APPEAL from the Circuit Court of Cook County; the Hon. PAUL A.
O'MALLEY, Judge, presiding.
MR. JUSTICE WILSON DELIVERED THE OPINION OF THE COURT:
Following a bench trial, defendant was convicted of unlawful delivery of a controlled substance, in violation of section 401(b) of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1977, ch. 56 1/2, par. 1401(b)) and sentenced to a term of not less than one year nor more than three years. On appeal, he presents these issues for review that: (1) he was denied due process by the pre-arrest delay; (2) he was denied a fair trial by the State's failure to comply with discovery; and (3) he was not proven guilty beyond a reasonable doubt. We affirm the trial court.
Prior to trial, defendant filed a motion for discovery requesting all police reports concerning the occurrence and a motion to dismiss the information alleging prejudicial delay between the time of the offense and the day of arrest. At the subsequent hearing on the motion to dismiss the information, defendant testified that on January 7, 1977, the date of the offense, he was residing at 1025 N. California and on July 11, 1977, the date of his arrest, he was still residing there. He indicated that approximately 25 or 28 people lived in the building in January and that some had moved prior to his arrest in July. He specifically referred to one individual, Julio Martinez, who had moved from the building. Further testimony revealed that Martinez and others did not move until after defendant's arrest and that in April 1977, defendant lived at 2524 West Cortez Street with his family.
Defendant stated that on January 7, 1977, from approximately 10:30 a.m. until 4:30 p.m., he was on Thomas and California Avenues in front of a grocery store owned by Denasio Rodriquez. He stated Rodriquez moved out of Chicago before his arrest, but indicated in later testimony that Rodriquez was still in Chicago. He also stated that he saw Raphael Santiago and Carmen Ortiz on the day of the offense and that Santiago lived in Chicago, but he had not seen him since two weeks before his arrest. He further testified as to the specific address Ortiz lived at in Chicago and that he had seen her after his arrest.
The defense called Officer Hector Castro, who stated that his partners made the application for the arrest warrant for defendant on March 28, 1977. Objections were sustained to defense inquiries of the number of times Castro had seen defendant between January 7, 1977, and March 28, 1977, as well as to the number of attempts made to execute the arrest warrant between March 28, 1977, and July 1977. After the hearing, defendant's motion to dismiss on the basis of prejudicial delay was denied with a finding that no substantial prejudice existed.
At trial, defendant waived a jury and the State called Castro as its first witness. He testified that at 7:15 p.m. on January 7, 1977, he was on the corner of Cortez and California when he was approached by an individual known to him as "Nelson," later identified in court as defendant. His assignment at the time was to attempt to make undercover drug purchases and his partners, Officers Joseph Reiter and William Pedersen, provided the backup protection. Defendant asked him if he was "looking to cop," and he responded affirmatively. They agreed on a price of $25 and, thereafter, defendant handed him a clear plastic packet containing a substance; whereupon, he handed him the $25. Castro stated that he proceeded to a prearranged location to meet his partners and handed Reiter the bag that he purchased from defendant. Reiter performed a field test on the bag, which resulted in a positive indication of heroin. Stipulated expert evidence presented by the State established that the substance sold to Castro was in fact heroin. He further testified that prior to January 7, 1977, he had never personally arrested defendant.
During cross-examination, Castro noted that he had prepared a one-page supplemental report regarding defendant's sale of heroin to him. Defense counsel then made a motion to strike his testimony, as he had not received that report pursuant to his discovery motion. Following a brief recess, the State tendered the additional report to defense counsel, which did not have a record division number or time stamp placed on it. Defense counsel renewed his motion to strike Castro's testimony, which was again denied. The court stated it would allow all leeway with respect to utilization of this report and, thereafter, cross-examination continued.
Additional testimony by Castro revealed that he had previously made two undercover drug purchases from defendant prior to January 7, 1977, and that Reiter had testified at a preliminary hearing regarding one of those previous sales on December 17, 1976. Castro did not, however, appear in any court proceedings involving his drug purchases from defendant until the present case. Defendant's motion for a directed verdict was denied.
The defense called Pedersen, who testified that he had arrested defendant previously in October 1976 and had appeared at a prior hearing in December 1976 involving drug sales to Castro on September 21, 1976. Pedersen and Castro were the reporting officers for the report prepared regarding the first arrest, which also indicated that they were the arresting officers. Upon cross-examination, Pedersen denied that Castro made the actual physical arrest on October 28, 1976. He also noted that Castro did not testify at the hearing due to his undercover status.
At the close of Pedersen's testimony, defense counsel informed the court that he had served a subpoena on the Chicago Police Department in order to obtain some reports, but had not yet received them. The court granted a four-day continuance until December 26, 1978. On that day, defense counsel indicated he had received the police reports relating to the October arrest and requested that he be allowed to recall Pedersen. The court granted the request. On recall, Pedersen further testified that Castro was listed as one of the reporting officers in the October arrest report in order to receive credit for his work as an undercover officer.
The defense next called Castro, who testified as to prior sales of drugs to defendant. Castro stated that the police report of September 21, 1976, contained an additional supplemental report. He further testified that he did not actually physically arrest defendant in October, but was listed as an arresting officer on that report because he was instrumental in procuring defendant's arrest through his undercover work.
Defendant argued on his motion for a new trial that the State had still not complied with his subpoena regarding the additional police report of the October 28, 1976, arrest. This motion was denied.
• 1 Defendant argues that the pre-arrest delay was both prejudicial and unnecessary and as such denied him due process. We disagree. This issue was not raised in defendant's motion for a new trial and thus it appears that it is being raised for the first time on appeal. As such, this would ordinarily constitute a waiver of the issue. (People v. Pickett (1973), 54 Ill.2d 280, 296 N.E.2d 856; People v. Whooper (1979), 78 Ill. App.3d 1079, 398 N.E.2d 93.) However, since it was raised in defendant's motion to dismiss, the judge was aware of the alleged error, and we can consider it under Supreme Court Rule 615(a), which states, "Plain errors or defects affecting substantial rights may be noticed although they ...