Appeal from the Circuit Court of Cook County; the Hon. James
M. Bailey, Judge, presiding.
JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT:
After a bench trial, defendant Peter Amft was found guilty of delivery of more than 30 grams of a substance containing cocaine and of possession of the same with intent to deliver. He was sentenced to six years in the Illinois Department of Corrections on the conviction for delivery only. Defendant appeals.
On appeal, defendant contends (1) the trial court erred in denying his motion to dismiss the indictment; (2) the trial court erred in denying his motion to suppress oral and written statements made after his arrest; (3) he was not proved guilty beyond a reasonable doubt; and (4) cocaine is not a narcotic substance and his sentence is therefore improper.
Prior to trial, a hearing was held on defendant's motion to dismiss the indictment and suppress oral and written statements. At the hearing on the motion to suppress, defendant testified that on August 7, 1979, at 11:30 p.m., he was apprehended in his apartment by Robert Johnson and other law enforcement agents. Johnson told defendant that if he cooperated, he would not be arrested. Defendant agreed to phone Donald Wilson and ask Wilson to deliver a large quantity of cocaine. When Wilson arrived at defendant's apartment, Wilson was arrested. To defendant's knowledge, Wilson possessed narcotics.
Thereafter, defendant was taken to a police station for questioning. He was left in the custody of agent Robert Cerceo, who advised defendant that he was under arrest. Defendant told Cerceo of the promises made by Johnson. Cerceo responded that Johnson had no authority to make promises of that nature. However, Cerceo promised defendant he would be released in the morning if he cooperated. Defendant then told Cerceo of people he knew from the past who were undoubtedly still actively involved in smuggling, buying, and selling drugs. Cerceo promised that charges against defendant and Wilson would be dropped if defendant gave Cerceo information on these people. Cerceo also agreed to arrange for defendant's release on his own recognizance. Defendant was placed in a cell alone.
At approximately 3 a.m. on August 8, 1979, defendant was led to a room to speak with Johnson and Cerceo. Defendant explained his past association with Louis Azurduy, a Miami resident, and Antol Garcia, a Minneapolis resident. The agents stated charges against defendant and Wilson would be withdrawn if defendant assisted in an investigation leading to the arrest of Azurduy and Garcia for a "multi-kilo" drug sale. The agents advised defendant of his right to counsel, but advised defendant not to retain an attorney because the attorney would advise defendant not to cooperate with the agents.
On the afternoon of August 8, defendant appeared in court for a bond hearing. He was not represented by counsel. The assistant State's Attorney requested that defendant be released on an "I" bond of $25,000. After the hearing, Johnson, Cerceo and defendant discussed getting Azurduy and Garcia to Chicago with large quantities of cocaine which defendant would buy with money supplied by the agents. The agents would pose as defendant's partners.
Thereafter, defendant arranged to meet Azurduy in Chicago. Defendant also traveled to Miami to meet Azurduy. All transportation charges for both Azurduy and defendant were paid by the agents. All phone calls and conversations were monitored by the agents with defendant's permission.
Defendant further testified that he appeared in court three or four times between September and November, 1979. Each time, an agent was present and requested a continuance. In November, he spoke with Agent Popadowski, who told defendant he had been indicted. Defendant was notified by letter to appear for arraignment on January 10, 1980. Defendant retained an attorney in January 1980.
Defendant identified a form which he signed at the police station at 2:45 a.m. on August 8, 1979. The document advised defendant of his rights, including the right to counsel and stated that defendant waived these rights. Defendant also wrote a statement at 1:10 p.m. on August 8. In this statement, defendant described conversations he had with Lowell Murray regarding the sale of cocaine and admitted delivering cocaine to Murray on August 7, 1979. Defendant also stated that he had been advised of his rights and that the statement was made voluntarily. A supplementary statement was written by defendant on August 8 at 3:30 p.m. Again, defendant acknowledged each constitutional right and stated that no threats, promises, or coercion were used to force him to prepare the statement. Defendant testified that the agents told him to ignore these rights. Defendant also admitted reading and signing another document which stated, in part, that no agent could make promises or predictions to informants regarding the disposition of a case. Defendant testified that the agents told him this was a form the agents were forced to complete if defendant was to cooperate with them.
Agent Robert Johnson, called during the pretrial hearing as a witness by the State, testified that he read defendant his rights after he entered defendant's apartment. He arrested defendant and advised him that he was being charged with delivery of 500 grams of cocaine to Lowell Murray. Johnson never promised to drop this charge against defendant. He only advised defendant that if Don Wilson delivered more cocaine to defendant, defendant would not be charged with any crime pertaining to that specific delivery. Defendant was again advised of his rights at the police station. Defendant read the form and signed it. On the afternoon of August 8, defendant made a written statement after being advised of his rights. Johnson advised the assistant State's Attorney of defendant's cooperation in obtaining 1500 grams of cocaine from Lowell Murray. At the bond hearing, defendant asked for an "I" bond and the assistant State's Attorney did not object. Johnson denied offering defendant immunity or advising defendant against retaining an attorney.
Agent Cerceo testified that after defendant was brought to the police station, he gave defendant an advisement of rights form. Defendant read the form, stated he understood his rights, and signed the form. Defendant said he wanted to cooperate. Cerceo made no promises to defendant regarding prosecution of the offense, but only advised defendant that he would bring defendant's cooperation to the attention of the assistant State's Attorney for his consideration. Defendant provided two written statements. Cerceo witnessed defendant sign the form registering him as a cooperator with the department.
A hearing was also held on defendant's motion to suppress statements given after his arrest. Defendant adopted his testimony given at the aforementioned hearing. On brief direct and cross-examination, facts similar to those introduced at the prior hearing were adduced. Agents Johnson and Cerceo also testified during this hearing. Their testimony was also similar to that given at the ...