Appeal from the Circuit Court of Lake County; the Hon. Jack
Hoogasian, Judge, presiding.
JUSTICE SCHNAKE DELIVERED THE OPINION OF THE COURT:
This is an interlocutory appeal by the defendant, Jeffrey Lovinger, under Supreme Court Rule 604(f) (94 Ill.2d R. 604(f)), from an order of the circuit court of Lake County, denying his motion to dismiss the charges against him based on former jeopardy.
The defendant was originally charged by information with the following three illegal drug deliveries: (1) October 15, 1979, delivery of less than 30 grams of a substance containing cocaine (Class 2 felony) (Ill. Rev. Stat. 1979, ch. 56 1/2, par. 1401(b)); (2) October 16, 1979, delivery of 30 grams or more of a substance containing cocaine (Class X felony) (Ill. Rev. Stat. 1979, ch. 56 1/2, par. 1401(a)(2)); and (3) October 16, 1979, delivery of more than 2.5 but not more than 10 grams of a substance containing cannabis (Class A misdemeanor) (Ill. Rev. Stat. 1979, ch. 56 1/2, par. 705(b)). The case proceeded to a bench trial, and the trial judge declared a mistrial on his own motion during the State's case in chief. The case was then assigned to another judge, who denied the defendant's motion to dismiss based on former jeopardy. A detailed statement of the proceedings at trial is essential to an exploration of the issue of double jeopardy.
The defendant, Jeffrey Lovinger, was arrested on October 16, 1979, and was subsequently charged by information with delivering cocaine to an undercover police officer named Paula Riccio on October 15, 1979, and delivering cocaine and cannabis to Riccio on the following day.
On September 7, 1982, prior to trial, an order was entered on the defendant's motion, requiring that "the evidence" in the case be transported to a laboratory in Glen Ellyn, and that "a portion of said evidence be analyzed [by the defendant's expert] in the presence of a chemist from the Northern Illinois Police Crime Laboratory." As explained hereinafter, it became apparent at trial that this order was not complied with.
The matter proceeded to a bench trial on November 3, 1982. On that date the defendant filed his response to the court's earlier order for discovery, indicating his intention to raise the defense of entrapment.
Paula Lemke, formerly Riccio, the undercover police officer named in the information, testified for the State about the deliveries on October 15 and 16, and about her part of the chain of custody regarding the alleged controlled substances. According to Lemke, the delivery on October 15 was made in Lovinger's car which was parked in the parking lot of Goodman's Restaurant in Highland Park. She and Lovinger had just lunched together in the restaurant. They had previously arranged to meet at Goodman's in order to consummate the drug transaction. The delivery on October 16 took place in Lovinger's apartment in Waukegan. Arrangements for this transaction were made during the earlier delivery at Goodman's and in subsequent telephone conversations. Immediately after the transaction on October 16, Lovinger was arrested along with a co-defendant not involved in this appeal, Stanley Blackowicz. The purported cocaine delivered on October 15 was contained in a plastic bag identified by Lemke as part of People's exhibit No. 1. The purported cocaine delivered on October 16 was contained in three plastic bags which she identified as People's exhibits Nos. 2A, 2B and 2C. The alleged marijuana delivered on October 16 was contained in a plastic bag which was part of People's exhibit No. 3.
During cross-examination of Lemke, it became apparent that the court's order of September 7, 1982, regarding analysis of the evidence by the defendant's expert, had not been carried out. The expert would not analyze the evidence in the presence of a chemist from the crime lab, apparently because he wanted to dry the substances overnight to determine their weight accurately. Subsequently, without any modification of the prior court order regarding analysis of the evidence by the defendant's expert, samples from the exhibits were taken to the defendant's expert and tested. Lemke testified, however, concerning the purported cocaine delivered on October 16, that the sample was taken from only one of the three plastic bags. On motion of the defendant the bench trial was continued so that the defendant's expert could analyze the substance in the other two plastic bags.
The bench trial resumed on Monday, January 31, 1983, and continued all that week and the first two days of the next. Lemke's cross-examination included questions about two other deliveries of purported cocaine by Lovinger to her on October 5 and 10, 1979. Presumably, these transactions were brought up by the defense with a view toward the anticipated entrapment defense. The purported cocaine delivered on October 5 and 10 was identified by Lemke as part of People's exhibit Nos. 4 and 5, respectively.
Other police officers testified about surveillance they conducted at the scenes of the transactions, the arrest of Lovinger and Blackowicz after the transaction on October 16, during which Blackowicz was observed trying to flush down the toilet the money Lemke paid for the substances, and the chain of custody concerning the exhibits. The State's chemist testified about his analysis of the evidence, and his findings supported the charges against the defendant. Most of the eight days of trial were spent on chain of custody.
