APPEAL from the Circuit Court of Cook County; the Hon. FRANCIS
J. MAHON, Judge, presiding.
MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:
Defendant was charged by indictments with three counts of delivery of cocaine (Ill. Rev. Stat. 1979, ch. 56 1/2, pars. 1401(a)(2), 1401(b)), two counts of conspiracy to deliver cocaine (Ill. Rev. Stat. 1979, ch. 38, par. 8-2), and two counts of calculated criminal drug conspiracy (Ill. Rev. Stat. 1979, ch. 56 1/2, par. 1405). A jury found defendant guilty of each charge and judgment was entered. The trial court, finding the simple conspiracies and the deliveries merged into the greater calculated criminal drug conspiracies, sentenced defendant to concurrent seven-year terms for the two calculated criminal drug conspiracies. Defendant appeals. We affirm in part, reverse in part, and remand for sentencing.
Defendant raises the following issues on appeal:
(1) whether the amendment of his indictments shortly before trial was improper; (2) whether certain evidence taken incident to his warrantless arrest should have been suppressed; (3) whether entrapment had been proved as a matter of law; (4) whether the State proved that the substance delivered was cocaine; (5) whether the court erred in denying his motion for a mistrial; (6) whether he was proved guilty beyond a reasonable doubt of calculated criminal drug conspiracy; (7) whether the Class X felony of calculated criminal drug conspiracy is unconstitutional as applied to him; and (8) whether certain closing remarks of the prosecutor resulted in prejudicial error.
The following evidence was adduced at trial. Additional facts necessary to the resolution of the issues raised will be discussed as needed. In late 1977 a man named Dane Roth contacted the defendant and asked his help to obtain cocaine. Defendant was unable to obtain any cocaine for Roth until May 19, 1978. On that date Roth, accompanied by Judith Jankovich and Al Rodriguez, two special agents employed by the Illinois Department of Law Enforcement, went to defendant's residence. There an individual named Angelopoulos, who supplied defendant with cocaine for the latter's personal use, sold some cocaine to the agents. Dane Roth was subsequently arrested for assisting in this sale and, as a result, became an informant.
On June 15, 1978, Roth, now an informant, and Agent Jankovich again met with defendant. Jankovich inquired about purchasing a pound of cocaine. Defendant stated he would check with his people and see what he could do.
The next day Jankovich and Roth met with defendant at the latter's residence. Defendant testified that Roth pulled him aside and pleaded with him to get the cocaine Jankovich wanted. Jankovich testified that before she and Roth left, defendant uncapped a bottle containing white powder and offered her some to snort. Jankovich refused, but defendant snorted a "line" of cocaine. Jankovich also testified that when she returned to defendant's apartment later that same day, defendant identified another individual, Meryl Saxe, as his source of "good coke." Meryl Saxe and defendant had been friends from childhood.
Defendant testified that a few days later Roth called him, told him he had been busted and that defendant would be arrested if he didn't cooperate. Jankovich testified that she never told defendant she was a police agent. Defendant testified from this point on he thought he was helping Jankovich. Neither defendant nor Jankovich testified that defendant ever mentioned to her he knew she was an agent.
Subsequently, defendant made two calls to Jankovich to arrange the sale of an ounce of cocaine to her. That sale was consummated on July 12, 1978, at the home of Meryl Saxe, where defendant had directed Jankovich. Two others, Albert Greenberg and Harold Siegel, were also present. Siegel produced some white powder. Defendant snorted some and pronounced it good. Jankovich gave Siegel $2250 for the cocaine and told him that she was interested in purchasing larger quantities. Siegel quoted her an $8000 price for four ounces. Jankovich and defendant left. Before driving away, Jankovich gave defendant two marked $50 bills.
On July 13, 1978, defendant called Jankovich, at which time she complained that the $8000 price was too high. Defendant called her back and quoted her a lesser price. She also asked him the prices of a pound and of a kilo of cocaine. He called her back later and quoted her prices of $25,000-$27,000 and $50,000, respectively. Arrangements were made for Jankovich to purchase four ounces of cocaine. The sale occurred at Meryl Saxe's apartment later that evening. Defendant, Saxe, Siegel and Agents Jankovich and Gomilla were present. Jankovich paid Siegel for the cocaine and, after leaving the apartment, Jankovich paid $250 to defendant.
On July 19, 1978, a meeting took place to discuss the possible sale of a pound of cocaine to Jankovich. In attendance were Siegel, Saxe, Greenberg, Jankovich and defendant. During the discussion Siegel turned to defendant and told him that if Jankovich was "the man you're dead." Defendant gave Jankovich Saxe's telephone number so that she might contact him personally.
Between June 20 and 22, 1978, Jankovich talked with Saxe to arrange for the purchase of a pound of cocaine. On July 23, 1978, Jankovich told defendant that she would like the sale to occur at a place of her designation. Defendant told her to speak to Saxe about the matter. Jankovich called him and Saxe told her that the sale would occur at defendant's home that evening. The price for the pound of cocaine was $26,000.
A few hours later Jankovich and Gomilla went to defendant's home where defendant, Saxe, Siegel and Greenberg were waiting. Defendant told Greenberg and Saxe to produce "the package," Greenberg handed a grey paper bag to Jankovich, who removed a plastic bag and gave it to Gomilla. Gomilla tested the contents of the plastic bag and determined it was possibly cocaine. Defendant then weighed the plastic bag and its contents. Gomilla went outside to get the money to purchase the cocaine. Upon returning, he gave the money to Greenberg who along with Siegel counted it. There was $26,000 in five $5000 bills and one $1000 bill.
After the sale was completed, Jankovich and Gomilla left defendant's home. When completely outside, Gomilla gave a prearranged arrest signal to other agents who were waiting outside. Four of those agents approached the front door of defendant's residence. They knocked and announced their office several times. When no one opened the door, they smashed into it with a battering ram. When the door would not give in, the battering ram was thrown through the front window. One agent entered the residence through the window. Upon entering, he saw defendant approaching the front door, whereupon he arrested him and ordered him to open the front door. Saxe, Siegel and Greenberg were also arrested. Incident to the arrest, $20,000 was taken from Siegel, $6,000 was taken from Greenberg, and $81 was taken from defendant. A loaded gun which had been in Greenberg's possession was also taken into evidence by the agents. The arrests and accompanying search and seizure were made by the agents without either an arrest or search warrant.
Defendant first asserts that the trial court erred when it allowed the People to amend the indictments of defendant for the offense of calculated criminal drug conspiracy shortly before trial.
The original indictments recited in pertinent part that "* * * Richard Simon * * * organized and directed said conspiracy in violation of Chapter 56-1/2, Section 1405, Illinois Revised Statutes 1977, as amended * * *." Upon the People's motion, the word "directed" was deleted from the calculated criminal conspiracy drug counts. Defendant asserts that this alteration was material, lessening the prosecution's burden of proof and causing substantial prejudice to him. The People counter that the word "directed" was mere surplusage and properly deleted.
An indictment may be amended on motion of the State's Attorney or defendant at any time because of formal defects (Ill. Rev. Stat. 1979, ch. 38, par. 111-5), including "[t]he presence of any unnecessary allegation." Ill. Rev. Stat. 1979, ch. 38, par. 111-5(d).
The primary safeguard of indictment by grand jury, which remains secured to criminal defendants, is to protect individuals from the caprice of the public prosecutor. (People v. Jones (1973), 53 Ill.2d 460, 292 N.E.2d 361.) Hence, where no hint of surprise or prejudice is shown, the ...