APPEAL from the Circuit Court of Will County; the Hon. ROBERT
R. BUCHAR, Judge, presiding.
MR. PRESIDING JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:
Defendant John Bertram appeals, following a jury trial in the Will County Circuit Court, from a conviction of unlawful delivery of lysergic acid diethylamide (commonly called LSD), a controlled substance, in violation of section 401(a)(8) of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1975, ch. 56 1/2, par. 1401(a)(8)). In the appeal, defendant asserts (1) that the evidence adduced at the trial was insufficient to prove his guilt beyond a reasonable doubt, and (2) that the admission of certain testimony by the State's expert witness, not objected to in the trial court, was error which should be considered by this court, for the reason that such testimony contained prejudicial hearsay.
From the record it appears that John Bertram arranged to meet Gary Armstrong, an agent of the Metropolitan Area Narcotics Squad, at a restaurant for the purpose of selling drugs to Armstrong. At that meeting, Armstrong purchased a clear plastic bag containing about 100 purple tablets. When the meeting ended, defendant Bertram asked if he could contact Armstrong in the future. For this purpose, defendant and Armstrong exchanged phone numbers.
Between April 8 and May 2, 1975, Armstrong made five or six telephone calls to defendant's number, and actually talked to defendant on three occasions. On the first of these calls, Armstrong asked defendant why he had not been contacted by defendant. He informed the defendant, at the time that he, Armstrong, desired to purchase more drugs. During the last of the conversations, a meeting was arranged at which defendant was to sell Armstrong 100 tablets of LSD. Defendant and Armstrong met at a bar, where defendant had insisted on talking to Armstrong, before selling him the drugs. After they had talked, the two proceeded to a parking lot located 100 yards west of the bar. Armstrong gave defendant $750, which defendant counted and placed on the grill of Armstrong's truck. Defendant then directed Armstrong to a blue automobile in the parking lot. The driver of the blue automobile then told Armstrong that 10 plastic bags containing the orange tablets could be found under an adjacent vehicle. Defendant was then arrested.
On this appeal, defendant does not contest the commission of the acts which were recited above but, rather, the thrust of his arguments concern the question of whether or not the substance which was delivered to Armstrong was LSD. The substance was subjected to three types of tests to establish the presence of controlled substances. First, Armstrong himself conducted a Voltex test upon the substance at the time of defendant's arrest, which test indicated the presence of LSD. The Voltex test, however, is, concededly, a primitive color test which is not generally used in a laboratory to prove criminality.
Other tests, however, were performed by Sandra Rodeghero, who was an expert witness for the State. She testified that she conducted a color test using Erlic's reagent and a series of three thin-layer chromatographs (TLC's) upon the substance delivered by defendant. The color test using Erlic's reagent, a more sophisticated test than the Voltex test, also indicated the presence of LSD. Since any ergot alkaloid containing an indole group, a number of which are not controlled substances, will produce the same results as LSD in the color test using Erlic's reagent, other tests were made by Rodeghero.
Thin-layer chromatography is a comparative test which requires the use of a standard, a substance that has been positively identified, with which the unknown substance can be compared. In the TLC procedure, small amounts of the test substance are taken up in a solvent, and spotted near the bottom of a glass plate coated with an inert material. The solvent dissolves, leaving the test substance as a residue. The glass plate is then dipped in another solvent, and the solvent is allowed to run up the plate. Since different compounds, or test substances, have different relative affinities for the absorbent coating on the glass plate, the solvent will carry different compounds to different heights on the plate. After the solvent evaporates, the height to which the solvent carried the compound is visible as a spot when the plate is viewed under ultraviolet light. This procedure is performed for a known substance, or standard, and for the test substance. The test results are then compared to determine whether the test substance ran to the same height as the standard.
At the trial, Rodeghero testified that she conducted three series of TLC's. Each series required performance of the test procedure upon the substance delivered by defendant and upon a standard, which was purchased from Blen Laboratory and labeled LSD. Each series used a different test solvent upon the treated plates. Rodeghero tested in this manner the tablets purchased from defendant which weighed a total of 59 grams. Rodeghero testified at the trial that in her opinion the substance she had chemically analyzed was LSD.
The cross-examination of Rodeghero was conducted by a law student, who possesses a Ph.D. in chemistry and who was assisting defense counsel at the trial. On cross-examination, Rodeghero conceded that methods of positively identifying the substance, as opposed to negatively testing the substance by a process of elimination, are available, and that further tests, in addition to TLC, are used by the Drug Enforcement Administration and Department of Justice to identify LSD.
On direct examination, the expert testified to having applied a color test using an Erlic reagent and a series of three TLC's to the substance delivered by defendant. At the close of the direct examination, when she was questioned, she stated in response to question as whether the substance in the plastic bags is or is not LSD, that it was in fact LSD.
On cross-examination, while the expert Rodeghero conceded that indole and ergot alkaloid compounds, some of which are uncontrolled substances, react in the same manner as LSD to the Erlic color test, she had performed additional tests which convinced her that the substance was LSD. Defense argued that a test using the infrared spectrum could be used to identify various drugs, including LSD, but the expert Rodeghero stated that the use of the infrared spectrum testing was not necessary to identify LSD. The witness stated on cross-examination that while uncontrolled compounds may give the same reaction to the color tests as LSD, the series of TLC's led the expert to conclude that the substance contained LSD. Iso-LSD is an uncontrolled substance which is sometimes produced by the same process which is used to manufacture LSD. The witness testified that in the third TLC system, iso-LSD would not run the same distance (produce the same test results) as LSD.
In answer to a question as to whether iso-LSD was present in the substance tested, the expert witness stated that since she had not tested for iso-LSD, she could not state that that substance was present. She testified that to rule out the possibility of the presence of other compounds in addition to LSD, would require the running of a standard of those compounds. The witness finally concluded by stating on redirect examination that no other tests were necessary to determine that the substance was LSD other than the tests which she had made and that based on her expert opinion, the substance was LSD in the pills which were obtained from defendant.
• 1 From the record, therefore, we conclude that the testimony presented was sufficient to support the jury determination that, beyond a reasonable doubt, the delivered substance was LSD. The TLC systems comprise a comparative test and the fact that the witness could not state that certain other compounds were not present in the test substance is not compelling proof that the witness did not know if LSD was in the sample. The expert indicated that while one or two of the TLC systems may not be sufficient to identify LSD, in the ...