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People v. Mickelson

OCTOBER 15, 1975.




APPEAL from the Circuit Court of Rock Island County; the Hon. FREDERICK P. PATTON, Judge, presiding.


Rehearing denied November 18, 1975.

Michael Mickelson appeals from a conviction of unlawful delivery of a controlled substance and the ensuing sentence of from 3 to 9 years in the penitentiary, following a jury trial in the Rock Island County Circuit Court.

For an understanding of the issues raised by defendant on appeal it is necessary that we review the evidence. The State produced two witnesses, Robert T. Johnson, a special agent for the Illinois Bureau of Investigation, and Robert Barker, who was a paid informer for the Illinois Bureau of Investigation. Johnson testified that on September 12, 1973, he and Barker went to a Rock Island residence where several people were gathered. Sometime after Barker made a couple of telephone calls, the defendant Mickelson arrived at the house. Johnson then stated that he asked defendant Mickelson if he had the "quarter T" (a quantity of heroin) and the defendant said that he did have it and also that he was ready to sell it for $25. At that point, defendant Mickelson gesturing to Barker said that he would prefer to deal through Barker, whom he knew, rather than directly with Johnson in making the sale. Following Mickelson's suggestion, agent Johnson then gave the money to Barker, and Barker and Mickelson stepped outside the door on the porch out of view of Johnson. After an interval of not more than two minutes, Barker returned and gave Johnson a tinfoil packet, which was later found to contain heroin.

The State called Barker to the stand, but he testified that he did not remember anything about the night in question. He admitted telling the prosecutor a day earlier that he would not testify for several reasons, but stated that he had not told the prosecutor that he in fact did remember the events of September 12. On cross-examination by defense counsel, Barker admitted that he was a $100-a-day heroin addict at the time of this incident and that he was working as a paid informer for the IBI. He also admitted that the IBI had promised to have charges of forgery and drug possession dropped if he worked for them, and that the more people he turned in, the sooner he would get off.

• 1 Defendant argues on appeal that the evidence was insufficient to show an actual delivery of the controlled substance to anyone. The State points out that the defendant stated that he had the heroin with him and that it was for sale for $25 but that defendant wanted to deal through Barker, and that defendant and Barker (who was then given the $25 by agent Johnson to pay for the heroin) stepped out for the very brief time necessary to complete the transaction, and that Barker thereafter turned a packet of heroin over to Johnson.

We agree that the uncorroborated testimony of an addict-informer must be viewed with great caution and, standing alone without any circumstantial corroboration, would be insufficient to support a narcotics conviction. (People v. Watkins (1st Dist. 1966), 68 Ill. App.2d 389, 393, 216 N.E.2d 494; People v. Dade (1st Dist. 1969), 109 Ill. App.2d 337, 341-342, 248 N.E.2d 844.) The cases, however, support the principle that the testimony of a single witness, if positive and credible, is enough to support a conviction, where, in a narcotics case, the testimony is of a law enforcement officer. (People v. Parson (1963), 27 Ill.2d 263, 267, 189 N.E.2d 311; People v. Schneekloth (3d Dist. 1970), 129 Ill. App.2d 451, 454, 263 N.E.2d 500; People v. Wyatt (1st Dist. 1965), 62 Ill. App.2d 434, 210 N.E.2d 824.) The circumstances of the conversation referred to of defendant Mickelson with agent Johnson with respect to the heroin and the receipt of a packet of heroin from Barker, immediately after the two-minute interval sufficient to permit a transfer from defendant to Barker, was enough evidence to allow the jury to return a verdict of guilty. It might have been better practice if the informer had been searched beforehand so as to establish that he had no heroin in his possession. Since the sale, however, was to be made to Johnson, as apparently previously conceived, and not through Barker, no such search had been made. On the basis of the record, the jury had the right to determine whether or not defendant completed the transaction with Barker.

• 2 The fact that Barker stated he could not remember what transpired on September 12 was not helpful to either the prosecution or defendant. We do not believe it was essential to support the conviction, on the basis of People v. Adams, 46 Ill.2d 200, 208-209, 263 N.E.2d 490, where the Illinois Supreme Court said:

"The evidence presented showed a controlled sale of narcotics by an informant acting in cooperation with two police officers. Circumstantial evidence and testimony, if believed, certainly demonstrated the defendant's guilt. It was the function of * * * the trier of fact to evaluate the credibility of the witnesses and its `finding of guilty will be disturbed only where the evidence is so unreasonable, improbable or unsatisfactory as to leave a reasonable doubt as to the defendant's guilt.'"

As a corollary to the attack on the sufficiency of the evidence, defendant specifies that the indictment charged him with delivering the heroin to "Robert Lacey" and correctly notes that no one by that name testified or was even mentioned at the trial. Such a misnomer, however, is merely a formal defect and not a fundamental one (People v. Adams, 46 Ill.2d 200, 204) and as long as the variance did not surprise the defendant or prevent him from properly preparing his case, we do not believe that this omission would justify reversal. See People v. Adams, 46 Ill.2d 200, 263 N.E.2d 490, and People v. Allen, 17 Ill.2d 55, 58, 160 N.E.2d 818.

• 3 Defendant also contends that the court committed error in failing to give the circumstantial evidence instruction, IPI Criminal No. 3.02, in full, which reads as follows:

"Circumstantial evidence is the proof of facts or circumstances which give rise to a reasonable inference of other facts which tend to show the guilt or innocence of defendant. Circumstantial evidence should be considered by you together with all the other evidence in the case in arriving at your verdict."

The court gave the State's version, and omitted the last paragraph which reads:

"You should not find the defendant guilty unless the facts and circumstances proved exclude every ...

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