APPEAL from the Circuit Court of McLean County; the Hon.
LUTHER H. DEARBORN, Judge, presiding.
MR. JUSTICE CRAVEN DELIVERED THE OPINION OF THE COURT:
Defendant was convicted in a bench trial of delivery of a controlled substance in violation of section 401 of the Controlled Substances Act (Ill. Rev. Stat. 1973, ch. 56 1/2, par. 1401) and sentenced from 1 1/2 to 4 1/2 years in prison. He timely appeals.
Defendant's trial began April 13, 1976. The prosecution elicited testimony from numerous witnesses to establish the chain of custody of the delivered substance. Testimony indicated that the white powder weighed one gram and contained cocaine, a controlled substance.
Dennis Garrett testified that on October 28, 1974, he met defendant on Steward Street in Normal, Illinois. Garrett supplied defendant with $50 with which to purchase one gram of cocaine. Defendant exited the vehicle in which he, Garrett, and Ford Conley were riding and returned five minutes later with a plastic bag containing a white powdery substance which he handed to Garrett. Garrett asked defendant what the powder was, and defendant replied, "It's cocaine." Garrett identified defendant as the person who made the delivery.
The State rested. After a two-day continuance, defense counsel called no witnesses on behalf of the defendant. Following argument, the trial court found defendant guilty as charged.
1 Pinchott first argues that he was not proved guilty beyond a reasonable doubt because Dennis Garrett's testimony was incomplete. However, the record clearly shows that Garrett testified to the delivery of the cocaine by the defendant. His lack of recall about extraneous facts of an event occurring more than a year before is a factor which the trial judge weighed in determining credibility and which we do not find to rise to a reasonable and well-founded doubt of guilt. People v. Watkins (1970), 46 Ill.2d 273, 263 N.E.2d 115.
2 Pinchott next contends that Garrett's use of an "admittedly" inaccurate report to refresh his recollection is error. However, defendant's arguments are misplaced since (1) any inaccuracy in the report went only to the number of people present and not to the facts about delivery, and (2) the doctrine of past recollection recorded does not apply when, as noted by the trial judge, Garrett testified from his own memory after refreshing his recollection from the document. (See People v. Jenkins (1973), 10 Ill. App.3d 166, 294 N.E.2d 24.) The report used to refresh Garrett's independent recall does not become evidence itself, in contrast to the situation under the evidentiary theory of past recollection recorded.
3 Pinchott attempts to weaken Garrett's testimony by asserting that the informer failed to testify. Defendant's position, however, is based on People v. Strong (1961), 21 Ill.2d 320, 172 N.E.2d 765. In Strong, however, the defendant's testimony directly contradicted the State's testimony; the informer could have refuted defendant's testimony if it were false. (See also People v. Reese (1966), 34 Ill.2d 77, 213 N.E.2d 526.) Here, defendant did not testify, so there was no direct contradiction on which the trial court could properly assume that the lack of testimony by the informer showed a weakness in the State's case. In addition, defendant's counsel interviewed the informer and could have called him if his testimony was, in fact, helpful to Pinchott. No reasonable doubt arises.
4 Defendant argues that the State failed to prove a chain of custody with the cocaine. The State has the burden of showing sufficient continuity of possession from the time of sale to when the same is offered into evidence so as to negate the possibility of tampering or substitution. (People v. Anthony (1963), 28 Ill.2d 65, 190 N.E.2d 837.) Defendant argues that reasonable doubt exists since Dean Bacon's report indicated he picked up the cocaine on February 12 instead of February 21, as shown on the evidence tag. Each witness identified his or her writing on the evidence tag. The discrepancy in the report was explained by Bacon as a typo ("12" instead of "21"); the explanation is buttressed by Bacon's reliance on the evidence tag date as correct and by the fact that the report shows elsewhere a typing date of February 21. The credibility of the witness was determined by the court and we find no error in the determination of a sufficient chain of custody.
