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People v. Behnke





APPEAL from the Circuit Court of Williamson County; the Hon. WILLIAM LEWIS, Judge, presiding.


Appellant Thomas Behnke was indicted for the Class 1 felony of unlawful delivery of 30 grams or more of a substance containing lysergic acid diethylamide (LSD) in violation of section 401 of the Controlled Substances Act (Ill. Rev. Stat. 1973, ch. 56 1/2, par. 1401(a)(8)). He was found guilty by a jury in the circuit court of Williamson County and was sentenced to not less than four years nor more than 12 years in the penitentiary.

On appeal the appellant challenges the constitutionality of the statute under which he was convicted. Alternatively, he urges us to reverse his conviction on the grounds that the trial court erred in allowing the State to cross-examine the defense's expert with a manual published by a drug enforcement agency of the federal government. The appellant argues that the status of this document as a "learned treatise" was not established and its use was therefore prejudicial.

According to the testimony of an undercover agent from the Illinois Bureau of Investigation, on December 17, 1973, Thomas Behnke sold him 1000 tablets which were purported to contain LSD. The pills were sent to the Illinois Bureau of Identification for testing by the State's supervising criminalist, Daniel Lecocq. He testified as to the tests he had performed and concluded that the substance involved was LSD. The defense's only witness was Dr. Billie Fairless, a Ph.D. chemist with the Environmental Protection Agency and on leave from Indiana University. He testified as to the tests he had performed on four of the pills and concluded that the tablets did not contain any detectable amounts of LSD. Moreover, he indicated that the tests performed by the State's expert were not conclusive for LSD and could have reflected several other compounds besides LSD.

Over the objection of defense counsel, the prosecutor used a manual entitled Basic Training Program for Forensic Drug Chemists, published by the Federal Bureau of Narcotics and Dangerous Drugs, to cross examine this witness. While Dr. Fairless testified that he would recognize the Federal Bureau of Narcotics as authoritative with regard to some, but not all, tests concerning LSD, he neither based his testimony on any information from that Bureau nor did he recognize the manual or the names listed in the acknowledgements as authorities on the subject. The prosecutor then asked Dr. Fairless whether he agreed with short passages which the doctor read from the manual concerning the usual form in which LSD was found and the usual methods of identifying it. Fairless replied that he did not, and he further disagreed with the conclusions suggested by the prosecution in its follow-up cross-examination. The trial court had reserved its ruling on the defense's objections to the use of this manual during Dr. Fairless's testimony.

During the State's rebuttal, Lecocq, who had received part of his training from the Federal Bureau of Narcotics in Washington and who had supplied the State with the manual in question, testified that he recognized both the manual and the officials listed on the cover as being authoritative. The record does not disclose who the authors of the manual were or the role played by these officials in putting it together. The trial court then overruled the defense's objection and admitted the manual into evidence. The book itself was ordered excluded from the jury. In his final arguments, the prosecutor again referred to the manual, contrasting the brief statements previously cited with Dr. Fairless's testimony.

• 1 At the outset, a question has been raised by the appellant concerning the validity of the statute under which he was convicted. Before proceeding to the merits, we must look at the State's contention that consideration of the constitutional question has been waived because, in the State's view, the defendant's references to these issues at the instruction conference and in the post-trial motion were insufficient to preserve them on appeal. We cannot agree. The question of the constitutionality of a statute is properly presented for review when it has been raised in and passed on by the trial court. (People v. Oliger, 32 Ill. App.3d 889, 336 N.E.2d 769; People v. Amerman, 50 Ill.2d 196, 279 N.E.2d 353.) In the case at bar, the validity of the statute was raised in the post-trial motion and was specifically passed upon by the trial court. This is sufficient to preserve the issue for review.

