Appeal from the Circuit Court of Peoria County; the Hon.
Richard E. Eagleton, Judge, presiding.
JUSTICE BARRY DELIVERED THE OPINION OF THE COURT:
Rehearing denied April 20, 1984.
After a jury trial in the circuit court of Peoria County, defendant Bernard Evans was found guilty of unlawful delivery of a controlled substance (LSD). He was sentenced to a term of two years' imprisonment and ordered to make restitution in the amount of $180 from his bond.
In his appeal, defendant presents three issues: (1) whether he was proved guilty beyond a reasonable doubt; (2) whether prosecutorial misconduct deprived him of a fair trial; and (3) whether the sentencing judge exceeded his authority in ordering restitution.
The incident giving rise to the offense involved the sale by the defendant of approximately 100 pills containing less than five grams of lysergic acid diethylamide (LSD) to 16-year-old Mike France on November 1, 1982. At defendant's trial, France testified for the State under a grant of immunity. Other State witnesses included Donna Kurlinkus of the Multi-County Drug Enforcement Group (MEG); Agent Harry Sweet, also of MEG; and forensic scientist, Jean Muehlfelt.
Since the defendant's first issue essentially challenges the credibility of the State's witnesses, we will detail their testimony as presented at trial.
According to France, he had met Agent Kurlinkus about a month prior to the instant drug sale while she was working undercover as "Karen Graham." Kurlinkus had been introduced to France as a friend of Gerald Price, an acquaintance of France.
Around 10 a.m. of November 1, 1982, Price and Graham arrived at France's home in Chillicothe. The three then drove in Price's car to a house at Edgewater Terrace where France was to purchase for Graham 100 "hits" of LSD from a known drug source, Toby Hutchinson. France knocked on the door of Hutchinson's house and waited about 15 minutes, but there was no answer. So he returned to Price and Graham and suggested they leave and come back a bit later since Toby usually was not gone long. They drove to a McDonald's restaurant and stayed there about an hour before returning to the Edgewater Terrace address. This time, France was admitted into the house by the defendant. France paid $180 from the $200 given to him by Graham and was given a plastic baggie containing 100 little pills known to him as purple microdot. When he returned to the car, France handed the bag of pills to Graham and told her to tell people not to take more than three hits at a time because it was very strong. He said that he had taken two the night before, and on the drive home all of the reflector lights along the side of the road were saying, "hi, hi, hi, hi." France had not, in truth, taken LSD the night before the transaction in question, but he had made the comment to Graham because he had taken some of the purple microdot on an earlier occasion. It was not that good, and he did not want Graham to be "bummed out."
On cross-examination France admitted that he had lied to the grand jury when he told them he did not use LSD. France said that, although he was sworn to tell the truth on that occasion, he had not been represented by counsel and he knew nothing about the law.
Kurlinkus (Graham) had been introduced to France through her confidential source, Gerald Price. She related that she and Price picked up France at 11:30 a.m. on November 1, 1982. They drove to a house at 14905 Fruitland in Edgewild Addition and parked in the driveway. France told Kurlinkus that the acid she wanted cost about $1.80 a hit. She gave him $200 in $50 bills for 100 "hits" and told France to keep the change. Kurlinkus intended to give France the impression that she had a lot of money so that at some later time she could get France to introduce her to a large drug supplier under the guise that she wanted to deal in thousand lots.
France went to the door of the house just south of the address where the car was parked. It was raining very hard at the time, and France came back within a few minutes and reported that Toby was not there. At France's suggestion, the three left for about an hour and then returned to the Fruitland address. Upon their return, Kurlinkus said there were several men working around the house looking at old cars. France went up to one with dark or black hair and they proceeded together inside the house.
When France returned to the car, Kurlinkus asked if the man he bought from was Toby and France said, "No, that was Bernie." After dropping France back to his home, Kurlinkus field-tested the pills and ascertained that they contained LSD. The pills were ...