Defendant contends that his right to a fair trial was violated since the State failed to disclose the participation of a confidential informant to the alleged transaction. A recitation of the facts unveils a deliberate failure to disclose. After MEG agent Dennis Garrett received the cocaine, he made out a report which was deliberately drafted as to not disclose the fact that there was a third party present at the transaction; a third party, however, was present. Ford Conley was, at the time of defendant's cocaine transaction, a "confidential informant" for MEG. At the time of the trial, he was a MEG agent no longer working undercover.
Defendant made the usual discovery requests as per our Supreme Court Rules. Garrett's inaccurate report was forwarded by the State's Attorney to defendant. At trial, the State's last witness was Garrett. The State did not plan to call Conley. As soon as Garrett stated that agent Conley was present with defendant and himself at the time of the delivery, defense counsel objected and moved for a mistrial based on the fact that the report was deliberately drafted to delete the presence of "Ford J. Conley." Conley's first name had not been previously mentioned. The prosecutor admitted to the court that MEG deliberately did not put in their reports the existence of confidential informants; the procedure of concealment was of MEG's own design. The stated purpose was to protect the identity and the physical well-being of the informant and to extend his usefulness as an informant. The prosecutor continued that once the State's Attorney found out about this practice, it still took several months of persuasion before the MEG official responsible changed the policy. The prosecutor then reiterated he would not call Agent Conley. The court offered defendant a continuance and ordered the State to make Conley available for interviewing. Defendant's counsel refused the offered continuance, whereupon the court denied the mistrial motion and further examination of Garrett continued. The court, after the prosecution rested, granted defendant's request for a continuance in order to interview Conley. The interview was conducted. Defendant did not call Conley to testify either as his witness or a court's witness.
5 The suppression of evidence favorable to the defendant, irrespective of good or bad faith on the State's part, upon defendant's request is error. (People v. Dixon (1974), 19 Ill. App.3d 683, 312 N.E.2d 390.) The practical result of this devious policy was to hide the fact that an informer was present. To deny defense access to an informer so that defendant can determine whether or not the informer could provide testimony helpful to the defense is to deny defendant his sixth amendment rights. (People v. Lewis (1974), 57 Ill.2d 232, 311 N.E.2d 685; see also People v. Parton (1976), 40 Ill. App.3d 753, 354 N.E.2d 12.) Even though defendant should have known a third person was present, it was not possible from the report to determine that Conley was a MEG informer.
6 Supreme Court Rule 412 (Ill. Rev. Stat. 1975, ch. 110A, par. 412) adequately safeguards informants from the hazards of their profession. This court will not allow State officers or employees to put themselves above the rules of law, especially when their policies run aground of the constitutional rights of any and every citizen accused of criminal conduct. The MEG procedure of deliberate concealment in agent reports is reprehensible. Such a procedure violates the duty upon the State and all its criminal justice agencies to disclose the existence of informants, if any, present at the scene of the alleged crime. Procedures condoning deliberate distortions of properly discoverable evidence can result in retrials of convictions so gained, or outright dismissal of the case. (See dissenting opinion of Judge Smith in People v. Crawford (1969), 114 Ill. App.2d 230, 252 N.E.2d 483.) To paraphrase Judge Smith in Crawford, whenever and wherever the State or its criminal justice agencies are guilty of misconduct, malfeasance or misfeasance in its discovery obligations, the sanctions of the trial court or this court should be swift, certain, and appropriate.
7 However much we condemn the practices revealed in this case, we find that due to the appropriate actions immediately taken by the trial court, along with additional factors outlined below, reversal is not compelled. It is not the function of an appellate court to speculate what use defendant may put material evidence erroneously withheld from him. If this court cannot know the purposes to which defendant would put the undisclosed evidence, it cannot be said such error is harmless. (Parton.) The rule announced in Parton is distinguishable because the error here was revealed at, rather than after, trial. Conley's status was revealed before defendant's case began. (See People v. Chaney (1976), 63 Ill.2d 216, 347 N.E.2d 138.) Defendant chose not to take the offered continuance but did interview Conley before his case began. We distinguish People v. Elston (1977), 46 Ill. App.3d 103, 360 N.E.2d 518, because there was no series of disclosures that, despite the trial court's efforts, prejudiced ...