APPEAL from the Circuit Court of White County; the Hon. PHILIP
B. BENEFIEL, Judge, presiding.
MR. JUSTICE JONES DELIVERED THE OPINION OF THE COURT:
After a jury trial in the circuit court of White County, defendant, Brad Jones, was found guilty of several offenses, including calculated criminal cannabis conspiracy (Ill. Rev. Stat. 1977, ch. 56 1/2, par. 709(b)), unlawful possession of more than 500 grams of cannabis with intent to deliver to a person under 18 years of age (Ill. Rev. Stat. 1977, ch. 56 1/2, pars. 705(e), 707(a)), unlawful delivery of more than 30 but not more than 500 grams of cannabis to a person under 18 years of age (Ill. Rev. Stat. 1977, ch. 56 1/2, pars. 705(d), 707(a)), and unlawful possession of more than 500 grams of cannabis (Ill. Rev. Stat. 1977, ch. 56 1/2, par. 704(e)). Defendant was thereafter sentenced on these named offenses to four concurrent terms of imprisonment all of which were one to three years except that for possession with intent to deliver which was one to five years.
The defendant raises the following issues on appeal: (1) whether procedural irregularities deprived the trial court of jurisdiction to proceed to judgment in this case; (2) whether defendant was proved guilty beyond a reasonable doubt of calculated criminal cannabis conspiracy and unlawful delivery of more than 30 grams but not more than 500 grams of cannabis to Jim Watkins; (3) whether the court erred in refusing the issues instructions tendered by defendant; (4) whether the court erred in denying defendant's motion to dismiss the count charging him with unlawful possession of more than 500 grams of cannabis with intent to deliver to a person under 18 years of age; (5) whether the court erred in entering judgments and sentences on both the possession of cannabis and possession of cannabis with intent to deliver charges and both the delivery of cannabis and calculated criminal cannabis conspiracy charges; (6) whether the elements of the enhanced penalty provision (Ill. Rev. Stat. 1977, ch. 56 1/2, par. 707(a)) were sufficiently proved with respect to the delivery of cannabis charge; and (7) whether the court abused its discretion in denying defendant probation.
Louis Vas, an alleged co-conspirator of defendant, testified as follows. At the time of trial he was residing in the city-county jail serving six months periodic confinement because of his conviction of the crime of calculated criminal cannabis conspiracy after a plea of guilty. Involved in the conspiracy with him were Brad Jones, Kathi Jones, and Keith Wells. He was to supply $800 to buy six pounds of cannabis. He and Jones were to get a half pound each from it as profit. They talked about this arrangement the first time on the 6th of March, 1977, and again the weekend of the 12th of March. He was to supply the money and Jones was to sell the cannabis. On March 13, 1977, he talked with Keith Wells and Dennis Odell. Vas was to put up the money and Jones and Wells were to make the other arrangements. The price was set at $135 per pound. On Monday, March 14, he went to the Joneses' carpet store in Carmi and delivered $800 in cash. He, Brad Jones and Kathi Jones were present. He gave the money to Kathi Jones. There was no discussion at this time about what the $800 was for.
That evening, March 14, he went to Brad and Kathi Jones' house in Brownsville and waited with Brad and Kathi until 5:30 or 6 a.m. the next morning for the cannabis to come in. Jones had told him it would come in that evening. The cannabis did not come in that night, but Jones informed him at 8:30 a.m., the next day, March 15, that the cannabis had come in; that Jones had it stashed and that he would let him try some. He met Jones later that day and Jones gave him a marijuana cigarette which Jones told him came from that shipment. Defense counsel objected to this testimony, but the evidence was admitted as being relevant to the charge of conspiracy. Present during this incident were Vas, Jones and Dennis Hite. Vas smoked the cigarette. In his opinion, the cigarette contained marijuana. Its texture, color and composition resembled marijuana and he received a "high" from smoking it. As foundation for this opinion testimony, the prosecutor elicited the following information from Vas. He had smoked marijuana regularly since 1969, or eight years, and was familiar with the "high" one gets from smoking it as well as how it looks and smells.