The appellant argues that the classification of offenses under the Controlled Substances Act according to the weight of the "substance containing" the controlled drug bears no reasonable relationship to the purpose of the statute and thus violates both the equal protection clause and the due process clause of the Fourteenth Amendment to the United States Constitution. The thrust of this position focuses on the legislative intent to penalize "illicit traffickers" in a drug more heavily than the "occasional petty distributor." (Ill. Rev. Stat., 1973, ch. 56 1/2, par. 1100.) The appellant maintains that by tying the seriousness of the offense to the weight of the substance containing the controlled substance, it is theoretically possible that a petty distributor who sells 30 grams of a substance, only 1 percent of which is LSD, will be subjected to a greater penalty than the trafficker who sells 29 grams of pure LSD. According to the appellant, this not only represents unequal treatment of those who have committed similar offenses but it also reflects an irrebuttable presumption in violation of the due process clause, that one who delivers a substance weighing more than 30 grams is a trafficker, regardless of the concentration of LSD.

• 2 However, in accordance with the recent Illinois Supreme Court case of People v. Mayberry, 63 Ill.2d 1, 345 N.E.2d 97, which considered virtually the same issues presented by this case, we must agree that the classification scheme of the Controlled Substances Act is not unconstitutional merely because it is based on the amount of substance containing the controlled substance rather than upon the amount of pure controlled substance. Using reasoning similar to the United States Court of Appeals in United States ex rel. Daneff v. Henderson, 501 F.2d 1180 (2d Cir. 1974) which was cited with approval, the court in Mayberry noted that dangerous drugs are generally marketed in a diluted state. Therefore

"* * * it was not unreasonable or irrational for a legislature to deal with the mixture or compound rather than the pure drug. * * * Our legislature may have believed that any given amount of drug can be distributed to a greater number of people and thus have a greater potential to be harmful if it is mixed with another substance. While the soundness of that belief may be questionable, the determination is one for the legislature to make, and we cannot find that the classification schemes at issue have no reasonable basis." (People v. Mayberry, 63 Ill.2d 1, 9.)

As pointed out by the appellee in this case, the intention to punish petty distributors less severely than traffickers is only one of the several objectives expressed in the Controlled Substances Act (Ill. Rev. Stat. 1973, ch. 56 1/2, par. 1100). Other objectives include the intention to limit the access of the general population to such substances and to deter drug abuse. In light of these purposes, the conclusion of the legislature that "greater quantities present a greater threat to society * * * cannot be treated as irrational." (United States ex rel. Daneff v. Henderson, 501 F.2d 1180, 1184 (2d Cir. 1974).) The treatment of one who is convicted of delivery of a certain amount of a substance containing a controlled substance is not, therefore, based upon an irrebuttable presumption that the person convicted is a trafficker, but upon the legislature's reasonable perception of the threat to society in delivery of a large quantity of that substance by any person.

The defendant urges that since a "fundamental" right to be free from excessive imprisonment is involved, the "strict scrutiny" test should be used in this case to determine whether the classification scheme used in the Controlled Substances Act complies with the requirements of the Fourteenth Amendment. This test would necessitate an additional showing of a compelling State interest and no reasonable alternative for accomplishing the State's objective in order to find the statute valid. However, in both the Mayberry and Daneff cases, which presented almost identical fact situations to the case at bar, with the same rights involved, the courts held that to satisfy both clauses of the Fourteenth Amendment it was only necessary to ascertain whether there was a rational basis for the classifications drawn by the legislature. People v. Mayberry; United States ex rel. Daneff v. Henderson.

"[W]e presume that the classification is valid and place the burden of showing invalidity upon the party challenging the classification. A classification scheme will be upheld if any state of facts may reasonably be conceived which would justify the classification." People v. Mayberry, 63 Ill.2d 1, 9.

• 3 We turn now to appellant's contention that the trial court committed reversible error in allowing the State to use a training manual published by the Federal Bureau of Narcotics and Dangerous Drugs to cross-examine the defense's expert. The State maintains that its use of the manual falls squarely within the rule of Darling v. Charleston Community Memorial Hospital, 33 Ill.2d 326, 211 N.E.2d 253. Darling is perhaps the leading case which established the rule allowing cross-examination of expert witnesses by the use of so-called "learned treatises" whose authority has been established by ...

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