Appeal from the Circuit Court of Lake County; the Hon. John L.
Hughes, Judge, presiding.
JUSTICE LINDBERG DELIVERED THE OPINION OF THE COURT:
JUSTICE LINDBERG delivered the opinion of the court:
Defendant, William Lee Miller, was sentenced by the circuit court of Lake County following a jury trial to a term of seven years to run consecutively to an earlier-imposed sentence. Both sentences resulted from convictions for delivery of less than 30 grams of a substance containing heroin. (Ill. Rev. Stat. 1977, ch. 56 1/2, par. 1401(b).) This appeal consolidates defendant's direct appeal, No. 79-578, and his appeal from the denial of his post-conviction petition challenging the imposition of a consecutive sentence, No. 81-803. The appeal from his first conviction is pending as No. 79-47. We affirm.
Defendant raises the following issues: (1) there was insufficient evidence to establish probable cause for the search warrant and the evidence seized pursuant thereto from his residence should have been suppressed; (2) the prosecutor erred when he informed the jury that defendant's alleged accomplice was in the county jail; (3) the imposition of consecutive sentences was error where defendant's acts constituted a single course of conduct with one criminal objective and where the trial court failed to state on the record that a consecutive sentence was necessary for the protection of the public; and (4) the trial court erred in sentencing defendant to a maximum term under the erroneous assumption that defendant was eligible for an enhanced penalty.
The facts underlying the instant appeal are extensive but are summarized to clarify discussion of the particular issues. On March 16, 1978, a Waukegan police officer acquired and marked a bottle of quinine monohydrochloride, commonly used to "cut" heroin, to use to trade for heroin. On March 21, 1978, the bottle was given to Illinois Department of Law Enforcement (IDLE) undercover agent James Warren. Defendant was the target of a combined Waukegan Police Department-IDLE undercover investigation of the sale of heroin.
On March 21 agent Warren arranged for an appointment with defendant at the Rib Pit in Waukegan. After a preliminary meeting with his surveillance team, Warren confirmed his appointment with defendant. When Warren arrived at the Rib Pit, defendant was present, but soon departed with an unidentified woman. They both returned five minutes later, but the woman again exited the Rib Pit prior to Warren's conversation with defendant.
Warren spoke with defendant across the counter of the restaurant and defendant examined the quinine. Warren then informed him that the 50-gram bottle contained 96% pure quinine. Warren further indicated that he requested six packets of heroin in exchange for the quinine, but that defendant offered only four. Warren stated that he agreed to the figure with the understanding that if the quinine were satisfactory, and defendant bought the remaining two bottles, he would get a better deal.
Warren further testified that defendant instructed him to wait and departed the Rib Pit with another man. The two men drove away in defendant's car, and returned several minutes later. Upon arrival, the other man emerged from the car and entered the Rib Pit, handed Warren four tinfoil packages, and existed without any conversation. Warren later learned that the man who handed him the packets was known as Duke Jackson.
Warren followed Jackson outside, spoke briefly with defendant about supplying additional quinine, and then departed. Subsequently, Warren met with the surveillance team, and handed over the packets. They contained a brown powdery substance. A field test indicated the presence of an opiate.
Clem Ferguson testified that he was employed by the IDLE and was assigned to surveillance on March 21, 1978. Ferguson related that Warren drove into the area, parked and entered the Rib Pit. Subsequently defendant emerged from the bar and drove away in his car. Several minutes later the car returned, driven by an unidentified woman and defendant exited. Thereafter, defendant and another man, who he later learned was named Jackson, emerged from the Rib Pit, drove away and subsequently returned. Jackson entered the bar, and exited 20 seconds later. Warren followed Jackson outside, spoke briefly to defendant, and then Jackson and defendant departed in defendant's car.
Frank Bullock, a Waukegan police detective, testified that he participated in the surveillance team on March 21. Bullock was stationed in an alley when he was advised that defendant's car was heading toward him. He followed the car to 609 May Street, defendant's residence, and then back to the Rib Pit vicinity through parallel alleyways. He stated that he never lost sight of the car. As he drove by, he noticed defendant seated on the passenger side, but could not identify the driver. He later followed the car back to defendant's home, where it made a momentary stop, and returned to the area of the Rib Pit. However, during the period of surveillance he never saw anyone enter or exit the vehicle. When it stopped, near defendant's garage, the interior light came on, but Bullock did not see anyone exit. The car remained stationary less than one minute.
Bullock further testified that he used an informant to obtain a search warrant in this investigation. He stated that the affidavit indicated the informant was inside the home within the previous 72 hours. Bullock also testified that the informant told them that he saw the (quinine) bottle on March 26, 1978, and that the item was named in the search warrant. Upon inspection of the warrant Bullock noted, however, that it commanded a search for "violation of possession of heroin."
