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People v. Lopez





APPEAL from the Circuit Court of Cook County; the Hon. SYLVESTER C. CLOSE, Judge, presiding.


After a bench trial, Joseph Lopez (defendant) was convicted of delivery of less than 300 grams of phencyclidine (PCP), and was sentenced to three years. Defendant appeals.

An undercover officer testified that on February 27, 1979, he was introduced to defendant in the area of Damen and 35th Street in Chicago. The officer told defendant he wished to buy 4 ounces of PCP. Defendant said he did not have the substance but could have it by nighttime. They agreed to meet in the area that evening.

The officer drove his brown Buick to the place at about 8:40 p.m. He parked on the north side of the street and walked over to a parked Dodge van on the south side. Defendant stepped out of the van, and the officer asked if he had the substance. Defendant said no because the pharmacist was sick. Defendant stated he knew the pharmacist for four years and the man could make "either PCP or MDA, whatever I wanted." Defendant and the officer began to walk down the street together. Two girls about 14 years of age approached. They asked defendant if each of them could have a gram of PCP. Defendant gave the girls two plastic bags containing a white powdered substance. The girls gave defendant some money and left.

Defendant and the officer walked back and entered the officer's car. Defendant said he had "been dealing a long time and he didn't want to screw up now." The officer asked if defendant had a sample of PCP. Defendant gave the officer a plastic bag "containing a white powdered substance" and asked for $60. Defendant said he had sold the other two grams to the girls for $65. The officer gave defendant $60 and defendant left.

The officer field tested the powder. The test indicated possible or presumptive presence of PCP. The officer emptied the contents into a new plastic bag, which he and another officer initialed. He then added the original bag and sealed the new bag with staples and tape. He then put the new bag into a manilla envelope and locked and sealed it. He put an endorsement on the envelope which stated the contents and the place and time of receipt. That night the officer made photocopies of the outside of the plastic envelope and the manilla envelope.

On the next day the officer delivered the locked and sealed envelope to a chemist at the office of the Maywood Crime Laboratory. Some two months later the officer found defendant's name in Chicago police records. Defendant was then arrested.

The qualified forensic chemist testified that on February 28 she had received the manilla envelope from the officer. She identified a photocopy of this envelope. The copy actually and accurately showed the contents of the envelope. The chemist opened the envelope and examined the contents. There were markings on the outside of the plastic envelope including initials of the officer. The chemist also produced photocopies of the cover of her laboratory log book and of two pages thereof. These photographs showed the date of receiving the envelope. The chemist testified the various tests she made showed that the substance contained PCP.

Defendant called Joseph Koestner, with whom defendant lived for eight years, and also Rebecca Cochran, a friend of Koestner and defendant. Koestner testified that on February 27, 1979, between 7 and 9 p.m., he saw a dark car park in a parking lot on the north side of the street. A friend of defendant, Dave Krolic, came out and asked Koestner for the defendant. Krolic went upstairs and he and defendant came down together. The car was moved from the parking lot. Defendant spoke with persons in this car. Defendant never entered the car and never reached inside thereof. The occupants of the car never put their arms out. A red van then pulled up across the street. Two friends of defendant were in the van. Defendant walked across the street and spoke to them. The witness also saw Rebecca Cochran come out of a snack shop, approach the van and talk to a passenger. The witness did not see defendant reach into his pocket.

Cochran testified she saw defendant that night talking to two people in a red van owned by Ken Kadlec. A brownish car with two men in it was parked across the street. An individual exited the car. Cochran went with defendant who spoke to this individual. Defendant and Cochran went inside defendant's house where Koestner was upstairs. She saw Dave Krolic there downstairs. He asked defendant "if he was going to get the dope for him." Defendant told Dave Krolic to leave. The car and van left. She did not see "two white females around [defendant]."

On rebuttal, an investigator testified he had interviewed Cochran on December 9, 1980. She stated when she left a snack shop on February 27, 1979, defendant called her over. While they were talking a van with Pam and Ken Kadlec drove up. Cochran greeted the people in the van and then left. The investigator prepared a memorandum of this conversation.

Considering the evidence up to this point, we find that the guilt of the defendant has been proved beyond any reasonable doubt in an overwhelming manner. The testimony of the undercover officer stands unassailed. A field test, as performed by the officer, has been approved by the courts> of this jurisdiction. (See People v. Owens (1969), 41 Ill.2d 465, 467, 244 N.E.2d 188. See also People v. Hill (1978), 58 Ill. App.3d 494, 498, 374 N.E.2d 827, appeal denied (1978), 71 Ill.2d 604.) The positive testimony of the qualified chemist is an added element of proof which, however, requires further comment.

As against this formidable case, defendant has produced the testimony of two witnesses. The testimony of one was contradicted in part on rebuttal evidence of the State. In any event, the defense testimony as a whole is weak and scanty and entirely of a negative nature. The trial judge was not obliged to believe the defense evidence over the strong and positive evidence of the prosecution. The question of reasonable doubt was primarily for the trial judge. People v. Berland (1978), 74 Ill.2d 286, 307, 385 N.E.2d 649.

The rather unique aspect of this case arises as follows: the sale in question took place on February 27, 1979. Defendant was arrested May 10, 1979. Defendant filed no motion for discovery until February 13, 1980. The State answered on the same day. The answer states part of the physical property which the State intended to use at trial was "0.7 grams of phencyclidine." Discovery continued ...

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