APPEAL from the Circuit Court of Cook County; the Hon. ROGER
J. KILEY, JR., Judge, presiding.
JUSTICE MCGILLICUDDY DELIVERED THE OPINION OF THE COURT:
Following a bench trial the defendant, Victor Morales, was convicted of delivery of a controlled substance (Ill. Rev. Stat. 1973, ch. 56 1/2, par. 1401(a)) and sentenced to a term of four years to four years and a day. On appeal the defendant contends that (1) he was not proved guilty beyond a reasonable doubt; (2) the court's denial of his motion to produce an informant deprived him of a fair trial; and (3) the court's failure to compel a witness to testify deprived him of his right to due process.
Santos Claudio, a former agent of the Illinois Bureau of Investigation, testified that on January 6, 1976, he entered "The Electric Lady," a poster shop owned by the defendant and located at 909 N. Damen Avenue in Chicago. The defendant and two other men were present in the store. One of the men resembled the defendant but was taller and heavier. Claudio told the men that he was interested in purchasing some heroin. After some discussion, an agreement was reached concerning the price. The defendant asked Claudio for his name and telephone number. Claudio wrote his name on a piece of paper but stated that he did not have a telephone. The defendant gave Claudio his phone number, and Claudio told him that he would call the defendant the following day.
On January 7, 1976, after meeting with his supervisor and other officers, Claudio called the defendant's number and recognized the defendant's voice. Claudio asked if he was "ready to do the deal." The defendant responded affirmatively.
At approximately 1:40 p.m. Claudio returned to the defendant's store. Claudio greeted the defendant and followed him to the back of the store. The defendant asked for the money and told Claudio he would tell him where to pick up "the stuff." Claudio objected to giving the money before the deal was completed. At this point Sebastian Ortega entered the store. Pursuant to defendant's instructions, Ortega accompanied Claudio to Claudio's automobile in order to count the money. Claudio showed Ortega $1350 in cash. Ortega left the vehicle and returned a few moments later. Ortega handed Claudio a brown paper bag which contained a tin foil package. Inside the tin foil were two packages of cellophane containing brown powder. The powder had a "vinegary acid type smell" which Claudio believed to be heroin. Claudio gave Ortega the money and depressed the brake of his car, which was a signal for certain surveillance agents. The agents arrested both Ortega and the defendant.
On cross-examination Claudio stated that he was first introduced to the defendant in November 1975 by Jose Torres, an informer. Claudio's report concerning this meeting was captioned "J. Morales." Claudio's report concerning the events of January 6 and 7 did not contain any reference to the phone conversation with the defendant. The inventory sheet which Claudio had prepared prior to the transaction at the store was captioned "J. Morales."
The parties stipulated that a chemist from the Department of Law Enforcement would testify that he tested the contents of a packet delivered to him by Claudio. The packet weighed 35.9 grams and contained heroin.
After the State rested, the defendant presented a motion asking the State to produce Jose Torres, the informer who allegedly introduced Claudio to the defendant. It was defendant's position that this meeting never occurred. The trial court denied this motion.
The defendant called as a witness Sebastian Ortega, who previously had pled guilty to the delivery of the heroin. After consulting with an assistant public defender, Ortega asserted his fifth amendment privilege against self-incrimination. The trial court denied defendant's request to compel Ortega to testify.
The defendant testified that he first met Claudio on January 6, 1976, when the agent entered the defendant's store. When Claudio expressed an interest in purchasing some heroin, the defendant told Claudio he did not know him. Claudio then spoke to defendant's brother, John Morales, who also was present in the store.
The defendant testified that he neither gave Claudio his telephone number nor received a phone call from him. On the afternoon of January 7, Claudio entered the store and began discussing his purchase of heroin. The defendant told Claudio that he knew nothing about this purchase. At this point Ortega came to the door of the store, and Ortega and Claudio left the store together.
The defendant testified that he did not give Ortega any heroin. He stated that his brother, John Morales, sold drugs. He further testified that he did not know the informer, Jose Torres.
Santos Claudio testified in rebuttal that he knew John Morales. John Morales was not in the store on January 7 when ...