Bullock was present when the warrant was executed. When he entered, other officers were present. He indicated that he did not know who, if anyone, preceded him into the pantry where the quinine bottle was found. It should be noted here that only the quinine bottle and no heroin was recovered in the search of defendant's residence.
David Stroz testified that he was employed as a police chemist. He received certain evidence from Bullock which he examined on April 6, 1978. He opened one of the four packets which contained heroin. The contents of the package weighed .25 grams.
During closing argument, the prosecutor informed the jury that Duke Jackson resided in the county jail. The trial court admonished the jury to disregard this statement, but denied the defendant's motion for a mistrial. Following its deliberations, the jury returned a verdict of guilty of unlawful delivery of less than 30 grams of heroin. Defendant's subsequent motion for a new trial was denied.
At sentencing, defendant testified that he had previously been convicted of the same offense, based on the same series of transactions, and was in the process of appealing the conviction. He was sentenced to a seven-year period of incarceration to run consecutively with the sentenced imposed in the other case. His motion for reconsideration was denied.
Defendant maintains that the information contained in the affidavit of Officer Frank Bullock supporting the complaint for search warrant of defendant's residence at 609 May Street, Waukegan, was inadequate to establish probable cause. Specifically, defendant claims that the court had insufficient information to establish a reasonable belief that evidence of a crime would be found in a search of 609 May Street.
The complaint and affidavit for search warrant prepared by Officer Bullock alleges the presence of a quantity of heroin in defendant's residence at 609 May Street in Waukegan. It details four undercover heroin transactions between IDLE agent James Warren and defendant which occurred on February 16 and March 6, 21 and 28, 1978, at the Rib Pit Restaurant. During these purchases, TV sets and quinine were used for barter.
That portion of the complaint for search warrant relating to the instant offense provided:
"On March 21, 1978 James Warren of the Illinois Department of Law Enforcement telephoned William Lee Miller and advised him that he had a quantity of Quinine which he was willing to exchange for a quantity of heroin. Previous to this Frank M. Bullock of the Waukegan Police Department was advised by a confidential source that William Lee Miller wanted a specific type of Quinine, namely Quinine Monohydrochloride Dihydrate, which Frank M. Bullock on behalf of the Waukegan Police Department subsequently obtained from the Aldrich Chemical Company. Frank M. Bullock knows Quinine to be a substance used to cut Heroin prior to its sale on the street.
That Frank M. Bullock received three bottles of the above-specified Quinine and marked the label of each bottle with the No. 202028. That James Warren of the Illinois Department of Law Enforcement entered the premises of the Rib Pit at 702 McAlister at about 7:20 p.m. and met with William Lee Miller and had a drug related conversation concerning the exchange of Quinine for Heroin. Subsequent to this conversation William Lee Miller exited the Rib Pit, entered his white over red Cadillac bearing 1978 Illinois Plates YE 8160 which Miller drove to the rear of his home at 609 May Street. That subsequently William Lee Miller returned to the Rib Pit and an individual named Duke Jackson, an individual known to associate with William Lee Miller, delivered to James Warren four tinfoil packets containing a brown powdery substance that was subsequently field tested and was positive for the presence of an opiate. Frank M. Bullock, that night, had a conversation with James Warren in which Warren advised him that he handed to William Lee Miller a single bottle of the above-described Quinine and that Miller agreed to give Warren four tinfoil packets of heroin which he in fact received from Duke Jackson.
Frank M. Bullock states that on the 26th day of March, 1978 a reliable informant was within the confines of the above-described premises and the informant did see a brown bottle bearing the markings of the Aldrich Chemical Company. The informant states that this bottle was in the kitchen area of the above-described premises. Your Affiant states that the informant has provided information leading to the arrest of three individuals and the conviction of one for felony charges. Your Affiant further states that the informant further provided numerous information which your Affiant has validated through investigation.
For the above stated reasons your Affiant believes that there is located in the above-described premises a quantity of heroin, in violation of Section 1401 and 1402, Chapter 56 1/2, Illinois Revised Statutes, 1977."
Additionally the complaint detailed the results of Officer Bullock's observations at defendant's residence on the other occasions in the following manner:
February 16, 1978 — defendant drove "to the rear of his home at 609 May Street" and then returned to the Rib Pit whereupon the heroin transaction took place.
March 6, 1978 — defendant was "observed leaving his residence at 609 May Street" and driving to the Rib Pit restaurant after Warren had telephoned defendant to arrange a transaction which then took place at the Rib Pit.
March 29, 1978 — Officer Bullock stated that "Tyrone Prater was observed leaving the residence of [defendant] at 609 May Street and entering the Rib Pit immediately before he [Prater] turned over the nine bags of heroin to James Warren." Warren exchanged two bottles of quinine for the heroin, all in the presence of defendant and pursuant to a drug-related conversation between Warren and defendant.
On the basis of the complaint for search warrant, the warrant was issued and executed. A quinine bottle was the only evidence seized and was the subject of defendant's ...