Appeal from the Circuit Court of Fulton County; the Hon.
Charles H. Wilhelm, Judge, presiding.
JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:
James Timmons appeals from his conviction for the unlawful delivery of a controlled substance, less than 30 grams of LSD. Following a jury trial, in which the defendant was found guilty, the trial judge sentenced him to a term of 30 months' probation, conditioned upon the payment of a $600 fine, court costs of $105.40, and a surcharge of $60. From the conviction, and the imposition of the surcharge, he appeals. The defense contends that reversal is required: (1) because the State was permitted to cross-examine the defendant regarding his post-arrest failure to communicate his trial-testimony claim of innocence; (2) because defense counsel was not permitted to bring forth that a key prosecution witness had refused to be interviewed by the defense prior to trial. The defendant also argues that he was not proven guilty beyond a reasonable doubt. The final issue raised is whether the court's order assessing the defendant a penalty assessment surcharge in the amount of $60 was in error.
The record establishes that the State's evidence consisted principally of the testimony of Donna Kurlinkus, an undercover MEG agent. Her testimony was that at about 6:15 p.m., on March 11, 1981, she and Joe Bricker were riding in her vehicle. They drove to a large green house in Banner, Illinois, into which they were admitted by the defendant Timmons. Timmons and agent Kurlinkus conversed about some "acid" (lysergic acid diethylamide) she "had heard he had." According to Kurlinkus, Timmons informed her that he only had one "hit" (unit) left, and he gave her a small piece of paper with blue edging. She put it in her pocket and later left. It was determined subsequently that the piece of paper contained LSD.
The other State's witness was William Maddox, a Pekin police officer, who had been assigned to the MEG unit. Maddox, on the basis of Kurlinkus' evidence, had executed an arrest warrant for the defendant, at Timmons' home in Banner, in January 1982. The arrest occurred almost nine months after the sale to Kurlinkus. Maddox testified that he went to Timmons' home, arrested him, advised him of his rights, and then transported him to the Fulton County jail by automobile. During the trip to Canton, the two conversed, with Maddox outlining the "general specifics" of the case. According to Maddox, the defendant denied ever selling acid to anyone. Maddox did indicate, however, that when asked about the acid, Timmons stated that he remembered getting it in a bar in Mapleton, but did not recall any girl. He denied throughout the conversation with Maddox any sale or transfer to Kurlinkus.
The defense witnesses were numerous. The defendant testified in his own behalf, indicating that on the day of the alleged sale, March 11, 1981, he was home with a friend until about 6:30 p.m., when he left for the bowling alley. He stated that neither Joe Bricker nor Donna Kurlinkus came by the house while he was there. Timmons admitted trying acid once, stating that he purchased it at a bar in Mapleton, sometime around Christmas 1980. Timmons recalled being arrested by Maddox, in January 1982, and riding with him to the jail. Timmons testified that he told Maddox that agent Kurlinkus had not been to his home and also that he had not given her any acid. He told Maddox that he had seen acid in a bar in Mapleton around Christmas time. He repeatedly denied any involvement in the incident.
In the State's cross-examination of the defendant, the prosecutor inquired how it was that the defendant could be so positive about his whereabouts on the day of the alleged sale to Kurlinkus. In response, Timmons detailed how, after his arrest, through subsequent conversations with his wife, he was able to specify his whereabouts and activities on March 11, 1981. Timmons indicated that his wife reminded him that March 11 was her sister's birthday and that there had been a family birthday party that day. The prosecutor then asked the defendant whether he didn't think it wise to tell the information to authorities before trial, and questioned why he had waited until trial to come forth with the testimony. Timmons responded that his lawyer was in charge of his case, after the arrest, and that he informed the lawyer of the matters. The defense objected to the prosecution's cross-examination concerning the defendant's post-arrest failure to talk to the police about his whereabouts on the day of the alleged sale. The trial court, finding that the defense had opened the door for such testimony, denied the motion to strike.
Other defense testimony corroborated the defendant's testimony as to his whereabouts and events of that day. Tim Seward, the friend who had allegedly been with Timmons all that day, stated that he had been with him until 6:30 p.m., when he left for the bowling alley. Seward testified that Joe Bricker, whom they both knew and whom Kurlinkus said was with her, did not come by Timmons' house that day. Mrs. Timmons also testified that Bricker did not come by, and she contradicted another of Kurlinkus' statements. Kurlinkus testified that there was a woman at the house, doing laundry, with children about, on the day of the sale. Mrs. Timmons stated that during that period of time she had no washer at home, and she did the laundry away from the home. Joe Bricker also testified for the defense, denying that he was with Officer Kurlinkus and denying ever going to the defendant's house with Kurlinkus. On cross-examination, Bricker admitted that he had formerly lived with the defendant and still bowled with him on occasion. Numerous other witnesses confirmed Bricker's testimony as to his whereabouts on that day, and the fact that he was not with Kurlinkus.
The only rebuttal testimony was from Officer Kurlinkus, who on direct had testified that Timmons' house was green, whereas the Timmons' house was white. Kurlinkus indicated that while jogging the morning of the trial she had noticed that the house was white, but had a dark green garage door.
The jury returned a guilty verdict and the court sentenced the defendant to a term of 30-months probation, with a fine of $600 and court costs. Later, the formal sentencing order required the defendant to pay the fine, costs, and an additional surcharge in the amount of $60. (Ill. Rev. Stat. 1981, ch. 38, par. 1005-9-1(c).) The notice of appeal was thereafter filed.
• 1 The first issue is whether reversible error was committed in the court's permitting the prosecution to cross-examine the defendant concerning his post-trial failure to communicate to them his trial testimony claim of innocence. In cross-examining the defendant, the prosecutor had Timmons reconstruct the process by which his wife and he were able to remember his actions and the events of March 11, 1981, the day of the alleged sale. Timmons testified on direct that he remembered the events of that day because his wife reminded him that it was the day of his sister-in-law's birthday party, which he had missed while bowling. During the cross-examination, the prosecutor stated:
"Q. After you talked to your wife, you didn't think it wise to come and tell the police authorities about this or the State's Attorney's Office; rather, you waited to come to Court today to tell us this?
A. Why should I go to the State's Attorney's when they are trying to — they arrested me. I am supposed to talk to my lawyer, not a State's Attorney.
Q. You wouldn't want to, since the State's Attorney's Office is the one that's charging you and the one that is accusing you of this crime. You wouldn't want to tell them that there's more indication here that would indicate that you were not involved?"
Defense objection was made to this attempted impeachment through evidence that Timmons had not gone to the State to inform them of his newly recollected information concerning his activities on the day of the alleged sale. The trial court initially ruled that the question was proper since the subject had been opened during the direct examination of the defendant in questions concerning his representation by an attorney. However, the subject of the defendant's discussions with his lawyer was not addressed by defense counsel until redirect. The trial court's basis for admitting the questioning, faced with the defense ...