APPEAL from the Circuit Court of Champaign County; the Hon.
HAROLD L. JENSEN, Judge, presiding.
MR. JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:
Defendant appeals his convictions upon jury verdicts and the several sentences imposed for unlawful possession of cannabis (2 to 6 years); possession of more than 500 grams of cannabis with intent to deliver (2 to 6 years); possession of more than 30 grams of cocaine (4 to 6 years); possession of more than 30 grams of cocaine with intent to deliver (4 to 6 years); possession of MDA (2 to 6 years) and possession of methaqualone (2 to 6 years). He also appeals from the order for the forfeiture of $15,000 seized during the course of a search under warrant.
The prosecution concedes that it was error to enter judgments and impose sentences of possession of marijuana and the possession of cocaine for the reason that they were included offenses as to the convictions upon the respective charges of possession with intent to deliver.
Upon appeal it is argued that the trial court erred in denying defendant's motion to dismiss the counts charging possession of cocaine with intent to deliver; in denying his motions to disclose the name of an informant and to hold an evidentiary hearing upon the veracity of the informant's statements set forth in the complaint for search warrant; and that the trial court erred in ordering the forfeiture of the sum of $15,000 which was seized.
On April 20, 1977, IBI agents, State and municipal police executed a search warrant upon the residence occupied by defendant. The substances seized during such search were identified as the controlled substances upon which the charges were framed.
Defendant filed a motion to dismiss the counts relating to the possession of cocaine asserting that the classification of cocaine in section 401 and 402 of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1977, ch. 56 1/2, pars. 1401, 1402) is arbitrary and unreasonable and that the penalties provided for the possession of cocaine are so arbitrary and unreasonable as to deprive defendant of due process and equal protection of the law under the Constitutions of the United States and the State of Illinois.
At a hearing upon that motion defendant introduced the testimony of Joel Fort, M.D., and Ronald Siegel, a Ph.D. specializing in psychology and psychopharmacology. The record sets out credentials as experts which were accepted by the trial court. The same witnesses also testified as experts in People v. Vernor (1978), 66 Ill. App.3d 152, 383 N.E.2d 699. That opinion has set forth substantially the testimony given in this case, and we conclude that it is unnecessary to reiterate the details already stated in that opinion. The prosecution did not introduce evidence upon the issue or cross-examine the witnesses. Here, it is argued that under the rationale of People v. McCabe (1971), 49 Ill.2d 338, 275 N.E.2d 407, that court must hold the classification of cocaine as a narcotic drug and the penalty imposed for the possession and sale to be unconstitutional for the reason that it denies defendant equal protection of the law.
In McCabe, a statute then in effect classified marijuana as a narcotic drug, imposed a mandatory minimum sentence of 10 years and prohibited any probation where there was a sale. The text of the McCabe opinion suggests an extensive review of the literature and data upon the subject of controlled drugs from which the majority concluded that marijuana did not possess any of the characteristics and effects of true narcotics but rather the nature and quality of a depressant and stimulant drug specifically classified under the Drug Abuse Control Act with provisions for substantially lesser penalties. Upon such conclusion the court held that such classification and sanctions were arbitrary and unreasonable so that there was a deprivation of the equal protection of the law which made the marijuana provision unconstitutional.
The Illinois Controlled Substances Act considered here presents a different statutory structure from that in McCabe. It is true that section 102(aa)(4) (Ill. Rev. Stat. 1977, ch. 56 1/2, par. 1102(aa)(4)) defines cocaine as a "narcotic drug." One finds, however, that in establishing the criteria for the control of cocaine, that substance is classified for purposes of punishment with true narcotics and identified depressant and stimulant drugs. The criteria provided in section 205 of the Act (Ill. Rev. Stat. 1977, ch. 56 1/2, par. 1205), includes:
"(1) the substance has high potential for abuse;
(2) the substance has currently accepted medical use in treatment in the United States, or currently accepted medical use with severe restrictions; and
(3) the abuse of the substance may lead to severe psychological or physiological dependence."
Much of the testimony in behalf of the defendant is directed to the proposition that it is pharmacological error to place cocaine in the category of a narcotic or opiate depressant drug for the reason that it is an alkaloid stimulant which does not establish a physical dependence or addiction. The distinction was recognized in McCabe, and the testimony does not introduce new data.
Defendant's witnesses testified as to their opinions concerning the effect of occasional or "recreational use" as being relatively harmless compared to the effect of narcotic drugs. A reading of the testimony discloses that the witnesses were testifying from conclusions based upon their personal observations, rather than stating an existing consensus of scientific opinion or opinion based upon reasonable medical certainty. Dr. Fort agreed that within the medical scientific community there is disagreement as to whether the use of cocaine is relatively safe or dangerous, and that there is disagreement as to whether or not the use of cocaine brought about hallucinations. It was his opinion that cocaine use was not dangerous and did not produce hallucinations or brain damage, and that cocaine should not be classified with the stimulant amphetamine in the classification. Dr. Siegel testified to an opinion that cocaine should be classified with amphetamines as it presently is, rather than as a narcotic drug. It was his observation that there were some psychological sequelae of irritability and perceptual difficulties following the use of cocaine.
The trial court's memorandum opinion concluded that the issue was not one of "classification" as in McCabe, that the witnesses conceded that there was disagreement among scientific investigators as to the hazards and harm in the use of cocaine and that it was for the legislature rather than the judiciary to determine whether cocaine should be treated as a controlled substance. We agree.
Incident to the opinion in McCabe, the supreme court found that cocaine was a powerful stimulant producing marked physical and mental effects, aggressive behavior, hallucinations or delusions, and psychological dependence. The witness, Siegel, agreed at least in part.
In State v. Erickson (Alas. 1978), 574 P.2d 1, the Supreme Court of Alaska considered a statute which classified cocaine as a narcotic drug. The trial court had dismissed indictments for possession of cocaine for the reason that such classification brought about a deprivation of equal protection. The record contained testimony of some four witnesses and the affidavits of eight others whose opinions were considered as expert. The court's opinion discloses substantial investigation of current literature. That court's summary of the views concerning the qualities of cocaine substantiates the dicta in McCabe and enlarges the range of cocaine's effect by noting that:
"[S]evere cocaine intoxication is self-induced when the intravenous route of administration is used and access to the drug is unlimited." 574 P.2d 1, 17.
That opinion refers to Peterson, History of Cocaine, National Institute on Drug Abuse, Research Monograph 13, Cocaine: 1977, 18 (1977), and states:
"One of the most consistent findings is that prolonged and excessive use is associated with tactile hallucinations of animals, bugs or insects ...