People v. Budinger
| Decision Date | 18 May 1992 |
| Docket Number | No. 1-90-1318,1-90-1318 |
| Citation | 230 Ill.App.3d 279,595 N.E.2d 28,171 Ill.Dec. 900 |
| Parties | , 171 Ill.Dec. 900 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. George BUDINGER, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
George P. Lynch, Chicago, for defendant-appellant.
Jack O'Malley, Cook County State's Atty., Chicago, Renee Goldfarb, Mary Brigid Kenney, and Theresa Harney, Asst. State's Attys., of counsel, for plaintiff-appellee.
Defendant George Budinger was charged by information with three counts of delivery of a controlled substance and one count of possession with intent to deliver. (See Ill.Rev.Stat.1987, ch. 56 1/2, par. 1401.) After a jury trial, defendant was found guilty of these charges and sentenced to one term of six years imprisonment and two concurrent terms of four years imprisonment. Defendant seeks review of these convictions and sentences alleging that: (1) the circuit court erred in denying his motion to specifically enforce a plea agreement or, alternatively, to dismiss the informations against him because of prosecutorial misconduct and the State's failure to honor a plea agreement; (2) the State failed to prove beyond a reasonable doubt that the substances he allegedly delivered were in fact cocaine; and (3) prosecutorial statements during closing argument denied him a fair trial. We affirm.
Prior to trial, defendant filed a two-part motion "to dismiss the informations or in the alternative to specifically enforce the plea agreement." In part one of the motion, defendant sought dismissal of the informations against him on the ground that the State improperly seized a non-testifying defense expert's work product in violation of defendant's constitutional rights. In part two, defendant sought dismissal of the informations or specific enforcement of a plea agreement on the ground that, in violation of his Federal guarantees of "life, liberty and due process," the State failed to cooperate with defendant under the alleged agreement.
Defendant's motion came to hearing. Regarding the plea agreement, the State acknowledged a plea agreement, but contended it was not enforceable because defendant did not plead guilty to any of the informations against him. The court agreed with the State, refused to hold an evidentiary hearing on the matter and denied defendant's motion. Defendant submitted his motion as an offer of proof of what he believed the evidence would show. The motion provided as follows:
In 1989, defendant, an assistant State's Attorney and Agent Douglas Mugford entered a plea agreement. Under the terms of the agreement, defendant was to fully cooperate with Agent Mugford and the Metropolitan Enforcement Group in the investigation and interdiction of narcotics transactions. The agreement contemplated that defendant's assistance would culminate in three, 100 gram purchases of controlled substances. In exchange for defendant's cooperation, defendant would plead guilty to the informations, and the prosecution would reduce defendant's Class X felony and make certain recommendations regarding defendant's sentencing. Defendant was advised on the danger of his cooperation but would be afforded protection where possible.
Defendant thereafter attempted to fulfill his obligations under the agreement, but the State failed to take meaningful efforts to cooperate with defendant. On at least 27 occasions, defendant unsuccessfully attempted to arrange narcotics transactions with various law enforcement agents. On most of the occasions, the agents were unavailable or failed to follow through with defendant's lead. On one occasion, the agents were watching Monday Night Football.
As a result of a drug transaction with an undercover agent, the other party to the transaction learned that defendant was cooperating with the police. This person thereafter committed an assault and battery upon defendant, burglarized his home and subjected defendant to numerous death threats.
Regarding defendant's alleged claim that the State improperly seized his expert's work product, the court agreed to conduct an evidentiary hearing. Assistant State's Attorney Michael Vittori testified that he requested Agent Mugford to transport the alleged narcotics to the laboratory of defendant's expert, Professor Robert Moriarty of the University of Illinois. Vittori requested that Mugford observe all procedures of the test to preserve the chain of custody. Vittori could not recall whether he told Mugford to take or obtain copies of the test results. Vittori added that he never filed Mugford's affidavit with the court as it had previously ordered because he believed Mugford's in-court testimony would better serve the court. Vittori did return the copies taken from Moriarty to defendant.
Professor Moriarty testified that defendant hired him to perform tests on the alleged controlled substances. Moriarty completed the requested tests, and Mugford requested copies of the results. Moriarty unsuccessfully attempted to call defense counsel to authorize the giving of copies to Mugford. Moriarty then turned a copy over to Mugford when Moriarty learned from Mugford that the State's Attorney had ordered Mugford to obtain a copy. Moriarty stated on cross-examination that Mugford was cordial the entire time and never interfered with the testing procedures.
