APPEAL from the Circuit Court of Cook County; the Hon. ALBERT
GREEN, Judge, presiding.
MR. JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:
Following a jury trial, defendant, Venancio Cortez, was found guilty of the delivery of more than 30 grams of a controlled substance (Ill. Rev. Stat. 1975, ch. 56 1/2, par. 1401(a)) and was sentenced to 7 to 21 years in the penitentiary. Defendant contends on appeal that (1) the trial court erred when it failed to instruct the jury of his theory of defense, and (2) that the sentence imposed by the trial court was excessive.
Santos Claudio, an agent of the Illinois Bureau of Investigation, testified that on January 27, 1976, during the early part of the afternoon, he and an informant, Mr. Reyes, went to a tavern located on the North Side of Chicago to purchase a quantity of heroin. The agent stated that approximately 10 minutes after they had entered the tavern, the informant introduced him to defendant. The agent told defendant that he was interested in purchasing heroin for distribution in New York. The agent testified that defendant told him he would get him "some good stuff" for $800 an ounce. Defendant then gave Agent Claudio a small tinfoil packet with a small sample of heroin inside. After observing the heroin, the agent told defendant that he would pay $750 an ounce and that he would be willing to buy 8 ounces for $6,000. This amount of heroin would have an estimated "street value" of approximately $100,000.
Defendant then proceeded to make a telephone call after which he told Agent Claudio that he would call him in an hour at the informant's apartment. Agent Claudio proceeded to pick up $6,000 in marked currency and then went to the informant's apartment. While at the informant's apartment, someone called on the telephone and said that the sales transaction was to occur at the Marshall Square Theater that evening at 8 p.m.
Later that evening Agent Claudio went to the Marshall Square Theater located on the South Side of Chicago. Once inside the theater he observed defendant standing in the lobby. Agent Claudio stated that at this time several agents from the department were keeping the premises under surveillance. Agent Claudio then approached defendant and told him that he had $6,000 and that he was ready to "deal." After conversing for a short time, the two men proceeded to go to an unmarked police car where defendant counted the money. Shortly thereafter they went back inside the theater where defendant gave Agent Claudio a bag which contained eight smaller cellophane bags. The agent opened one of the bags and determined the contents to be heroin. Agent Claudio then gave defendant the money and proceeded to walk away. Defendant was subsequently arrested by several other agents. Earl Hernandez, an agent of the Illinois Bureau of Investigation, substantially corroborated Agent Claudio's testimony.
Defendant testified on his own behalf. He stated that on January 27, 1976, he saw Mr. Reyes and Agent Claudio at a tavern located on the North Side of Chicago. Defendant stated that Reyes told him that someone was interested in buying some marijuana. Defendant testified that the agent told him he needed 8 ounces; however, defendant testified that he was afraid to deal with such a large quantity of drugs. He then offered to sell heroin to Agent Claudio for $750 per gram. He also stated that he told his "connection" that he did not want to go through with the transaction because it was too large of a sale. Defendant admitted that he took a bag from a man at the theater but denied knowing the contents of the bag.
On cross-examination, defendant testified that he negotiated a price for the heroin of $750 per ounce. He further stated that the sale would be for 6 or 7 ounces of heroin; that he gave the paper bag containing the heroin to Agent Claudio; and that the agent gave him $6,000. Defendant stated that he had used drugs 3 years ago and that the gun found in his possession was used for self-defense.
The parties stipulated at trial that if George Doub were called to testify he would state that a chemical analysis of the substance taken by Agent Claudio contained 191.7 grams of heroin.
Following the presentation of the evidence, defendant attempted to submit an amended jury instruction which provided as follows:
"To sustain the charge of Delivery of a Controlled Substance, the State must prove the following propositions:
First: That Venacio Cortez knowingly delivered a controlled substance of more than thirty grams;
Second: That the controlled substance contained heroin; and
Third: That the controlled substance delivered weighed more than thirty grams.
Defendant also attempted to submit an alternative verdict form which indicated that the jury could find defendant guilty of delivery of a controlled substance of less than 30 grams. The trial court ...