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People v. Boucher

OPINION FILED JULY 27, 1978.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

JAMES BOUCHER, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Peoria County; the Hon. CALVIN R. STONE, Judge, presiding.

MR. PRESIDING JUSTICE STENGEL DELIVERED THE OPINION OF THE COURT:

The Peoria County grand jury charged defendant James Boucher with delivery of more than 30 grams of lysergic acid diethlamide (LSD) in violation of section 401(a)(8) of the Controlled Substances Act. (Ill. Rev. Stat. 1975, ch. 56 1/2, par. 1401(a)(8).) Defendant's first trial ended as a mistrial when the jury was unable to reach a verdict. In a second jury trial defendant was convicted and sentenced to 15 to 25 years imprisonment.

On February 26, 1976, Don Middleton called Officer John Stephens, an agent of the Multi-County Narcotics Enforcement Group, and told him he could secure the pound of mescaline *fn1 which Stephens had previously indicated he wished to purchase. Stephens, accompanied by IBI agent Harold Brignadello, met Middleton and Roy Crebo later that same day at a designated location in Morton. After instructing the two officers to remain at that location, Middleton and Crebo, later joined by William Johnson, went to pick up the drugs. The three men testified that they drove in Crebo's auto to Elizabeth Street in Peoria where Johnson entered the rear apartment of a duplex-type building and returned to the auto with a brown paper bag containing one-half pound of white mescaline. Johnson stated he received the half-pound from defendant Boucher and that two other men, Stallings and Magner, were also present in the apartment.

Johnson and his companions returned to the Morton location where Officers Stephens and Brignadello had been joined by Ronald Binkley and Lonnie Kristler. Johnson advised Officer Stephens that his supplier would allow him to bring only one-half pound of mescaline and that he was instructed to obtain the money for the first half and take it to his supplier before the second half-pound could be secured. The agents agreed to the arrangement, but asked to accompany Johnson to get the second half-pound. Johnson refused to take the officers to his supplier, but allowed them to follow him to The Joynt, a Peoria business establishment not far from defendant's apartment. Kristler, Binkley and Middleton accompanied Johnson in Kristler's auto to the Elizabeth Street apartment. Johnson again entered alone and returned to the auto with another half-pound of drugs. Johnson testified he gave Boucher about $540 of the $800 the officers had paid him and kept about $225 for himself. Johnson, Crebo, Middleton, Kristler and Binkley were all arrested after Johnson returned to The Joynt and transferred the second half-pound to Officer Stephens. Johnson took Stephens to the Elizabeth Street apartment where he claimed to have received the drugs, but defendant Boucher was not there. When arrested later that evening Boucher had in his possession $340, including one $20 bill which was marked.

At trial defendant testified that he lived in the front half of an Elizabeth Street duplex which was owned by his parents. He denied having any contact with William Johnson on the date in question and claimed the money he had in his possession when arrested was rent money paid to him earlier that evening by his roommate Charles Closen, and the man who lived in the rear apartment, Butch Stallings.

During cross-examination defendant was asked if he told Jerry La Grow, director of the Peoria MEG unit, that he had expenses of $200 or at least $100 a day. Defendant denied making any such statement. In rebuttal the State called Officer La Grow and the following colloquy took place:

"Q. You did have occasion to question the Defendant, did you not?

A. Yes, sir.

Q. Did you have occasion to question him concerning narcotics?

A. Yes, sir.

Q. Would you tell the ladies and gentlemen of the Jury what you asked him and what he responded with respect to narcotics?

A. I asked him if he used drugs and he told me yes. I asked him how long he had used drugs and he told me about seven years. He told me since he was 14 years old he had been using drugs. I asked him what kind of drugs he used. He said everything, all kinds, marijuana, heroin, cocaine. I asked him if he was addicted to heroin and he said yes. I asked him when the last time was that he had had a fix and he said `What do you mean?' I said, `When was the last time you shot up?' and he said, `Two days ago.' I asked him how much stuff he used and he gave me a dollar figure, and I'm sorry, I can't recall how much it was. I know that it was over $100, but the exact amount I don't recall. I knew I was surprised when he told me the amount because I didn't feel that people in this area — ."

Defense counsel objected to this testimony on the ground that he was surprised by it. The objection was sustained, but only the officer's final statement concerning his surprise over the amount of drugs was ordered stricken from the record. Officers Brignadello and Stephens were recalled by the State, and both testified they were present when defendant made the alleged statement. Each man confirmed the content of the statement as related by La Grow and further indicated that, in addition to themselves and La Grow, two other officers, State Trooper Pollack and IBI Agent Singer, were present when defendant made the alleged statement. Defendant was called in surrebuttal and denied making the statement.

Prior to trial defendant had filed a discovery motion in which he requested the State to furnish him with "Any written or recorded statements and the substance of any oral statements made by the accused * * *, and a list of witnesses to the making [sic] acknowledgment of such statements." The State responded to this request "See Police Reports Attached." The only attached report conceivably relating the substance of defendant's statement was a description and personal data sheet prepared ...


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