Appeal from the Circuit Court of Cook County; the Hon. John A.
McElligott, Judge, presiding.
PRESIDING JUSTICE WHITE DELIVERED THE OPINION OF THE COURT:
Following a bench trial, defendant Johnnie Knight was found guilty of each of five counts charged in an information which alleged the following:
"COUNT I: possession of more than 300 grams of a substance containing phencyclidine (PCP) in violation of section 402(a)(7)(iii) of the Controlled Substances Act (Ill. Rev. Stat. 1979, ch. 56 1/2, par. 1402(a)(7)(iii));
COUNT II: possession with intent to deliver more than 300 grams of a substance containing PCP in violation of section 401(a)(7)(III) of the Controlled Substances Act (Ill. Rev. Stat. 1979, ch. 56 1/2, par. 1401(a)(7)(iii));
COUNT III: possession of less than 30 grams of a substance containing cocaine in violation of section 402(b) of the Controlled Substances Act (Ill. Rev. Stat. 1979, ch. 56 1/2, par. 1402(b));
COUNT IV: possession of more than 30 grams of a substance containing cannabis sativa in violation of section 4(d) of the Cannabis Control Act (Ill. Rev. Stat. 1979, ch. 56 1/2, par. 704(d));
COUNT V: possession with intent to deliver more than 30 grams of a substance containing cannabis sativa in violation of section 5(d) of the Cannabis Control Act (Ill. Rev. Stat. 1979, ch. 56 1/2, par. 705(d))."
Defendant was sentenced on count II to eight years' imprisonment and sentenced on count V to five years' imprisonment, the sentences to run concurrently.
The evidence adduced at trial follows. Alfonso Ingram, owner of the building located at 1551 West 79th Street, Chicago, testified that he has leased the premises to defendant for approximately two years. Defendant operates a record shop in the building.
Officer William Schwartz of the Chicago police department testified that on November 19, 1979, he accompanied Officer Peck, also of the Chicago police department, to the record shop. The officers had a search warrant for the premises and for an individual known as "Pops." They arrived at the location at noon. Finding the door to the premises locked and burglar gates also locked, the officers positioned themselves where they could observe the front door of the shop. One-half hour to one hour later a white Ford Bronco stopped in front of the shop. Defendant and another male exited the car, defendant unlocked the gates and door to the shop, and the two entered the shop. Defendant had a brown paper bag in his hands, larger than a sandwich bag but smaller than a grocery bag. The officers followed defendant into the shop, gave him a copy of the search warrant and proceeded to search the public area of the shop and a room to the rear of the premises. Behind a counter in the record shop proper Officer Schwartz found a paper bag like the one defendant carried into the shop, which contained a substance later identified as cannabis. In the back room, behind a couch, he found a clear plastic bag with white powder later identified as PCP. Officer Schwartz gave the bags to Officer Peck.
Officer Schwartz further testified about the items offered for sale at the shop. These included records, glass tubes, pipes generally used for smoking marijuana or cocaine, cigarette paper, gram scales generally used to weigh narcotics, pimp oil, incense, mirror tiles imprinted with the word cocaine, batteries and small brown manilla envelopes.
On cross-examination, Officer Schwartz testified that as they were preparing to leave the shop a female entered and identified herself as an employee of the defendant. She stated that she was going to take care of the store. Officer Schwartz could not recall whether defendant gave the woman keys to the store before leaving for the police station. Further, the location from which the officers surveyed the front door of the shop was 300 to 400 feet from the shop.
Officer Richard Peck testified that upon searching defendant's person he found in defendant's front pocket two plastic bags containing white powders later identified as cocaine. Officer Peck inventoried the plastic bags found on defendant's person and the other substances found on the premises. *fn1
Officer Peck further testified that he has participated in approximately 2,000 narcotics arrests and seizures over a period of 17 years as a narcotics investigator. During the same period he has talked to approximately 25 to 30 users of PCP. A dosage of PCP is 1/100 of a gram and has a street value of 10 to 20 dollars.
Regina Wilborn testified for the defense that she has been employed at Knight's One Stop Record Shop for four years. In November of 1979 two other persons were employed at the shop, Ben Rogers and Angel. Ms. Wilborn had keys to the shop, as did Ben Rogers. All three employees had access to the back room. Ms. Wilborn's direct testimony was that she has lived in the back of the shop for approximately two years.
On cross-examination, Ms. Wilborn admitted that on July 28, 1981, she informed the State's Attorney that she had been living in the back of the shop for one year. She also admitted that she told the State's Attorney that the shop employed only one other employee. Ms. Wilborn further testified that currently defendant keeps some of his property in the back room.
The parties stipulated that Mary Jo Countryman, an expert chemist for the Chicago Crime Lab, examined the contents of the bags seized from defendant's person and shop and found 364 grams of cannabis sativa, 103 grams of cocaine and 638 grams of PCP.
• 1 On appeal defendant contends that sections 4(d) and 5(d) of the Cannabis Control Act, which embody the offenses of possession and possession with intent to deliver cannabis, and sections 402(7)(iii) and 401(7)(iii) of the Controlled Substances Act, which embody the offense of possession and possession with intent to deliver PCP, are violative of the equal protection and due process clauses of the Illinois and United States constitutions because the sections impose different penalties for the offenses of possession and possession with intent to deliver, whereas the offenses of possession and possession with intent to deliver are duplicative, requiring the same actions. We note that defendant did not question the validity of these sections at trial or in his post-trial motion for a new trial. Defendant has therefore waived these issues. People v. Luckey (1969), 42 Ill.2d 115, 117, 245 N.E.2d 769, cert. denied (1970), 397 U.S. 942, 25 L.Ed.2d 122, 90 S.Ct. 955; People v. Hale (1964), 31 Ill.2d 200, 202, 201 N.E.2d 454.
Moreover, we find the challenges advanced by defendant to be meritless. The equal protection clause does not deny States the power to treat different classes of persons in different ways. (People v. Bradley (1980), 79 Ill.2d 410, 416, 403 N.E.2d 1029.) Only when the law lays an unequal hand on those who have committed intrinsically the same quality of offense and penalizes one and not the other does the equal protection clause come into play. (People v. McCabe (1971), 49 Ill.2d 338, 341, 275 N.E.2d 407.) That clause requires equality between groups of persons similarly situated; it does not require equality or proportionality of penalties for dissimilar conduct. (People v. Stokes (1981), 102 Ill. App.3d 909, 917, 430 N.E.2d 370.) A defendant convicted of possession of cannabis or PCP is not similarly situated to one convicted of possession with intent to deliver cannabis or PCP. By the very definition of the offenses, those accused of one would be dissimilarly situated from those accused of the other.
Citing People v. Kline (1976), 41 Ill. App.3d 261, 354 N.E.2d 46, defendant maintains that persons convicted of possession and those convicted of possession with intent to deliver are similarly situated because intent to deliver may be shown by possession of large amounts of the drugs in question, whereas the possession statutes do not place upper limits on the amounts of the drugs upon which convictions for possession may rest. Defendant concludes that a person who has ...