APPEAL from the Circuit Court of Cook County; the Hon. JEROME
T. BURKE, Judge, presiding.
MR. JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:
Rehearing denied September 22, 1981.
Defendants James Phelan and Brian Bowes together were charged with two counts of delivery of a controlled substance, cocaine (Ill. Rev. Stat. 1979, ch. 56 1/2, pars. 1401(a)(2), (b)). Phelan individually was charged with one count each of delivery and possession of cocaine (Ill. Rev. Stat. 1979, ch. 56 1/2, pars. 1401(b), 1402(b)); Bowes individually was charged with the possession offense. In a separate action, defendant Ronald Rudich was charged with a single count of possession of cocaine (Ill. Rev. Stat. 1979, ch. 56 1/2, par. 1402(b)). (Phelan, Bowes, and Rudich are hereafter collectively referred to as "defendants.")
Defendants filed motions to dismiss the charges on several grounds. *fn1 In both actions, the circuit court found that the substance cocaine was not controlled under the applicable statute, and the term "cocaine" refers to several different chemical and molecular structures. As a consequence, the court ordered all charges in both actions dismissed. The State appeals; we consolidated the appeals because of the identity of the issues. *fn2 On appeal, the State argues that the circuit court's orders were erroneous.
The relevant procedural aspects of this case have already been set forth above. On April 7, 1980, a hearing was held in the Phelan-Bowes case on those defendants' motion to dismiss. At the hearing, the testimony of two expert witnesses was presented.
Dr. Richard Joel Miller, Ph.D., an assistant professor of pharmacology and physiological science, was called by defendants. Miller described the attributes of those substances classified as narcotics, and then described the attributes of non-narcotic stimulants. Miller described opium and opiates, heroin, and morphine as types of narcotic drugs. He stated that cocaine, specifically the "l" isomer, was "not a narcotic without any scientific doubt whatsoever * * *." Miller described the differences between cocaine and narcotics.
Miller was also questioned as to the isomers of cocaine. He stated that cocaine was known to have both an "l" and a "d" isomer. The former isomer is the one found in the natural coca leaf. The isomers have an identical chemical formula but a different molecular structure. Miller stated that some diastereoisomers of cocaine would still be referred to as being "cocaine" although they did not have any psychoreal effect on a person.
On cross-examination, Miller related that "l" cocaine certainly occurred in nature, but he was unsure of whether "d" cocaine did. The latter substance's effect on a person was not known to him.
The State called Debora Ann Juricic, forensic scientist for the Illinois Department of Law Enforcement. She was read a segment of schedule II of the Controlled Substances Act (Ill. Rev. Stat. 1979, ch. 56 1/2, par. 1206(b)(4)). *fn3 Juricic stated that that segment defined cocaine, specifically the "l" isomer. She stated that the drug "d" cocaine had never been synthesized. Asked whether the provision read to her described any other isomers of cocaine, Juricic responded that such isomers (actually diastereoisomers) were not found by her "in the first place."
On cross-examination, Juricic admitted that a ralemic, that is, mixture of both "l" and "d" cocaine, had been synthesized. She stated that separation of the mixtures had never been done. Pure "d" cocaine had never been synthesized without producing "l" cocaine at the same time. Juricic did not know if "d" cocaine was psychoactive. She also noted that there were four known diastereoisomers each for "d" and "l" cocaine.
On redirect, Juricic stated that her tests could determine whether the substance under examination was a derivative of a coca leaf or was a chemical equivalent. On recross, she repeated that "d" cocaine was not an extract of the coca leaf, although it has the same formula as "l" cocaine and is known as "cocaine."
After taking the motion to dismiss under advisement, the circuit court found that "cocaine was not a controlled substance — had been removed from the applicable statutes by a recent revision." The court reasoned that the charges also failed to apprise the accused of the crimes committed because the accused should not need to have "someone get out a dictionary or call in someone with a chemical knowledge or go to some other source to learn what a substance is."
The court specifically relied upon its decision in People v. Simon (reversed (1980), 91 Ill. App.3d 667, 416 N.E.2d 285), and ordered dismissal of the indictment against defendants Phelan and Bowes. In a separate hearing at which no witnesses were presented, the court took ...