APPEAL from the Circuit Court of Perry County; the Hon. ROBERT
BASTIEN, Judge, presiding.
MR. JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:
Defendant, Charles L. Black, appeals from a judgment of conviction for unlawful delivery of a controlled substance entered in the Circuit Court of Perry County following a bench trial. On appeal, defendant contends that he was not proved guilty of unlawful delivery of a controlled substance beyond a reasonable doubt and further contends that the trial court erred in refusing to allow defendant to cross-examine a police officer about a statement made to him by a third party, which statement was against the declarant's penal interest and tended to exculpate defendant.
Jerry Woolsey, a special investigator for the Perry County sheriff's office at the time of the events in question, testified that he was called to the scene of an accident which had occurred west of Pinckneyville. There he found a woman, Mary Kay Olson, lying unconscious in the road and defendant, who appeared "very distraught." Apparently, Ms. Olson, who died a day after the accident and to whom defendant was charged with delivering the substances, had jumped from defendant's van while he was driving. In response to the investigator's questioning whether Ms. Olson was under the influence of alcohol or drugs, defendant replied that she had taken "some orange microdots," a street name for LSD, the night before. Defendant added that he had given her the drug the previous evening at a party held at his residence. In attendance at the party were Mary Kay Olson and her sister, Jane Olson. Jane had asked defendant "for some hits of orange microdots." Defendant refused to sell the drug but gave her "four hits" in exchange for "some whiskey."
On cross-examination, Officer Woolsey testified that on the day following the accident defendant gave a statement to the police. Woolsey recalled that in the statement defendant admitted having a total of 13 hits of which 6 were kept by defendant, 4 were given to Jane, 2 were distributed to Tammy, and one was given to Lynn. Nowhere in the statement, according to Woolsey, did it state that defendant gave any LSD to Mary Kay.
In response to questioning by the court, Woolsey again testified that at the scene of the accident he asked defendant whether Mary Kay had taken any alcohol or drugs. According to Woolsey, defendant replied: "Yes, LSD, or orange microdots at a party at my house last night." Then in reply to the court's question "Is that all he said. Did he make any statement as to delivery by himself?" Woolsey stated, "That's all he said, your Honor." Following a short redirect examination, the court again questioned the witness. At this time, however, Woolsey again testified that defendant had told him at the scene of the accident that he had given Mary Kay "orange microdots." On re-cross-examination, Woolsey apparently clarified his testimony, stating that at the time of the accident defendant said that he had distributed "orange microdots" to Mary Kay. Woolsey added that in the statement made to police a day after the incident defendant made no claim of having given the drug to the deceased and that the statement tended to prove that "if anyone was given LSD, it was Jane Olson."
Deputy Sheriff Tim Russell and Frank Mangin, a deputy sheriff at the time of defendant's arrest, were present when defendant made his statement. Their testimony concerning the statement made by defendant to police substantially corroborated the testimony of Woolsey. Russell indicated that defendant never stated during the course of making the statement that he had given LSD to the deceased, while Mangin testified that he could not recall defendant making any assertion that he had delivered such substances to her. We note, however, that during the redirect examination of Mangin, the State read the following portion of the recorded statement:
"Woolsey: * * * Jane Olsen initiated the conversation about buying.
Black: Yeah, Yeah. I told her I won't sell it. I will give it to her, but nobody else was doing acid that night except us three that I know of.
Woolsey: When you say three, who is that?
Black: Me, Jane and [Mary] Kay.
Black: I didn't give nobody else no acid or anything, just them."
Charles Louis testified that he had attended the party at defendant's home on the evening prior to the accident. He stated that he did not hear defendant and the deceased discussing "orange microdots" but remembered a conversation between defendant and Jane Olson concerning a trade of LSD for some whiskey.
When Louis went to the county jail to give a statement to the police he met Jane Olson as she was leaving the building. Jane told him: "Now I have to go home and tell mom and dad that I gave Jane the acid." Louis was apparently referring to ...