APPEAL from the Circuit Court of Kane County; the Hon. ALFRED
Y. KIRKLAND, Judge, presiding.
MR. JUSTICE RECHENMACHER DELIVERED THE OPINION OF THE COURT:
The defendant was charged with delivery of a controlled substance, in that he knowingly delivered more than 30 grams of a substance containing LSD. He was tried by a jury, convicted and sentenced to not less than 4 nor more than 6 years in the penitentiary.
• 1 The defendant raises five issues in this appeal, three of which do not require extended consideration. One of these issues, having to do with the constitutionality of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1973, ch. 56 1/2, par. 1100 et seq.), has in the meantime been decided adversely to the defendant's contention by our Supreme Court in People v. Mayberry (1976), 63 Ill.2d 1, which upheld the Act's constitutionality. Another point raised by the defendant that the word "knowingly" in the Controlled Substances Act does not contemplate a conviction for the delivery of a controlled substance other than that which the defendant intended to deliver is pre-empted by this court's decision in People v. James (1976), 38 Ill. App.3d 594 (defendant's co-indictee), where we held that the legislature did not intend conviction under the Act to depend on the defendant's state of knowledge as to the precise nature of the controlled substances actually delivered.
• 2 A third point of appeal we may also dispose of summarily. The defendant contends he was subjected to double jeopardy because he was indicted jointly with James and there was never any motion made for severance of his case from that of his co-indictee, James. The defendant was present in court at the trial of James and there having been no severance the defendant argues that he was actually "on trial" together with James in the latter's case. He contends that under the circumstances, since the James' jury did not return a verdict against him, they in effect acquitted him and his subsequent trial therefore constitutes double jeopardy. We do not consider this a tenable argument. It obviously was not the intention of the State to try the defendant jointly with James. We do not consider the mere fact that the defendant was sitting in the courtroom at the trial of James to constitute the trial a "joint" trial. The defendant may be entitled to a severance for good reason shown but this principle does not require the State to try all joint defendants jointly simply because there was no motion for a severance made by the defendant. The defendant was not placed on trial in the James case and would very likely have had cause to ask for a severance if he had been. In any case he was not subject to double jeopardy and we find this argument to be without substance.
We also note the defendant's question raised concerning the chain of evidence by which the substance in question was identified in court, as being the same substance which was delivered to the undercover agent in question. (See People v. Resketo (1972), 3 Ill. App.3d 633; People v. Scott (1973), 22 Ill. App.3d 770.) The State contends this issue is waived by the failure of the defendant to raise it at the trial or on the post-trial motion (People v. Pruitt (1974), 16 Ill. App.3d 930.) In view of our resolution of the remaining issues we do not determine whether the effect of the defendant's failure to object to the chain of evidence at trial or in post-trial motions foreclosed the issue. A new trial may not produce the same evidentiary situation.
We turn now to the two questions which still remain in this appeal. First, whether the trial court abused its discretion in excluding the testimony of a defense witness, Terry Williams, and second, whether the alleged remarks of one of the jurors during the jury's deliberations, indicated such prejudice in the juror, existing prior to the deliberations, as to deprive the defendant of a fair trial.
To appreciate the ramifications involved in the trial court's ruling precluding Terry Williams from testifying for the defendant, it is necessary to briefly reconstruct the factual background of the case. The defendant was a friend of Larry James, his co-indictee. He testified that on the night when the alleged delivery of LSD took place he had gone to Topps Restaurant, with another friend, Terry Williams. While the defendant was at Topps eating a sandwich he saw his friend, Larry James, there at a nearby booth. He testified he had not arranged to meet James and he did not expect him to be there but had gone to Topps after having been shopping with Williams. He had known James since his high school days but had not seen him for about a week prior to the meeting at Topps. According to the defendant's testimony, James, upon seeing them, came over and sat with the defendant and Williams at their booth. He then offered the defendant and Williams some chocolate mescaline to "try" and they both took it and ate it. James, according to the defendant, then mentioned that the price of the mescaline was two dollars a piece but the defendant and Williams did not pay him anything. James, according to the testimony, then got up and went to the front of the restaurant and about 25 minutes later came back to the defendant's table and said he wanted the defendant "to meet some people, some of my friends." The defendant testified he accompanied James to a table where were seated two other people, one of whom he knew as Roger Anderson. James proceeded to introduce the other man to the defendant as "Tony" and introduced the defendant to Tony as his "partner, Gerry."
