and his passenger, Rose Baker (hereafter Rose), into an ambulance, the trooper in a further search of the car found a plaid bag on the passenger's side of the rear seat, a tinfoil packet under the steering column, a revolver in the center console, a bag containing 440 one dollar bills, wrapped in bundles of $40 and $50, in the glove compartment, and another plastic bag containing white powder in the speaker console on the passenger's side. The plaid bag contained a bottle labeled "Lactose Merck," a spoon, a roll of plastic and one of tinfoil, plastic bags, a small glass bottle containing a leafy green substance, a plastic bag containing rubber bands, and a woman's purse. The trooper then went to the hospital where, together with a sergeant of the State police, he questioned defendant and Rose.

Defendant and Rose were indicted together for knowingly and unlawfully possessing the narcotics. However, when this case was called for trial, she did not appear. The State declared that it would try defendant and her together "if she shows up," or would try defendant alone and ask for a bond forfeiture and warrant for her if she failed to appear. Defendant's counsel, who was also representing Rose, then said:

"I can't object to a bond forfeiture and warrant, but this rather embarrasses me in the trial of one defendant without the other being here. Last time she came in at two o'clock. Your honor was kind enough to put it over."

It was then ordered that the charges against Rose be stricken on leave to reinstate, that her bond be forfeited and a warrant issue. At that point, defendant's counsel asked for "a short date in the meantime," to which the court responded:

"No, we are going to trial today on the other defendant. I told you last time, counsel, that we were going to trial. This case has been continued a couple of times and I gave you a firm date."

When the court inquired as to whether defendant desired a bench or a jury trial, his counsel said, "This puts me in an awkward position because * * *." The court then stated:

"* * * You shouldn't be in an awkward position. You knew the trial was set for trial one date. You called me and said I got a problem on that date, asked me to put it over. I put it over. I told you in no uncertain terms, today would be the trial date. You shouldn't feel awkward at all."

In the discussion that followed, defendant's attorney stated:

"I just want a short time to locate her and have her come in here. I am just asking for a week or two until we locate her, if possible."

When it was determined in subsequent colloquy that defense counsel had not seen or heard from Rose since the last time the case was up for trial and the court announced, "We are going to trial today, counsel. Is it a bench or jury?" After a recess, defendant informed the court he desired a bench trial.

At the trial, the trooper testified concerning his observations and actions at the scene of the accident, as set forth above. He stated also that, at the hospital, defendant acknowledged ownership of the gun and money found in the car, but denied knowledge of the contents of the plastic bags and stated the green plaid bag belonged to Rose. Both the trooper and the sergeant testified that they had interrogated her at the hospital; the court, however, sustained objections to defendant's questions to the officers concerning whether she had admitted ownership of the contraband found in defendant's car.

It was stipulated that People's Exhibit No. 7 for identification was heroin weighing in excess of 30 grams and that People's Exhibit No. 16 was marijuana weighing between 10 and 30 grams. Defendant, however, reserved the right to withdraw the stipulation as to the weight of the heroin. The record shows that these and other exhibits were received in evidence.

Defendant testified that he was employed as an electronics technician, had also worked as an auto mechanic, and helped his father manage some buildings. He was married and had five children. He had seen Rose, who was the girl friend of an acquaintance of his, a few times prior to the accident. He had mentioned to the acquaintance that he and his wife were not on good terms and he was going to take a 2-day vacation to Lake Geneva, and his friend asked him to take Rose to Lake Bluff. On the way, she took a gun from the glove compartment and began playing with it. This caused him to become nervous, and he lost control of the car on a curve. It struck another car, left the highway, and after rolling over came to rest in an upright position. In response to a question as to whether he was conscious when the car stopped, defendant replied, "I was dazed. No, I was dazed." Defendant was then asked, "You were aware of what was going on?", to which he replied, "Well, I don't know. Everything happened so fast and everything. I was daced [sic]."

Thereafter, defendant made the following answers on his direct examination concerning a conversation he had with Rose at the time of the accident:

"Q. When the accident took place, did you have a conversation with Rose Baker?

A. Well, it was a one-sided conversation because — Well, it was — Was she told me — She said, `you had better take this and hide it before the cops come.' And I didn't know what it was, so I just took it.

Q. What did she hand you?

A. I don't know. It was some bags she handed me. She had commenced to taking them out of her purse.

Q. What did you do with them?

A. Well, she said, `Hide it,' so this is the only thing I knew to do. Really, I didn't know what it was.

Q. Was she excited or calm at that point?

A. She was pretty well excited.

Q. What did you then do, if anything?

A. Well, I tried to hide it. This is what she asked me to do. I tried to hide it.

Q. By hiding it, what did you do?

A. Well, the only place I knew to hide it was in the speaker, you know. That's ...

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