The next time Vas and Jones got together was on the 15th of March at Brad Jones' house. Vas, Brad Jones, Kathi Jones and Keith Wells were present. There were about six pounds of marijuana lying around a chest in the living room. It was in one-pound bricks. They all smoked some of it. They also cleaned it, bagged it, and got two pounds ready for sale. They used a gram scales and tried to put an ounce in each sandwich bag. After they smoked some of the marijuana, Vas stated that it was fair stuff for being Mexican. Defendant agreed with this characterization. In Vas' opinion, the substance was marijuana. It was agreed that the greatest part of the marijuana, that which was for sale, would be kept at the Jones residence.
On Tuesday, March 22, Vas received $300 cash from Brad Jones, on Wednesday, the 23rd, $150 in cash, and on the 25th, the day "we" got arrested, he received $300. It was agreed this cannabis would be sold for $50 a quarter. A quarter is four ounces. This agreement was made on the 16th of March. Dennis Hite was present. The remaining cannabis was broken down by Brad Jones and Vas on March 23 and put in a garbage bag.
Mark Hall, a White County deputy sheriff testified that on March 24, 1977, he participated in "an investigation trying to set up a buy involving one Jim Watkins." Over objection he testified that around 5 p.m. he told Watkins to purchase some marijuana. Watkins later delivered eight or nine packages of marijuana to him. He labeled it and turned it over to the custody of the sheriff. The sheriff put it in the evidence locker for security and that was the last he saw of it.
Brenda Carlton, age 19, testified for the defense that she was in a car with Jim Watkins on March 24, 1977, when Mark Hall and another police officer picked them up and took them to the police station. Watkins went with Hall and she went with the other officer. She was questioned, searched, and then let go. She did not say what happened to Watkins.
Dennis Hite testified for the State about a marijuana transaction which involved Brad Jones and 17-year-old Jim Watkins. Hite said that Watkins asked about buying a half-pound of marijuana on the morning of March 24, 1977, and that later that same day he and Watkins went to the Jones residence to make a purchase. Hite and Watkins met Brad Jones on the way to the Jones house and Hite informed defendant that he was with a "boy" who wanted to buy some marijuana. Defendant told Hite to go to his house and wait for his and Kathi's return from town. When Brad and Kathi Jones arrived at the house, Hite went inside to pick up the marijuana while Watkins remained in the car. Hite gave defendant $110 he had received from Watkins and took a half-pound of marijuana which defendant removed from a garbage bag in the living room out to Watkins who then left. Hite testified that he had made a number of similar purchases from defendant during the week preceding March 24. He also testified that he had been convicted of unlawful delivery of cannabis for the sale to Jim Watkins on March 24 and that he was presently serving a prison sentence for that offense.
Hite, over the objection of the defendant, testified that the substance he obtained from Jones on March 24 was in fact marijuana. He said that he had used marijuana for "six months to a year." He had smelled it; he had smoked it, and he had seen what it looked like. This particular marijuana was in sandwich-like form. He did not smell it or smoke it. He described it as green and leafy. The court held that this testimony properly qualified Hite to testify that the substance obtained from Jones was marijuana.
On March 25, 1977, warrants for the arrest of Brad and Kathi Jones and for a search of the Jones residence were issued by a circuit judge upon the complaint of the chief deputy sheriff of White County. The arrest warrant charged defendant with unlawful delivery of cannabis. These warrants were based on the delivery of marijuana to Jim Watkins on March 24, 1977. On March 25, Illinois State Policeman Harry Kijonka and White County Sheriff's Deputies Lloyd Carter, Mary Vaupel, and Mark Hall went to the Jones residence to execute the warrants. Hall testified that he first encountered defendant in the backyard of the Jones residence. Jones had a large paper bag in his hand which appeared to contain marijuana. Defendant was asked to go inside the house where both he and his wife were arrested. Trooper Kijonka immediately read defendant and his wife the Miranda warnings from a departmental form. The defendant indicated that he understood his rights. Approximately 1 1/2 hours later, or 7:15 p.m., after defendant had been taken to jail and processed, he indicated that he was willing to continue talking to trooper Kijonka. He further indicated that he would be willing to give a statement to the State's Attorney. The State's Attorney was then located and after he readvised defendant of his constitutional rights, defendant answered some questions. Kijonka testified that defendant admitted the sale of cannabis to Hite. Defendant also stated that he was free to sell cannabis for more than the agreed upon $50 per quarter pound and pocket the difference as well as to "pinch some off the top" of quantities sold.