The defendant testified that Tony (who was actually DeFranco, an undercover Narcotics Bureau agent, brought there by the other member of the group, Anderson), then inquired as to "how good the stuff was." The defendant testified he answered that it was good but that in saying this he was under the impression that Tony (DeFranco) was referring to the chocolate mescaline he and Williams had just sampled at James' behest. After a moment or two of further conversation, according to the defendant's testimony, James and DeFranco then got up and left the table and went outside. They returned in about five minutes. Shortly after that the group broke up and Terry Williams and the defendant left the restaurant. According to the defendant that was all the conversation he had with either DeFranco or James he testified he talked briefly to Anderson regarding some needed repairs to his car (Anderson being connected, the defendant said, with a service station).
DeFranco's testimony which was the entire substance of the State's case was to the same effect except that his testimony added some additional words to the conversation he had with the defendant at the table. He testified that when he inquired as to the quality of the mescaline (generally, to the whole table) that the defendant stated that he and James "had traveled to Rockford the day before and purchased the mescaline for 40 cents a hit." DeFranco said the defendant said it was good quality and that DeFranco then asked him how he knew, to which the defendant replied that so far nobody had complained about it. It is on these alleged words, that is that the defendant and James had traveled to Rockford the day before and purchased the mescaline for 40 cents a hit and that nobody had complained about it, together with the fact that James had introduced the defendant as his "partner" that the State rests its case against the defendant on a theory of accountability.
A serious question arises, however, as to the authenticity of DeFranco's testimony as to this critical conversation by reason of the fact that admittedly he made no reference to such conversation in his report written just after the alleged conversation took place. There was no explanation of this omission in DeFranco's testimony at trial.
On pretrial discovery the defense did not list Terry Williams as a witness. However, following a favorable ruling in limine by the court to the effect that the defendant's past convictions could not be used to impeach him if he took the stand in his own behalf, defense counsel informed the State's Attorney that he intended to call Williams as a witness. The State had previous knowledge that Williams had been at the scene and actually had had his record checked for possible narcotics' violations. Defense counsel, in tendering Williams as a witness for the purpose of corroborating the defendant's testimony, offered the State full opportunity to discover beforehand what the substance of his testimony would be. Williams would not have been called to testify until the next day which would have allowed 24 hours for the State to ascertain the substance of his testimony. Defense counsel explained to the trial court that initially he had not listed Williams as a witness because Williams was only a corrobatory witness and if defendant had not been successful with the in limine motion to exclude the defendant's previous record if he testified, there would have been no reason to call Williams, his testimony being worthless unless the defendant also testified. The State, however, objected that it was taken by surprise, that it would be given only one day to check Williams' record and that it would thus be prejudiced. The trial court, referring to Supreme Court Rules 413(d) and 415(g) (Ill. Rev. Stat. 1973, ch. 110A, pars. 413(d) and 415(g)) ruled that Williams could not testify.
There is some question whether the facts related above constituted a violation of Supreme Court Rule 413(d)(i) as contended by the State. The rule requires the defense to disclose the names and addresses of all "persons he intends to call." The facts related above indicate the defense did not form the intention of calling Terry Williams until the favorable in limine ruling of the court in connection with disclosures of his past record made it tactically permissible to call the defendant in his own behalf, thus giving scope to the corroboration by Williams.
In any event, however, considering this ruling in the context of the facts related above and giving all deference to the discretion with which the trial court is clothed in enforcing the provisions of Supreme Court Rules 413(d) and 415(g), we are of the opinion that the circumstances did not justify the exclusion of the witness's testimony. Had the State's case been overwhelming or even strong, such an abuse of discretion on a difficult point might be looked upon as harmless error. But, in a criminal case where the prosecution depends entirely on a few words allegedly spoken by the defendant, words denied by the defendant and not contained in the agent's original written report and where the import of such words must be construed in a certain manner to determine a guilty meaning the background facts may be of crucial significance. Thus, any testimony tending to allay the guilty implication ascribed by the prosecution to such facts may have weight and influence beyond their scope in the ordinary case. The testimony of Williams would probably, at least to some extent, have corroborated the defendant's story of the transaction in question. In his closing argument the State's Attorney made strong implications to the effect that the defendant was at Topps Restaurant by pre-arrangement to help in the sale of the drug. The testimony of Williams might have helped the defendant in countering the State's theory of the case based on this argument. For example, when the defendant answered a question by DeFranco by saying it was "good stuff" was he trying to promote a bulk sale of a controlled substance or was he simply making a casual response as to the sample bar of chocolate mescaline he had just been handed by James?
Also to be considered is the fact that the State claimed to be unable to locate the fourth witness to the transaction Anderson the informer. The testimony of Officer DeFranco, elicited by defense counsel brought out the fact that the Illinois Bureau of Investigation had sent Anderson to Minnesota, but while the IBI had paid his way there they were unable (or unwilling) to furnish information as to his whereabouts. Thus, two vital witnesses were excluded and the jury heard only ...