APPEAL from the Circuit Court of Will County; the Hon. CHARLES
P. CONNOR, Judge, presiding.
MR. JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:
In this appeal by the defendant, Grover Marion, from his conviction for the unlawful possession of less than 30 grams of a substance containing L.S.D., three issues are raised. Initially, we can summarily dispose of the question of the constitutionality of the recoupment statute, which was the authority upon which the trial court based its order that the defendant's bail bond deposit be applied to repay the county for the expenses incurred by the public defender in representing the defendant. The Illinois Supreme Court has already determined the statute to be unconstitutional. People v. Cook (1980), 81 Ill.2d 176, 407 N.E.2d 56.
The remaining two issues are whether the defendant was proved guilty beyond a reasonable doubt and whether the trial court erred by refusing to give both paragraphs of IPI Criminal No. 3.02, an instruction on the use of circumstantial evidence, as tendered by the defendant. To determine each of these issues, a review of the facts educed at the trial must be had.
The State's first witness was Officer Ray Kapsch. Kapsch testified that on September 26, 1978, he was on patrol looking for a hit and run vehicle when he observed two cars, one red and one light brown or yellow, which were parked so as to block the street. Over his loudspeaker, Kapsch told the drivers to move or be ticketed. The two cars left, and Kapsch continued on patrol. When he returned several minutes later, the two cars had returned and were again blocking the street. The defendant was standing alongside the light colored car leaning into the open window on the driver's side.
As Kapsch pulled alongside the vehicle he observed that the defendant had his left arm extended into the vehicle with his hand open in front of the face of the driver seated within. Kapsch also observed what appeared to be a packet inside the defendant's palm. At that time the defendant turned and faced Kapsch and clenched his fist. Kapsch stopped his car and motioned for the defendant to stay where he was. The defendant began to walk toward the rear of the squad car. As he did so, Kapsch kept his eye on the defendant and saw the defendant's left shoulder and arm move. Kapsch exited his squad car and told the defendant to put his hands on the car and not to move. As Kapsch went to the front of the squad car, the defendant moved toward the back. The two men went back and forth in this manner three or four times. Finally, Kapsch went to the rear of the squad car to check the area where he thought the defendant had thrown something. Underneath the squad car, just to the rear of the right rear tire, Kapsch observed a piece of cellophane which contained several green tablets. The cellophane was clear and did not appear dirty. Kapsch picked it up and put it in his pocket.
At this time the defendant began to walk away from the scene very fast. Kapsch told the defendant to "go ahead," that he would "see him later."
Kapsch identified People's exhibit No. 1 as the cellophane packet with the green tablets he had found on September 26, 1978. Kapsch stated that from the time he arrived until he picked up the cellophane there was no one close to the two cars other than the defendant and the two people seated in the light colored car. However, Kapsch stated, "there could have been people in the immediate area."
On cross-examination Kapsch acknowledged that he could not tell anything about the packet he observed in the defendant's hand as he leaned into the light-colored vehicle, other than that it was clear, and about one inch in size. Kapsch could not state whether it was made of cellophane. Kapsch also acknowledged that when the defendant moved his left arm and shoulder he could not see the defendant's hand, but could only see defendant's arm from the elbow to the biceps area.
Finally, Kapsch acknowledged on cross-examination that he had previously testified in a manner inconsistent with his trial testimony in several respects. Kapsch had previously testified that he discovered the cellophane packet behind the rear wheel of the light-colored car, not the squad car, and that he had exited his squad car and had gone back and forth several times with the defendant before he saw the defendant make the gesture with his arm. In addition, he had previously testified that the defendant's gesture was to move his shoulder backwards, which was the opposite direction Kapsch testified to at trial. On redirect examination, however, Kapsch stated that he had corrected his prior testimony as to the location of the packet and the timing of the defendant's gesture before leaving the witness stand on the date of his prior testimony.
The State next presented the testimony of a chemist who identified the green tablets located in People's exhibit No. 1 as being .17 grams of a substance containing L.S.D. Following presentation of stipulations on the chain of evidence the State rested its case-in-chief.
For the defense, Mr. Leonard King testified that he was employed by the Elgin, Joliet and Eastern Railroad and also taught karate. King had known the defendant practically all his life.
On September 26, 1978, King had a conversation with the defendant in the vicinity of Englewood and Robin Lane. The defendant walked over to King's car and leaned into it. King did not see anything in the defendant's hands, but as they talked a Joliet police officer arrived on the scene.
King stated that he saw the officer pick an object up from in front of King's car, but that the defendant had been standing at the side of King's car when this occurred. King also stated that when the defendant walked away he went across the street but stayed in the area. King waited to see if the officer wanted him for any reason. When the officer did not say anything King left and returned to work.
On cross-examination King acknowledged that he spoke with Officer Stewart on October 31, 1978. King denied, however, that he had told Stewart that the defendant had an object in his hand or that when the squad car arrived the defendant acted in a paranoid manner, or that the police officer picked an object ...