Appeal from the Circuit Court of Kane County; the Hon. Barry
E. Puklin, Judge, presiding.
JUSTICE STROUSE DELIVERED THE OPINION OF THE COURT:
The defendant, Mario Saldana, appeals from a conviction following a jury trial of the unlawful delivery of a controlled substance (Class X) and conspiracy to deliver. He was given the minimum sentence of six years' imprisonment.
On the evening of June 5, 1984, several police personnel proceeded to the residence of Daniel Quinn in Lake in the Hills. Robert Pietrowski, a Chicago police officer assigned to the Drug Enforcement Administration (DEA) as an undercover agent, went to the residence to purchase lysergic acid diethylamide (LSD) from Quinn, who was the subject of an ongoing criminal investigation. Pietrowski, accompanied by a confidential informant, was observed entering the Quinn residence, where he remained for 10 minutes. After a meeting with fellow officers at the Lake in the Hills Airport, Pietrowski returned to Quinn's residence. Pietrowski, Quinn, and the confidential informant travelled by car to a Dairy Queen restaurant in Elgin.
James R. Marino, a Chicago police officer assigned to the DEA as a surveillance officer, watched as Quinn purchased ice cream, walked to the rear of the parking lot and disappeared. Quinn reappeared five minutes later, walked to the undercover vehicle and conversed with Pietrowski. Again Quinn walked out of sight. After Quinn returned and left a third time, he reentered the car and left the area with Pietrowski and the confidential informant. Officer Marino did not observe the defendant prior to the trial, did not know where Quinn went after leaving the undercover vehicle, and did not know what Quinn was doing when he was out of his line of vision. During cross-examination, defense counsel requested the name of the confidential informant. The trial court denied his request but allowed him to question Marino concerning whether he knew the informant and what he did.
Claudia Rang, a police officer from the village of Algonquin, also assisted in the surveillance. She observed the undercover vehicle, a jeep, and watched as Quinn exited the jeep and walked over to a green Ford Maverick. After conversing with someone in the Maverick, Quinn walked back to the jeep. Quinn later returned to the Maverick, entered it, and the car drove away. She saw Quinn walking back to the jeep approximately five minutes later. Quinn walked back to the Maverick a third time, where there was some conversation and he returned to the jeep. When Quinn left the jeep, the Maverick also drove away from the restaurant. Officer Rang was only able to observe the silhouette of the individual in the Maverick and could not identify that person. The lighting was "dim" around the Maverick. She did not see anything in Quinn's hands, nor did she observe anything being passed. She did see Quinn appear to tuck in his shirt.
Lieutenant Steven Schinkel of the Algonquin police department was also involved in the surveillance operation that evening. He observed Quinn enter the Maverick, talk to the driver and return to the jeep. He later observed Quinn enter the Maverick, and he followed the vehicle as it drove around the block and returned. As Quinn exited the Maverick, he rearranged his pants and stuffed a white object into them. He observed this from a distance of 50 feet as the interior dome light of the Maverick illuminated the area where Quinn was standing. Schinkel saw Quinn return to the Maverick a third time, enter it and return to the jeep. The green Maverick then left the area. Schinkel identified the defendant as the driver of the green Maverick. Defense counsel then stipulated that the defendant was at the Dairy Queen at that time. Schinkel did not know what was in the white package or object and he did not mention a "white object" in his police report. Schinkel further testified he did not observe the defendant hand anything to Quinn.
Agent Pietrowski testified that after proceeding from Quinn's residence to the restaurant with Quinn and the confidential informant, he parked and remained in the jeep for 30 minutes. Quinn got out of the jeep, and Pietrowski lost sight of him for several minutes. After Quinn returned to the jeep a second time, he pulled up his shirt to reveal an item wrapped in a white napkin. Pietrowski observed a number of papers containing orange-colored flying saucer symbols on each paper. There were approximately one hundred "hits" of LSD on each slab of paper. The papers were handed by Quinn to the confidential informant, who counted the number of "hits" as Pietrowski watched. The informant handed the papers back to Quinn and Pietrowski showed Quinn $1,696. Quinn exchanged the LSD for the money. Quinn left the jeep, later returned and then Pietrowski, Quinn, and the informant drove back to Quinn's residence.
