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01/29/87 the People of the State of v. Lori E. Upton

January 29, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

LORI E. UPTON, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

503 N.E.2d 1102, 151 Ill. App. 3d 1075, 105 Ill. Dec. 96 1987.IL.85

Appeal from the Circuit Court of Jackson County; the Hon. Richard E. Richman, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE KARNS delivered the opinion of the court. KASSERMAN and WELCH, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE KARNS

This cause is before us on remand from the Illinois Supreme Court, reversing our earlier decision holding unconstitutional section 404 of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1983, ch. 56 1/2, par. 1404). The mandate of the supreme court directs us to consider assignments of error not addressed in our earlier Disposition because of our Disposition of the cause solely on the constitutional issue.

The additional issues raised involve the prosecution's instructions Nos. 10 and 23A claimed to be misleading and inaccurate in defining a "look-alike" substance, and the refusal of the court to instruct the jury on the defense of entrapment.

On two occasions, November 16 and 20, 1982, Agent Donna Bandy of the Southern Illinois Enforcement Group purchased "bootleg bikers," noncontrolled substances, from the defendant. The meetings between defendant and Agent Bandy were arranged by Raymond Rinn, who had been charged with conspiracy to distribute a controlled substance. In order to avoid prosecution, Rinn agreed to bring into contact three suspected drug sellers with agents of the Southern Illinois Enforcement Group. One of the individuals selected by Rinn was defendant, not a friend, but an acquaintance with whom Rinn had smoked cannabis. He did not know from his prior experience with her that she was a seller of drugs, although he had a vague recollection that she offered to sell him some controlled substance, not specified, at some prior time. According to Bandy's testimony, on November 16 the tablets were sold to her as "ludes" or "quaaludes," a schedule I controlled substance, methaqualone (Ill. Rev. Stat. 1983, ch. 56 1/2, par. 1204(e)(2)), with the marking "Lemmon 714" imprinted on them, a customary marking for that controlled substance. Bandy testified that defendant referred to the tablets as good quality "bootleg bikers." Bandy further testified that the sale took place in defendant's room in Kellogg Hall and that she paid the usual and customary price for the tablets that one would pay for the controlled substance they were represented to be. Defendant said she would get 200 more tablets over the Thanksgiving break as well as "speed." On November 30, 1982, Rinn called Bandy and told her that defendant wanted to see her as she has more quaaludes. Six tablets were sold to Bandy in the same dormitory room in Kellogg Hall on that occasion. Defendant asked for and Bandy gave defendant her telephone number.

Subsequently, on December 8, 1982, Agent Burke, in the presence of Agent Bandy, purchased 100 purple tablets from defendant that defendant described as "purple crosses." The agent testified that she referred to the tablets at the time of sale as "speed," a controlled substance, amphetamine. (Ill. Rev. Stat. 1983, ch. 56 1/2, par. 1206(d)(1).) When asked what type of "speed," defendant said the tablets were "purple crosses."

None of the tablets were controlled substances. At trial, defendant testified that she did not take drugs or smoke cannabis with Rinn, that she knew the substances sold were non-controlled substances, and that she referred to the substances as "bootleg bikers," a mild sleeping pill, and "purple crosses," a tablet, like "No-Doz," containing caffeine. Some of these tablets could be purchased mail-order through a magazine, High Times, although she got them from another person. The difference between a "bootleg biker" and a quaalude is that the word "Lemmon" is spelled differently. Notwithstanding her testimony, over her objection the court gave the prosecution's instruction No. 10, a non-IPI (Illinois Pattern Jury Instruction) instruction taken from section 404(d) of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1983, ch. 56 1/2, par. 1404(d)) which told the jury that "[i]t is not a defense to the charge of unlawful distribution of a look-alike substance that the defendant believed the look-alike substance actually to be a controlled substance."

Defendant argues that it was prejudicial error to give this instruction as it interjected a nonissue into the case and implied that she believed the substances sold to be controlled substances. She argues that the jury would necessarily be confused as to how this instruction fit into the evidence presented. The error was compounded, defendant argues, by the prosecution's closing argument that defendant was a source of drugs on the campus at Southern Illinois University.

We disagree with defendant's assertion that the evidence establishes that she knew or believed that the substances sold were noncontrolled substances. While defendant assumes the record would establish that "bootleg bikers" and "purple crosses" are recognized street names for non-controlled substances, nothing in the evidence suggests just what these terms mean. These expressions could well be street names for methaqualone and amphetamines, controlled substances. Furthermore, while defendant argues that the evidence establishes that she knew the substances sold were non-controlled substances, the defendant testified she obtained the tablets from someone "uptown" who played in a band. We agree with the trial court's observation at the instruction conference that the evidence would establish that a question was raised as to what the defendant believed she was selling at the time, even though she testified that she knew the substances sold were noncontrolled substances. While the instruction was a non-IPI instruction, it was an accurate statement of the law applicable to the case.

For these reasons the instruction would properly clarify for the jury that it was not an element in the prosecution's case to prove that defendant believed the tablets to be non-controlled substances; that what she believed the substances to be was of no import. Rather than confuse the jury, we believe the instruction would clarify this matter for the jury. In any event, the giving of the instruction would be harmless error at most as the giving of the instruction could not conceivably confuse the jury in view of the other instructions which set forth the elements the State must prove. The prosecution emphasized throughout the trial that defendant's belief as to the nature of the substances sold was of no consequence.

It would appear that the instructions defining the offenses placed a greater burden on the prosecution than did the statute defining the offense. The instructions told the jury that the offense of distributing a look-alike substance was committed when the defendant knowingly distributes any substance which the ...


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