Officer Mugford testified that Vittori requested him to transport the alleged narcotics to Moriarty and observe the testing procedure to preserve the chain of custody. Upon completion of the tests, Mugford was to obtain copies of the results. Mugford stated that he and the assistant State's Attorney looked at the work papers but they could not understand them. No copies were made and no other person saw the reports.
Upon completion of the hearing, the court denied defendant's motion to dismiss the indictment. The court agreed with defendant's assertion that the State was not entitled to a copy of Moriarty's work until the defense had listed Moriarty as a witness. Nevertheless, the court believed that the State's action resulted in no prejudice to defendant. Accordingly, defendant's motion was denied.
Defendant's jury trial commenced on March 28, 1990. The evidence produced at trial relevant to this appeal pertains to defendant's alleged sale of cocaine to undercover officers on December 1, 1987, January 21 and January 26, 1988. The undisputed facts established that each of the substances tested positive to a cobalt dicyanide field test. A similar positive result was reached for a substance found on defendant's person upon his arrest. Chain of custody for all four substances was established.
To establish that the substances sold were indeed cocaine, the State introduced the expert testimony of three chemists employed with the Illinois State Police Lab in Maywood, Illinois.
Deborah Magolin testified regarding the substance transferred in the January 22, 1988, transaction and the substance found on defendant's person. Respectively, they weighed 30.8 and 1.78 grams.
Magolin performed three generally accepted tests on the substances: a cobalt dicyanide test, a thin layer chromatography test, and an infrared spectrophotometer test. In the first test, a quantity of the alleged cocaine is mixed with a chemical reagent. If the alleged substance is cocaine, an identifiable color is produced. A positive result, however, does not confirm the presence of cocaine. In this case, the substances tested positive for the presence of cocaine.
Magolin then performed a thin layer chromatography test. This is also a preliminary test which measures the alleged substance against a known standard of cocaine. If the alleged substance reacts similarly to the known standard, a positive test result is produced. In this case, the alleged substances tested positive for cocaine.
Magolin finally performed the infrared spectrophotometer test. This is a confirmatory test which utilizes an infrared spectrophotometer to measure the amount of infrared radiation absorbed or transmitted through a sample substance. The product of this test is a unique absorption pattern or spectra based on the molecular structure of the sample tested. The pattern is then compared to the pattern of a known standard. If the two patterns match, then the two compounds are the same. In this case, the pattern of the substances matched the pattern produced by a known standard of cocaine.
Based upon the results of the above three tests, Magolin opined that the substance seized from defendant's person, and the substance transacted on January 22, 1988, were in fact cocaine.
On cross-examination, Magolin testified that the standard against which she measured the substances in question was a known standard of cocaine. She explained that she knew the standard to be cocaine because when a standard is received into the laboratory, it is tested to insure "what's on the bottle is in fact what is inside the bottle." While she could not recall whether she tested the standard in this case, she stated that one of the chemists in the laboratory tested the standard.
Nancy Hall testified regarding the substance transferred on January 21, 1988. She determined it to weigh 3.3 grams. Hall then performed the same three tests which Magolin performed. A known standard of cocaine was used. Based on the results of these three tests, Hall opined that the substance was in fact cocaine.
Hall testified on cross-examination regarding the infrared spectrophotometer test. She stated that the spectra from the unknown sample is compared to a hard copy of a graph of a known standard. She explained that the standard is not tested each time a sample is run in the spectrophometer. Hall did not test the standard she used in this case.
Albert Carl Larsen testified regarding the December 30, 1987, transaction. The substance transferred on that date weighed 3.6 grams....
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...would warrant the jury concluding beyond a reasonable doubt that the substance was cocaine. People v. Budinger (1992), 230 Ill.App.3d 279, 290, 291, 171 Ill.Dec. 900, 595 N.E.2d 28. The next issue is whether the trial court abused its discretion by failing properly to instruct the jury. It ......
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...suffers from “a denial of due process which can only be remedied by enforcement of the agreement.” People v. Budinger, 230 Ill.App.3d 279, 286, 171 Ill.Dec. 900, 595 N.E.2d 28 (1992). The State argues that defendant has not set forth how his own conduct violating the plea agreement constitu......
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...a constitutional right in reliance on the plea agreement, specific enforcement was not available. (See People v. Budinger (1992), 230 Ill.App.3d 279, 286, 171 Ill.Dec. 900, 595 N.E.2d 28.) We find no basis to affirm the trial court's order for specific In his final arguments, the defendant ......