Andrew Wist, an Illinois Bureau of Investigation criminalist, offered testimony as to the results of scientific tests which he performed on the substances which were seized from the Jones residence pursuant to the search warrant. He performed two procedures on the substances which when considered together will indicate whether the substance tested is cannabis, a microscopic examination and the Duquenois-Levine color test. The material in the bag that defendant was discovered holding was found to contain 748.6 grams of a substance containing cannabis. Material found in several other items seized at the residence, weighing a total of 117.5 grams, was also found to be marijuana or cannabis. No testimony was offered concerning the marijuana delivered to Watkins nor was it placed into evidence.
The first issue is whether procedural irregularities deprived the trial court of jurisdiction to proceed to judgment in this case. The defendant's arguments with respect to this "issue" are rambling, incoherent and incomprehensible. Nevertheless, we have independently reviewed the record on appeal. Since we cannot discern any defects in the manner by which defendant was brought to trial in this case, we find this argument to be wholly without merit.
Defendant's next contention is that he was not proved guilty beyond a reasonable doubt of calculated criminal cannabis conspiracy and unlawful delivery of more than 30 but not more than 500 grams of cannabis to Jim Watkins.
Under the facts of this case, these two offenses are closely tied to one another. Section 9(b) of the Cannabis Control Act (Ill. Rev. Stat. 1977, ch. 56 1/2, par. 709(b)) provides that:
"* * * [A] person engages in a calculated criminal cannabis conspiracy when:
(1) he violates Section 4(d), 4(e), 5(d) or 5(e) of this Act; and
(2) such violation is part of a conspiracy undertaken or carried on with 2 or more other persons; and
(3) he obtains anything of value greater than $500 from, or organizes directs or finances such violation or conspiracy."
As can be seen, one element of the charge of cannabis conspiracy is the violation of section 4(d) or 5(d) of the Act (Ill. Rev. Stat. 1977, ch. 56 1/2, pars. 704(d) or 705(d)). In the instant case, this element was alleged to be a violation of section 5(d) involving the delivery of between 30 and 500 grams of cannabis to Jim Watkins. Thus, the cannabis conspiracy charge could not have been proved beyond a reasonable doubt unless the delivery charge was also proved. We, therefore, shall address the arguments as to the delivery charge first.
1 Defendant's first argument is that he was not proved guilty of this charge since no scientific evidence was presented to establish that the substance delivered to Watkins was cannabis. We disagree.
Although it is true that no expert testimony was presented by the IBI criminalist to establish that the particular substance delivered to Watkins was cannabis, it is well established that circumstantial evidence can be used to establish that a substance contains cannabis (People v. Park (1978), 72 Ill.2d 203, 380 N.E.2d 795; People v. Robinson (1958), 14 Ill.2d 325, 153 N.E.2d 65), and that this can be by the admission of defendant if there is substantial, independent corroboration of the defendant's alleged admission of the elements of the corpus delicti (People v. Park; People v. Hubbard (1967), 38 Ill.2d 104, 230 N.E.2d 220). This case meets these requirements.
The testimony of trooper Kijonka established that defendant admitted that the substance he sold Watkins through Hite was marijuana. This admission in itself may be accorded great weight since there was substantial evidence that defendant had a means of knowing that the substance in question contained cannabis. (People v. Park.) The evidence revealed that defendant smoked some of the substance which was being sold on several occasions and that after smoking some of it during the first night on ...