APPEAL from the Circuit Court of McDonough County; the Hon.
U.S. COLLINS, Judge, presiding.
MR. JUSTICE STENGEL DELIVERED THE OPINION OF THE COURT:
These consolidated appeals involve two convictions of defendant Lonnie Hackett for the unlawful delivery of less than 30 grams of cocaine. As a result of these convictions, defendant was sentenced to a term of imprisonment of three years for each offense with the sentences to run concurrently.
Prior to trial, defendant filed a motion to dismiss, attacking the constitutionality of those sections of the Controlled Substances Act (Ill. Rev. Stat. 1977, ch. 56 1/2) which classify cocaine as a Schedule II narcotic substance on the ground that this classification violates the fifth and fourteenth amendments of the United States Constitution and article I, sections 1 and 2 of the Illinois Constitution of 1970.
At the September 23, 1977, hearing on defendant's motion to dismiss, defendant called Dr. Marian Fischman, a psychologist at the University of Chicago, Billings Hospital, who is an expert in the area of human behavior pharmacology, i.e., the effects of drugs on behavior. Specifically, since 1974 her work has involved cocaine research under a grant from the United States government. She testified in considerable detail to the nature and effects of various classes of mood-altering drugs, particularly cocaine which is classified as a stimulant.
She stated that cocaine is not a "narcotic drug" from either a medical or a pharmacological standpoint, repeated use does not lead to physical dependence, and the user does not experience withdrawal syndrome. Cocaine is most commonly ingested by sniffing "lines" in powder form through the nose with the effect lasting 40 to 60 minutes, and it also can be taken by intravenous injection with the effect lasting 20 to 30 minutes. Ingestion of cocaine causes people to be more active, restless, talkative, friendly, and even euphoric. It causes an increase in blood pressure, heart beat, respiration, and body temperature, and excessive amounts can be lethal. There is no firm evidence that cocaine use alone can cause psychosis. On the basis of her interviews with users, Dr. Fischman stated that cocaine is used recreationally in the United States, primarily as a group activity by middle class people, and it is very expensive with one gram costing $120. One gram is the equivalent of about 30 "lines." Cocaine is also used medically as a local anesthetic for eye and throat surgery. On the basis of her information she believes that cocaine users are not engaged in more criminal activity, other than illegal drug transactions, than are nonusers, and that most cocaine users also use other drugs, including alcohol, marijuana, or both. Users develop a tolerance with repeated use, thus requiring ever larger doses to get the desired effect.
After the State's Attorney's cross-examination, counsel for co-defendant Gregory Bright asked Dr. Fischman to respond to a statement regarding the effects of cocaine from People v. McCabe (1971), 49 Ill.2d 338, 275 N.E.2d 407, a case in which the supreme court ruled that the classification of marijuana under the Narcotic Drug Act was unconstitutional. The statement was as follows:
"Cocaine, which is placed with marijuana and the opiates in the Narcotic Drug Act, is a powerful stimulant, whereas the morphine-type drugs have a depressing action. Too, cocaine is further unlike the opiates in that it does not have effects of tolerance or physical dependence and abstention does not cause acute withdrawal symptoms. However, because of its potent nature, it induces intense physical and mental excitation and a marked reduction in normal inhibitions which often results in aggressive and even violent behavior. Intense hallucinations and paranoid delusions are common and, because of this, cocaine users frequently attempt to dilute the experience with a depressant such as heroin or morphine." (49 Ill.2d 338, 343-44, 275 N.E.2d 407, 410.)
Dr. Fischman disagreed with several factors contained in the statement. She first disagreed with the statement that "cocaine is unlike the opiates in that it does not have effects of tolerance." Rather, Dr. Fischman reiterated that research is showing that tolerance development does occur with the repeated administration of cocaine. Secondly, although Dr. Fischman agreed that cocaine does induce intense physical and mental excitation, she disagreed with the statement in McCabe that cocaine causes "a marked reduction in normal inhibitions which often results in aggressive and even violent behavior and intense hallucinations and paranoid delusions are common," adding that there is no data to show that cocaine induces a marked reduction in normal inhibitions or causes violent behavior. She also stated that while it is possible that cocaine may cause psychosis, there had been no proof of cocaine psychosis. Finally, although she agreed that cocaine users do sometimes take heroin, she indicated that such combined use is not frequent since most cocaine users take the drug by nasal inhalation while those cocaine users who use heroin inject the drug intravenously.
Following additional redirect examination of Dr. Fischman by defendant's counsel, defendant introduced into evidence three affidavits from persons involved in cocaine research which corroborated Dr. Fischman's testimony. Also introduced into evidence was the National Institute on Drug Abuse Research, Monograph 13.
Neither the co-defendant, Gregory Bright, nor the State introduced any additional evidence. After hearing arguments on the motion, the trial court took the matter under advisement, and on December 21, 1977, the court issued a letter of opinion finding that cocaine was not a narcotic drug, but denying defendant's motion to dismiss on the basis of People v. McCabe (1971), 49 Ill.2d 338, 275 N.E.2d 407, and People v. Villanueva (1977), 46 Ill. App.3d 826, 361 N.E.2d 357.
At the sentencing hearing May 10, 1978, the court inquired whether defendant elected to be sentenced under the indeterminate sentencing provisions of the law in effect prior to February 1, 1978, or the determinate sentencing provisions of the law presently in effect. Defense counsel was asked if he had explained the differences between the two sentencing provisions to defendant, and counsel responded that he had done so. After defendant elected to be sentenced under the new law, he was appropriately sentenced.
Subsequently, defendant filed a motion in arrest of judgment which alleged it was error for the trial court to deny the motion to dismiss. Based on the trial court's prior letter of opinion denying the motion to dismiss, the trial court also denied the motion in arrest of judgment.
Two issues are raised by defendant, the first of which is whether the classification of cocaine as a Schedule II narcotic substance results in an unconstitutionally arbitrary classification. While it is true that the Controlled Substances Act defines the term "narcotic drug" so as to include cocaine (Ill. Rev. Stat. 1977, ch. 56 1/2, par. 1102(aa)), the inclusion of cocaine in the list of Schedule II drugs does not appear to result from this erroneous definition. A number of controlled substances are included in the list of Schedule II drugs which are not included in the definition of the term "narcotic drug," including amphetamines. Ill. Rev. Stat. 1977, ch. 56 1/2, par. 1206.
In defining the offense of delivery of a controlled substance, section 401 (a)(2) of the Controlled Substances Act classifies 30 grams or more of a substance containing cocaine as a Class 1 felony (Ill. Rev. Stat. 1977, ch. 56 1/2, par. ...