APPEAL from the Circuit Court of Jackson County; the Hon.
RICHARD E. RICHMAN, Judge, presiding.
MR. JUSTICE JONES DELIVERED THE OPINION OF THE COURT:
On November 7, 1974, an information was filed in Jackson County charging defendant-appellant, Paul W. Dunn, with the offense of unlawful delivery of a controlled substance, cocaine. (Ill. Rev. Stat. 1973, ch. 56 1/2, par. 1401(b).) Defendant was arrested that same day. Defendant was found guilty after a jury trial in the circuit court of Jackson County and was sentenced to the Illinois Department of Corrections for a period of not less than one nor more than three years and to a fine of $1500.
Three issues are presented by defendant in this appeal: (1) whether the court erred in denying defendant's pretrial motion for dismissal of the charge because of a 262-day delay between the alleged offense and the filing of the information; (2) whether the State proved defendant guilty of the offense beyond a reasonable doubt; and (3) whether the court erred in refusing to give instructions tendered by defendant on a lesser included offense and giving certain instructions of the State over defendant's objections.
The State's case consisted of the testimony of three witnesses. Two of these witnesses, Louise Banks and William Hood, were special agents of the Illinois Bureau of Identification (IBI). The third witness, Daniel Lecocq, was a criminalist at the IBI crime lab in Desoto, Illinois. The defendant did not present any witnesses.
Agent Louise Banks testified that on February 19, 1974, she was working with William Hood, another special agent of the Bureau. On that day she rode in an unmarked State vehicle, driven by agent Hood, from Springfield to Carbondale, Illinois. Her purpose in making this trip was to purchase narcotics from the defendant. She indicated in court that the defendant was the man she was referring to and with whom she dealt on February 19.
She met defendant at the Carbondale Holiday Inn at approximately 1:10 or 1:15 p.m. This arrangement was set up through a confidential source who remained nameless throughout the trial. When agent Banks arrived at the Holiday Inn, the defendant was standing in front of the building. As defendant and agent Banks went to defendant's car, defendant told her they should go to the Pizza Hut to consummate the transaction since there were lots of police who "hang out" at the Holiday Inn. Agent Banks returned to agent Hood's car and told him they would be going to the Pizza Hut, which was across the street and some distance down the block. Agent Banks proceeded to the Pizza Hut with the defendant in his car, which she described on cross-examination as a tan 1967 or 1968 Chevrolet. Agent Hood followed them to the Pizza Hut lot.
Once in the Pizza Hut parking lot, defendant removed a clear plastic bag from his coat; it contained a black chunky substance which defendant represented as cocaine. Agent Banks had never seen any cocaine in this form. Defendant said he had not either but understood that it was good "stuff." Agent Banks got out of defendant's car and went to agent Hood's car to confer on whether to buy this substance. They decided to do so. Agent Banks returned to defendant's car and gave him $1400 in unmarked bills in exchange for the substance. When she got back into agent Hood's car after the exchange, she showed him the substance which she had transported in her purse.
Agents Banks and Hood proceeded to the Marion IBI office where they placed the plastic bag containing the substance into an evidence envelope and marked them both with their initials and signatures as well as with other pertinent information concerning the circumstances under which it was received. Agents Banks and Hood thereafter took the evidence to the Desoto crime lab and gave it to criminalist Daniel Lecocq for analysis. Agent Banks identified the substance and envelope, presented at trial as People's Exhibit 1, as the item she received from defendant and marked in the Marion office.
Several matters were elicited during cross-examination of agent Banks including the following: (1) agent Banks believed February 19 was the only time she was in Jackson County in 1974; (2) agent Banks made some notes immediately after the incident concerning the alleged sale which were not available at the time of the trial but were used to prepare her report of the incident; (3) agent Hood did not search her person or her purse prior to the alleged sale as would be done if the purchaser were an informant; and (4) agent Banks reviewed her report and the lab report prior to the trial to refresh her memory although she remembered the incident.
Agent William Hood identified defendant as the man agent Banks met on the day in question. His testimony corroborated agent Banks on most matters. He, however, did not see the actual exchange of narcotics for money. Agent Hood picked up the substance, People's Exhibit 1, on July 17, 1974, from Mr. Lecocq in Desoto. He took it to Springfield and it was locked in the Bureau's evidence vault the same day. Agent Hood took it out the morning of the trial and brought it to the court.
Defendant attempted to impeach agent Hood's testimony by virtue of inconsistencies between his testimony at trial and at the preliminary hearing. At trial, agent Hood testified that on February 19, Mr. Lecocq gave him the receipt, People's Exhibit 2, for the substance left for analysis; he testified at the preliminary hearing that the receipt was given to agent Banks. Agent Hood also testified at trial that he had seen defendant prior to February 19; however, he testified at preliminary hearing that he had not become acquainted with defendant prior to this date. Agent Hood explained that "seeing someone" and "being acquainted with someone" mean two different things to him.
Daniel Lecocq testified he was in his seventh year with the IBI. He testified as to his training, that he had a Bachelor of Science degree in chemistry, that he had had eight months on-the-job training in drug analysis, and that he had completed 40 hours of training with the Federal Bureau of Narcotics and Dangerous Drugs in Washington, D.C. He first analyzed cocaine in 1970. Mr. Lecocq received People's Exhibit 1 from agent Banks on February 19, 1974. He marked it with a case number at that time. On April 10, 1974, he spent the better part of a day analyzing the substance. The plastic bag was marked with this date and his initials and resealed the same day. His analysis revealed that the substance weighed 26.2 grams and contained cocaine. Mr. Lecocq had no doubt in his mind at the time of trial about his findings. On July 17, 1974, agent Hood retrieved the substance.
On cross-examination, Mr. Lecocq agreed that basically he only conducted tests for the presence of cocaine since this is what the agents told him they suspected it to be. He performed two tests. One was indicative of the presence of cocaine but inconclusive since other substances could also be indicated by the results. The other test was an "infrared spectometry." This test, in Mr. Lecocq's opinion, will reveal what the specific drug tested is. He had to prepare the substance by several processes before this test. The test resulted in a graph which was compared with a graph yielded from the spectometry of a sample of known cocaine. In Mr. Lecocq's opinion, they matched exactly; the substance was cocaine.
Defendant first contends that it was reversible error for the trial court, in ruling on his pretrial motion for dismissal of the information, to find that his due process rights had not been violated by the 262-day delay between the time of the alleged offense and the filing of the information charging him with the offense. He argues that his affidavit which was attached to the motion to dismiss established that he had been actually prejudiced in presenting a defense because of this delay. He further argues that the court was in error in refusing to shift the burden of proving the reasonableness of the delay upon the State because of this affidavit. His affidavit basically stated that he was amenable to arrest at any time during the 262 days, that his whereabouts were known to police authorities throughout this period, and that because of the delay and ...