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People v. Olson





APPEAL from the Circuit Court of McLean County; the Hon. WAYNE C. TOWNLEY, JR., Judge, presiding.


Rehearing denied May 25, 1978.

The two cases discussed in this opinion involve defendant's separate convictions for delivery of less than 30 grams of cocaine, a controlled substance, in violation of section 401(b) of the Illinois Controlled Substances Act. (Ill. Rev. Stat. 1975, ch. 56 1/2, par. 1401(b).) The defendant was sentenced to 5 years' probation subject to a condition of 5 months' periodic imprisonment and to 1 1/2 to 4 1/2 years' imprisonment after separate McLean County juries found him guilty of the two offenses. On appeal, defendant attacks both convictions and the 1 1/2- to 4 1/2-year sentence. Owing to the similarity of the cases, we have on our own motion consolidated them for argument and opinion.

A December 13, 1976, indictment charged defendant with having delivered less than 30 grams of cocaine on July 28, 1976. On February 18, 1977, defendant filed a motion to join this charge with two others for the reason that all three allegedly arose out of the "same comprehensive transaction." In denying the motion for joinder, the court held that the three charges involved separate transactions occurring on June 16, 1976, July 20, 1976, and July 28, 1976.

At the trial for the offense of July 28, 1976, Joseph Bubonic, a supervising criminologist for the Illinois Bureau of Investigation (I.B.I.), testified to the procedures he used to analyze the substance which defendant allegedly delivered. The witness testified that, in his opinion, his analysis of the substance disclosed that it contained cocaine. On cross-examination, the witness testified that he had performed several thousand analyses since 1971 and had performed over 100 cocaine analyses during that period. The witness repeatedly testified that he had no independent recollection of analyzing the substance which the defendant allegedly delivered, although he did have notes which he regularly took at the time of all of his analyses. Those notes formed the factual basis for his testimony. The court, therefore, denied defendant's repeated motions to strike the witness' testimony.

Jerry Deen, an I.B.I. special agent, testified that the defendant sold him a gram of cocaine on July 28, 1976, while both attended the party with Donna Hangen, a Metropolitan Enforcement Group (M.E.G.) undercover agent, who did not testify at the trial. At the party, Deen stated that he was unemployed, that he occasionally functioned as a pimp or procurer of prostitutes, and that Ms. Hangen was one of his prostitutes. The defendant attacked Deen's credibility by producing Michael Bacon who testified that, on July 20, 1976, at another party, he observed Deen and Hangen retire to a bedroom, alone. After approximately 20 or 30 minutes, Bacon observed Hangen, naked, emerge from a bathroom and re-enter the bedroom. Within minutes, Deen and Hangen returned to the party, but Deen was flushed and perspiring. On rebuttal, Deen testified that Hangen was not naked at the party but had removed only her outer clothing in order to maintain her cover as a prostitute for Deen.

At the instructions conference, defendant tendered Illinois Pattern Jury Instructions, Criminal, Nos. 2.01, 17.02, 26.02, 26.05 (1968) (hereinafter cited as IPI Criminal) which define possession as a lesser included offense of delivery of cocaine and which set forth the verdict forms for the possessory offense. Those instructions, however, were refused because the court did not feel that the possessory offense was involved in this case.

Thereafter, the jury found defendant guilty of delivering less than 30 grams of cocaine on July 28, 1976, and the court imposed a sentence of 5 years' probation with the condition that defendant serve a 5-month term of periodic imprisonment at the county jail.

At the trial for the offense of July 20, 1976, Deen again testified in regard to his attendance at the party on that date with M.E.G. Agent Hangen. Deen stated that he purchased .1 gram of cocaine from the defendant during the course of that party. He also stated that he and Hangen shared a lighted marijuana cigarette with others at the party. Instead of actually smoking the cigarette, Deen claimed that the officers blew into the cigarette but did not inhale its smoke. Deen again testified that Hangen removed her outer clothing, a halter top and shorts, and walked out of the bedroom to the bathroom in order to maintain the officer's cover. After returning from the bathroom, both officers left the bedroom door ajar and crawled into bed where Hangen placed some perfume or makeup in Deen's eyes to make them turn red and begin to water. Deen hoped that this would give him the appearance of having used cocaine.

An I.B.I. criminologist, Susan Johns, testified that she analyzed the substance which defendant allegedly sold to Deen. In her opinion, the substance contained cocaine. When the witness testified in regard to the procedures she used in analyzing the substance, she referred to her notes on the original laboratory report. Defendant objected to that testimony, saying that a proper foundation had not been laid and that the testimony was hearsay. That objection was denied as well as many similar objections made whenever the witness was asked to recall the procedures used by her in testing the substance. On cross-examination, the witness stated that she could not independently recall receiving or analyzing the substance allegedly sold by the defendant. Rather, her testimony was based on the fact that she regularly took and preserved notes of her analyses including the analysis of the substance involved in this case. When the witness finished, the court denied defendant's motion to strike her testimony.

Thereafter, the jury found defendant guilty of delivering less than 30 grams of cocaine on July 20, 1976. At a sentencing hearing, evidence of defendant's good character was presented to the court as well as evidence of defendant's other deliveries of cocaine and marijuana. At the conclusion of the hearing, the court imposed a sentence of from 1 1/2 to 4 1/2 years' imprisonment.

On appeal, defendant contends: (1) that the testimony of I.B.I. criminologists Bubonic and Johns should not have been presented to the jury; (2) that the instructions in the trial for the offense of July 28, 1976, were defective; (3) that the court should have granted defendant's motion for joinder of the instant charges with a marijuana charge; and (4) that the court abused its discretion in imposing a 1 1/2- to 4 1/2-year sentence for the offense of July 20, 1976.

• 1 In the interrogation of a witness, counsel may have the witness refresh his memory by referring to a memorandum written by the witness or another person, by looking at a tangible object, or by responding to leading questions where such questions are proper. (Cleary, Illinois Evidence § 6.8, at 88-89 (2d ed. 1963); McCormick, Evidence § 9, at 14-19 (2d ed. 1972); P. Marshall, Lecture on Selected Topics of Evidence, 1972 Report of the Illinois Judicial Conference 120, 126-28; 3 Wigmore, Evidence §§ 758-65, at 125-45 (Chadbourn rev. 1970).) The item used to refresh the witness' recollection must be furnished to opposing counsel on demand, even if the refreshment occurs prior to the time the witness takes the stand. People v. Scott (1963), 29 Ill.2d 97, 111-12, 193 N.E.2d 814.

• 2 If the witness has exhausted his memory and is unable to recall an event even after counsel has attempted to refresh the witness' memory with a document, the document itself may be admissible under the doctrine of past recollection recorded. In such an event, the court should be primarily concerned with the reliability of the writing which the witness must swear is a record of his past recollection. (McCormick, Evidence §§ 299-303, at 712-16 (2d ed. 1972); 3 Wigmore, §§ 734-55, at 77-125 (Chadbourne rev. 1970); Cleary, Illinois Evidence § 17.32, at 299 (2d ed. 1963).) McCormick notes that, while a few courts> hold that the writing itself is not admissible as an exhibit, a majority of courts> hold that the writing is admissible to prove the truth of matters asserted in it. (McCormick, Evidence § 299, at 712-13 (2d ed. 1972).) This majority rule was followed by our supreme court in People v. Harrison (1943), 384 Ill. 201, 206, 51 N.E.2d 172, where the court held: "The rule is that where there has been a writing made by a witness, or made at his direction at the ...

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