During the direct examination of Officer Hutchings, evidence officer for the Waukegan police department, a discrepancy developed regarding the chain of custody of People's exhibit No. 1, the substance allegedly delivered on October 15. The court called a recess so that the prosecutor could "get [his] act together."
Following the recess, defense counsel informed the court that during the recess the prosecutor and the witness had been passing papers back and forth between them and had appeared to be discussing the case. Defense counsel stated that the prosecutor did not have a right to discuss the witness' testimony with him during a recess taken during said testimony. Defense counsel suggested that "the remaining testimony by this witness will have been tainted by the discussion."
The prosecutor told the court that he did not tell Hutchings how to testify. In fact, he advised, he told Hutchings they could not discuss his testimony. The prosecutor simply asked for Hutchings' records, reviewed them, and asked Hutchings to review his records and to testify from memory.
The judge then stated that it was improper for the prosecutor to talk with his witness during the recess, but that any error was harmless because Hutchings had been referring to his records throughout his testimony. The judge concluded his remarks by saying, "[T]here will be no further conversation, and if there is a motion for mistrial, that motion is denied." Defense counsel then moved to have Hutchings' testimony stricken, and to bar Hutchings from testifying further. When these motions were denied, defense counsel moved for a mistrial, which motion was also denied, and Hutchings' testimony continued. Prior to an overnight recess during his direct examination, the court admonished Hutchings not to discuss his testimony with any lawyers or anyone else because "we don't want any mistrial to occur."
Part of Hutchings' cross-examination concerned the method by which evidence was generally processed at the Waukegan police department. Hutchings testified as follows: There are evidence lockers located outside the booking room. Each locker has two keys, one kept in Hutchings' office, and the other kept in the locks of the lockers. When an officer seizes evidence, he places it in one of the lockers which he then locks. The officer then places the key through a slot into another locker which is kept locked. Hutchings keeps both keys for that locker. When Hutchings gets to work in the morning, he opens the locker with the keys, and then uses those keys to retrieve the evidence out of the other lockers. He then takes the evidence to his office. On redirect examination Hutchings stated, among other things, that it is possible for an officer to keep the key once he has placed evidence in a locker. Under those circumstances, Hutchings does not take the evidence out of that locker and into his office.
The State's next witness was Officer Bowden, who testified about the surveillance he conducted on the transactions on October 15 and 16, and about his part of the chain of custody of the physical evidence. During his direct examination he testified that he had handled the substances delivered on October 5, 10, 15, and 16, and in each case he received the evidence from Lemke and locked it in one of the evidence lockers described by Hutchings. Bowden, however, kept the key. He did not place it in the locker with the slot for keys described by Hutchings. In each case Bowden subsequently retrieved the evidence from the locker himself and gave it to the next person in the chain of custody. Regarding the purported cocaine delivered on October 10, Bowden testified that he received it from Lemke and locked it in an evidence locker on October 10. On the following day he retrieved it and turned it over to Hutchings. (Hutchings had previously testified that Bowden gave that evidence to him on October 10.) The prosecutor then asked Bowden, "When did you turn it over to Officer Hutchings?" and Bowden replied that he thought it was the following day, but he would have to see his records to be sure. When the prosecutor asked him if there was anything that would refresh his recollection, defense counsel objected. The court told the prosecutor not to correct the witness and called a recess, stating "You [presumably Officer Bowden] don't talk with them [presumably the lawyers]. They don't talk with you about this case. Again, I'm going to advise, let's get everything in order."
Following the recess, defense counsel stated to the judge, "[O]nce again I am informed that [the prosecutor] has been talking to a witness." The judge asked the prosecutor if he had talked to Bowden, and the prosecutor first replied, "Not about this case, no." He subsequently told the judge that "[t]he only thing I said to him was, `Do you have any police report on the 5th or 10th.'" During the recess, defense counsel had asked the prosecutor for the police reports concerning those dates. The prosecutor told the judge that he did not talk to Bowden about his testimony.
When Bowden entered the courtroom, the judge asked him if the prosecutor had talked with him during the recess. Bowden first told the court that he had not, and then said, "I told him that I wasn't pleased with the fact I was getting my butt chewed out. But that was it."
The defendant then testified to a third version of the conversation. He said that during the recess he overheard the prosecutor ask Bowden if he wrote any police reports concerning the 5th and 10th of October. Bowden replied that he was not sure whether he did or not. Lovinger subsequently heard something about the key to the evidence locker. Defense counsel had stated earlier that Lovinger told him that the prosecutor asked Bowden why he did not ...