Over defense counsel's objection, Pietrowski was allowed to testify under the co-conspirator exception to his hearsay conversations with Quinn. Again, defense counsel requested the informant's name, and the trial court would not allow disclosure. Pietrowski related that while he was at Quinn's residence, Quinn said "he just spoke to Mario and Mario wanted to do the deal a little later in the evening when it was darker." At the restaurant, upon Quinn's first return to the jeep, Quinn told Pietrowski that "Mario was here and he wanted the money." Pietrowski, however, wanted to see the "acid" before he gave the money. Quinn responded that he "would go over and talk to Mario and see if it was okay to check it out." After the delivery of LSD had taken place, Quinn told Pietrowski he "would take the money to Mario and be right back." On cross-examination, Pietrowski admitted he neither met nor observed the defendant.
Sanford Angelos, a forensic chemist with the DEA, testified that the weight of the exhibit was 15.89 grams. It was his opinion that the exhibit submitted contained LSD. The chemist did not perform tests on each and every paper or sheet of the evidence submitted for analysis and identification. Mr. Angelos first weighed the entire exhibit and then weighed the 20 sheets of white paper on a top-loading electronic scale. The scale is checked every day with an internal calibration of zero and 101, and on a monthly basis with standard class-S weights, and yearly from an outside source which certifies all of the balances. Defense counsel stipulated that the scales were functioning properly. Counsel also stipulated that the 20 sheets with the symbols contained LSD. Each sheet was then examined by ultraviolet light under which LSD fluoresces a blue color. The fluorescents will spot whether the sheet is totally or partially coated. In his scientific opinion, based on a reasonable degree of scientific certainty, all 20 sheets had LSD evenly distributed over the surfaces. Mr. Angelos then did a high-pressure liquid chromatography test. Under that test he quantitated the material of each component, and, within a reasonable degree of scientific certainty, he opined that the concentration was 23 micrograms of LSD per dosage unit. It was Mr. Angelos' opinion that the third test, a gaschromatography mass spectroscopy, showed that the contents were LSD. At 23 micrograms per dosage unit the sheets would weigh a total of 15.89 grams. Each piece of blotting paper was perforated so that there were 20 squares approximately one-quarter inch on each side on each paper so that the total number of dosage units was 2,000. Mr. Angelos stated that he used a standard method of sampling regularly used in the pharmaceutical industry to assure a random sample. Since each paper was uniformly coated, it appeared that the paper had been dipped in LSD. He testified that using this method of random sampling each sheet had an equal chance of being selected and each dosage unit had the same chance of selection.
After the defendant's motion for a directed verdict was denied, the defense called to the stand their only witness, Maria Nosek, for the purpose of impeaching Officer Schinkel's testimony concerning the interior light in the Maverick. Nosek testified that she owned the green Ford Maverick that was driven by defendant the evening of June 5, 1984, and that the interior dome light was not operating on the night in question and had not worked since May 1981.
The jury found the defendant guilty of unlawful delivery of a controlled substance and conspiracy. The defendant's motion for a new trial was denied. Thereafter, the defendant was sentenced to a six-year term of imprisonment for the unlawful-delivery offense only, the conspiracy having been deemed to merge with the delivery charge.
The defendant's first argument on appeal centers around the trial court's refusal to reveal the identity of a confidential informant who was present at and participated in the drug transaction. The defendant contends generally that the materiality of the confidential informant's testimony was potentially crucial for his defense. He relies on Roviaro v. United States (1957), 353 U.S. 53, 1 L.Ed.2d 639, 77 S.Ct. 623, where the informant had taken a material role in bringing about the defendant's possession of heroin. In that case, the informant played a material role as the sole participant with the defendant in the transaction and was the only witness to amplify or contradict the testimony of the government witness. 353 U.S. 53, 64-65, 1 L.Ed.2d 639, 647-48, 77 S.Ct. 623, 629-30.
The Illinois Supreme Court in People v. Lewis (1974), 57 Ill.2d 232, 235, adopted the Roviaro standard, holding that disclosure would be required when an informer acted in the dual role of informer-participant. Only the purchasing agent, the defendant, and the informer were present at the drug sale. Since the informer was the only witness to amplify or contradict the testimony of the government witness, the defendant should have been allowed to interview him. 57 Ill.2d 232, 238; see also People v. Perez (1974), 25 Ill. App.3d 371, 374-75.
• 1 Here, the informant did not witness the drug transaction; did not assist in staging the transaction; did not observe what each participant did in consummating the transaction; nor could the informant identify the defendant as he never saw, heard, or talked with the defendant. The informant's only involvement in the transaction was to sit in the car and count the number of "hits" of LSD contained in a napkin passed from Quinn to Agent Pietrowski. We find the ...