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People v. Matkovick

OPINION FILED MARCH 23, 1984.

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,

v.

EDWARD MATKOVICK, APPELLEE.



Appeal from the Circuit Court of Du Page County, the Hon. Bruce R. Fawell, Judge, presiding.

JUSTICE GOLDENHERSH DELIVERED THE OPINION OF THE COURT:

Defendant, Edward Matkovick, was charged by information with the offense of unlawful distribution of a "look-alike substance." (Ill. Rev. Stat., 1982 Supp., ch. 56 1/2, par. 1404(b).) The circuit court of Du Page County allowed defendant's motion to dismiss the charge on the ground that section 404(b) of the Illinois Controlled Substances Act (Ill. Rev. Stat., 1982 Supp., ch. 56 1/2, par. 1404(b)) was unconstitutional and the People appealed. 87 Ill.2d R. 603.

Prior to review of the issues presented, we consider defendant's motion to strike certain portions of an appendix to the People's brief. Defendant moved to strike a document designated "Findings of The Illinois Dangerous Drugs Advisory Council Special Committee on Look-Alike Drugs, March 1982," and several pages from a report of the United States Department of Justice Drug Enforcement Administration.

Defendant contends that the above-described material should be stricken because it was not made part of the record in the circuit court. In support of his contention defendant cites People v. Lutz (1982), 103 Ill. App.3d 976, and People v. Yarbrough (1982), 103 Ill. App.3d 967, rev'd on other grounds (1982), 93 Ill.2d 421, in which the appellate court held that certain studies on the effect of mace on human test subjects (Lutz) and the credibility of eyewitness testimony (Yarbrough) were not properly before the court.

Citing Finish Line Express, Inc. v. City of Chicago (1978), 72 Ill.2d 131, the People argue that the material was properly included in its brief. In Finish Line it was held that a report of the Legislative Investigating Commission was a public record of which judicial notice may be taken. The reports from the Dangerous Drugs Advisory Council and from the United States Department of Justice Drug Enforcement Administration are public records (see Ill. Rev. Stat. 1981, ch. 116, par. 43.103; Ill. Rev. Stat. 1981, ch. 91 1/2, par. 120.4-1 et seq.; 21 U.S.C.A. sec. 1111 (West 1981)) and judicial notice may be taken of them. (Finish Line Express, Inc. v. City of Chicago (1978), 72 Ill.2d 131, 136; Gadlin v. Auditor of Public Accounts (1953), 414 Ill. 89, 94.) The motion to strike from the Attorney General's brief the challenged reports, and references thereto, is denied.

The information charged that defendant "did * * * within Du Page County, Illinois, commit the offense of UNLAWFUL DISTRIBUTION OF LOOK-ALIKE SUBSTANCE in that the said defendant, Edward Matkovick, knowingly and unlawfully distributed to Michael Tellone a substance which he, Edward Matkovick, represented to Michael Tellone to be a controlled substance, amphetamine * * *."

Section 404(b) of the Illinois Controlled Substances Act (Ill. Rev. Stat., 1982 Supp., ch. 56 1/2, par. 1404(b)) provides:

"(b) It is unlawful for any person knowingly to manufacture, distribute, advertise, or possess with intent to manufacture or distribute a look-alike substance. Any person who violates this subsection (b) shall be guilty of a Class 3 felony, the fine for which shall not exceed $20,000." Ill. Rev. Stat., 1982 Supp., ch. 56 1/2, par. 1404(b).

Section 102(z) of the Act provides:

"(z) `Look-alike substance' means a substance, other than a controlled substance or a drug for which a prescription is required under federal or State law, which (1) by overall dosage unit appearance, including shape, color, size, markings or lack thereof, taste, consistency, or any other identifying physical characteristic of the substance, would lead a reasonable person to believe that the substance is a controlled substance, or (2) is expressly or impliedly represented to be a controlled substance or is distributed under circumstances which would lead a reasonable person to believe that the substance is a controlled substance. For the purpose of determining whether the representations made or the circumstances of the distribution would lead a reasonable person to believe the substance to be a controlled substance under this clause (2) of subsection (z), the court or other authority may consider the following factors in addition to any other factor that may be relevant:

(a) Statements made by the owner or person in control of the substance concerning its nature, use or effect;

(b) Statements made to the buyer or recipient that the substance may be resold for profit;

(c) Whether the substance is packaged in a manner normally used for the illegal distribution of controlled substances;

(d) Whether the distribution or attempted distribution included an exchange of or demand for money or other property as consideration, and whether the amount of the consideration was substantially greater ...


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