APPEAL from the Circuit Court of Cook County; the Hon. LOUIS
A. WEXLER, Judge, presiding.
MR. JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:
Rehearing denied June 28, 1979.
On September 18, 1974, the Cook County grand jury indicted Frank McGee, the defendant, and Lucian Holman for delivery of a controlled substance (Ill. Rev. Stat. 1973, ch. 56 1/2, par. 1401(a)(1)), possession of a controlled substance (Ill. Rev. Stat. 1973, ch. 56 1/2, par. 1402(a)(1)), and calculated criminal drug conspiracy (Ill. Rev. Stat. 1973, ch. 56 1/2, par. 1405(a)). Prior to defendant McGee's trial, Lucian Holman pleaded guilty to possession of a controlled substance and was sentenced from 4 to 6 years in the Illinois State Penitentiary. Defendant was tried September 21, 1976, in the circuit court of Cook County before the Honorable Louis A. Wexler. Judge Wexler granted defendant's motion for a directed verdict on the calculated criminal drug conspiracy count after presentation of the State's case. The jury found him guilty of delivery of a controlled substance and not guilty of possession of a controlled substance. On November 9, 1976, Judge Wexler denied defendant's post-trial motions for arrest of judgment, to vacate and set aside the verdict, and for a new trial. After a hearing in aggravation and mitigation, the trial court sentenced defendant to serve 4 to 12 years in the Illinois State Penitentiary. This appeal is from his conviction as well as the sentence he received.
Jerome Johnson, a special agent assigned to the narcotics section of the Illinois Bureau of Investigation (I.B.I.), testified as the State's chief witness. He related that on January 17, 1974, at 12:14 in the afternoon, he and a confidential source, or informer, Johnnie West (a/k/a Lonnie Branch; hereinafter Branch), went to defendant's home at 5418 West Flournoy in Chicago to complete a drug transaction. They remained there until about 3 a.m. on January 18. They were admitted into the house by Lucian Holman who introduced them to defendant. Agent Johnson first stated that he unzipped and handed a black brief case containing $6500 in prerecorded funds to Holman, but then corrected himself to say that he handed the money to defendant, who in turn handed it to Holman and told him to count it. After counting the money, Holman told Johnson he would return in one hour with the heroin. He left the house and did not return until 3 the next morning with a woman.
Defendant invited Holman, Branch and Johnson to the basement. Once they were in the basement, defendant instructed Holman to go behind the bar and bring out a silver tray and sifter. Holman did so and then removed a package from his pocket and unwrapped it. Johnson commented that the package did not look like it contained 4 ounces. Defendant disagreed and took a small portion of the substance from the package, put it in the sifter above the tray and used a spoon to crush it, telling Johnson to process the heroin in this manner. Defendant then asked Holman to rewrap the package and give it to Johnson.
Johnson and Branch left defendant's house at approximately 3:10 a.m. and drove to the Chicago I.B.I. office. He performed a field test on the substance and found it contained opianus.
Agent Johnson said he saw Branch after the transaction in question but did not know his whereabouts at the time of trial.
Steven Torres, a special agent for the I.B.I. narcotics division, testified that he was assigned to the surveillance of defendant's house on the dates in question. His surveillance of the house began at 12:04 p.m. At 12:15 p.m., Agent Johnson and Branch arrived at defendant's house. Holman left 20 minutes later. Torres continued his surveillance until 2:30 the next morning, taking a break from 11:50 p.m. to 12:30 a.m. During the time he watched the house, he saw at least three other people enter the defendant's residence.
Louis Nixon testified that he was a special agent assigned to the intelligence and narcotics division of the I.B.I. He stated that during his surveillance on January 18, 1974, between 2:40 and 2:45 a.m., he observed a grey car pull up in front of defendant's house. Two individuals left the car and entered the house. About 30 minutes later, Agent Johnson and Branch drove away in a car.
Allen B. Clark, a forensic chemist with the United States Justice Department, testified as the State's final witness. He stated that he performed a chemical analysis on laboratory exhibit No. 15932, which consisted of a manila block sealed envelope with four plastic bags. One of the plastic bags contained a brown powder weighing 93.5 grams. His findings indicated that 13.2 per cent, or 12.3 grams, of the 93.5 grams of the brown powder was heroin. He noted, "The sample in question was definitely heroin."
Lucian Holman was the first witness for the defense. He said he knew Branch and saw him at defendant's house on January 17, 1974. According to Holman, defendant was not present when the conversation occurred in the living room regarding the purchase of the narcotics. Branch gave Holman $6500 to purchase some heroin. Holman took the money into the bedroom to count it. He and his girl friend, Geraldine Tolliver, left and returned with the heroin at 3 a.m. Branch, Johnson, Tolliver and Holman went to the basement. Holman said he took the heroin from Tolliver and gave it to Branch. Branch gave it to Johnson to examine. After expressing an objection about the heroin, Johnson inspected it in a pan and accepted it. Holman cleaned up the basement and left the house with Tolliver.
Fred Davis, a friend of defendant since 1970 or 1971, testified that he arrived at defendant's house on the night in question at 6:30 or 7 p.m. Davis knew Branch prior to January 1974 and had played cards at the McGee home a few times. Branch introduced him to Agent Johnson. That night, Davis stated he played cards from about 7:30 or 8 p.m. until 5 a.m. with Dexter Wilson, Jim Douglas, Rose McGee (defendant's wife) and Willean Hachett. During the evening, Branch slept on the couch, Johnson sat in the dining room, and defendant was in the bedroom. Davis saw Holman and Tolliver enter the house after 2 a.m. and walk through the dining room with Branch and Johnson. He saw Branch and Johnson walk back through the room and leave the house, but did not see Holman and Tolliver again that evening.
Davis said that after defendant's arrest, defendant's wife called him and related details about the incident to refresh his memory.
Willean Hachett, a friend of defendant for 10 years, testified to substantially the same facts as did Davis. She played cards at the McGee home on January 17, 1974. She saw Holman and a woman enter the house at about 3 a.m. and go to the basement with Branch and Johnson where they remained for about 10 or 15 minutes. Defendant retired to his bedroom at about midnight or 1 a.m. She did not see him leave the bedroom. Defendant's wife called her about 9 months after the night in question; she said ...