APPEAL from the Circuit Court of St. Clair County; the Hon.
KENNETH J. JUEN, Judge, presiding.
MR. JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:
Defendant Gilbert Stumpe appeals from his conviction in the Circuit Court of St. Clair County for violation of the Controlled Substances Act.
Defendant was convicted of selling less than 30 grams of a substance containing heroin to an undercover agent of the Illinois Department of Law Enforcement in violation of section 401(d) of the Act (Ill. Rev. Stat. 1977, ch. 56 1/2, par. 1401(d)). The sale was arranged and witnessed by an informant who departed the State following defendant's arrest and remained unavailable at trial. The informant's existence was disclosed by an agent of the Department during defendant's preliminary hearing on January 18, 1978. Subsequent pretrial discovery confirmed his name as Edward Conrad, whose identity was already known to defendant.
Defense counsel moved to dismiss the indictment on grounds that the conduct of the agents of the State in arranging or acquiescing in Conrad's absence deprived him of a fair trial and constituted a denial of due process. The motion was heard and denied on June 22, 1978, after the court concluded from testimony by Department agents that the informant's absence had not been procured or encouraged by the State. Defendant thereupon waived his right to a jury trial. Defendant was convicted and sentenced to four years' imprisonment, after electing to be sentenced under section 5-8-1 of the amended Unified Code of Corrections (Ill. Rev. Stat., 1978 Supp., ch. 38, par. 1005-8-1).
On appeal, defendant contends that the State's actions in causing or acquiescing in the informant's absence deprived him of a fair trial. He also challenges the admission of Conrad's hearsay statement identifying defendant's photograph, the sufficiency of the court's admonishments concerning sentencing alternatives, and the court's consideration of certain sentencing factors.
During the hearing on defendant's motion to dismiss, agent Murrey of the Department of Criminal Investigation testified that he had arranged for Conrad's services in approximately 12 narcotics cases and specifically advised him that he would be required to testify at trial. Agent Murrey's working contact with Conrad terminated in December 1977. When requested by the State's Attorney's office to locate Conrad for defendant's trial, Agent Murrey was unable to do so. He learned that he had left the State, reportedly for Florida, and contacted Florida police authorities, some six months after Conrad's departure, in several unsuccessful attempts to locate him. He also searched for him in East St. Louis and contacted his former acquaintances.
Agent Donald Grimming testified at the hearing that on the day following defendant's arrest, Conrad came to the Department, suitcase in hand, and stated that his life was in danger and that he planned to go to Florida. Because of the arrest of defendant and others, his "cover had been blown." He asked for and received $100 in payment for his services and a ride to the Greyhound bus depot, as he did not own a car. None of the agents witnessed or assisted the ticket purchase. Agent Grimming testified that he instructed Conrad prior to his departure that "he should notify us exactly where he was going to be staying when he got to Florida. He told us when he was preparing to leave he didn't know for sure what he was going to be doing when he got there or where he was going. We instructed him to call us and let us know when and where he was going to be in Florida."
Conrad never renewed contact with the Department of Law Enforcement. Agent Grimming's subsequent efforts to locate Conrad through Florida police authorities proved unsuccessful. He stated that Conrad was placed in a fugitive status in an effort to locate him. During cross-examination the agent testified that the Department did not have the capability of furnishing protection to Conrad for an extended period of time in order to insure his safety and prevent his flight.
The trial judge concluded from the agent's testimony that "the only evidence before this court is that the State did absolutely nothing to conceal this witness" and denied the motion to dismiss.
At trial, Agent Ed Clanton, a former undercover agent for the Department of Criminal Investigation, testified that on July 25, 1977, he and Al Lee, an agent of the United States Bureau of Alcohol, Tobacco and Firearms, met with Conrad for the purpose of arranging a heroin purchase from the defendant. The three men then drove to defendant's home in East St. Louis. Lee remained in the car while Conrad and Agent Clanton went into the house. According to Clanton, the defendant took them into a back upstairs bedroom where they neither saw nor heard any other occupant of the house. After Conrad and defendant negotiated the terms of the purchase, Conrad and Clanton each paid the defendant with marked bills. The defendant then placed seven heroin capsules on a table. Conrad took five of them and handed two to Clanton. After they left defendant's house and joined Lee in the car, Conrad handed his five capsules to Clanton. Agent Lee testified that he saw the capsules change hands between Conrad and Clanton.
On the day after the transaction, Agent Clanton identified defendant from a photograph. Clanton testified that Conrad also examined the photo and identified the defendant. During trial, defense counsel did not object to Clanton's testimony concerning Conrad's identification and in fact cross-examined the agent on the subject, repeating Conrad's statement and pinpointing its occurrence in detail.
Defendant was the sole witness in his own behalf. He denied selling heroin to Conrad or Clanton and denied ever seeing Clanton in his house, although he acknowledged that the agent's description of the house was accurate. He stated that he had known Conrad since 1973, when Conrad had moved into the house briefly during a separation from his wife, and that he and Conrad had been friends.
At the outset, it should be recognized that this case does not involve nondisclosure of an informant's existence or identity, as in People v. Chaney (1976), 63 Ill.2d 216, 347 N.E.2d 138; People v. Lewis (1974), 57 Ill.2d 232, 311 N.E.2d 685; People v. Gibson (1977), 54 Ill. App.3d 898, 370 N.E.2d 262; People v. Perez (1974), 25 Ill. App.3d 371, 323 N.E.2d 399, nor the refusal to supply the address of an informant as in Smith v. Illinois (1968), 390 U.S. 129, 19 L.Ed.2d 956, 88 S.Ct. 748; United States v. Palermo (7th Cir. 1969), 410 F.2d 468; People v. Castro (1973), 10 Ill. App.3d 1078, 295 N.E.2d 538; and People v. Shaw (1969), 117 Ill. App.2d 16, 254 N.E.2d 602; nor does the defendant argue that he was denied his sixth amendment right of confrontation by Conrad's nonproduction at trial (see Cooper v. California (1967), 386 U.S. 58, 17 L.Ed.2d 730, 87 S.Ct. 788.).
Defendant cites two cases as dispositive of the principal assignment of error, that is, the unavailability of the informant at trial. People v. Wilson (1962), 24 Ill.2d 425, 182 N.E.2d 203, and People v. Williams (1968), 40 Ill.2d 367, 240 N.E.2d 580, involved the sale of narcotics arranged or witnessed by one Ruth Killingsworth, a special employee, or informant, of the Federal Bureau of Narcotics, to Officer Inez Anderson, a city of Chicago police officer on loan to the Federal Narcotics Bureau. Prior to trial of both Wilson and Williams, an agent of the Federal Bureau of Narcotics drove Killingsworth to the railroad station, watched her and a male companion purchase tickets and board a train for Fort Worth, Texas. The agent had furnished Killingsworth ...