People v. Evans

• Court: Appellate Court of Illinois
• Writing for the Court: BARRY
• Citation: People v. Evans, 461 N.E.2d 634, 122 Ill.App.3d 733, 78 Ill.Dec. 50 (Ill. App. 1984)
• Decision Date: 16 March 1984
• Docket Number: No. 3-83-0459,3-83-0459
• Parties: , 78 Ill.Dec. 50 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Bernard EVANS, Defendant-Appellant.

Page 634

461 N.E.2d 634

122 Ill.App.3d 733, 78 Ill.Dec. 50

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Bernard EVANS, Defendant-Appellant.

No. 3-83-0459.

Appellate Court of Illinois Third District.

March 16, 1984.

Rehearing Denied April 20, 1984.

Thomas A. Lilien, Asst. State Appellate Defender, Robert Agostinelli, Deputy State Appellate Defender, Ottawa, for defendant-appellant.

John M. Wood, John X. Breslin, State's Attorneys Appellate Service Commission, Ottawa, John A. Barra, State's Atty., Peoria, for plaintiff-appellee.

BARRY, Justice.

After a jury trial in the circuit court of Peoria County, defendant Bernard Evans was found guilty of unlawful delivery of a controlled substance (L.S.D.). He was sentenced to a term of 2 years imprisonment and ordered to make restitution in the amount of $180 from his bond.

In his appeal, defendant presents three issues: 1) whether he was proved guilty beyond a reasonable doubt; 2) whether prosecutorial misconduct deprived him of a fair trial; and 3) whether the sentencing judge exceeded his authority in ordering restitution.

The incident giving rise to the offense involved the sale by the defendant of approximately 100 pills containing less than 5 grams of lysergic acid diethylamide (L.S.D.) to 16-year old Mike France on November 1, 1982. At defendant's trial, France testified for the State under a grant of immunity. Other state witnesses included Donna Kurlinkus of the Multi-County Drug Enforcement Group (MEG); Agent Harry Sweet, also of MEG; and forensic scientist, Jean Muehlfelt.

Since the defendant's first issue essentially challenges the credibility of the State's witnesses, we will detail their testimony as presented at trial.

Michael France

According to France, he had met Agent Kurlinkus about a month prior to the instant drug sale while she was working undercover as "Karen Graham." Kurlinkus had been introduced to France as a friend of Gerald Price, an acquaintance of France.

Around 10:00 a.m. of November 1, 1982, Price and Graham arrived at France's home in Chillicothe. The three then drove in Price's car to a house at Edgewater Terrace where France was to purchase for Graham 100 "hits" of LSD from a known drug source, Toby Hutchinson. France knocked on the door of Hutchinson's house and waited about 15 minutes, but there was no answer. So he returned to Price and Graham and suggested they leave and come back a bit later since Toby usually was not gone long. They drove to a McDonald's restaurant and stayed there about an hour before returning to the Edgewater Terrace address. This time, France was admitted into the house by the defendant. France paid $180 from the $200 given to him by Graham and was given a plastic baggie containing 100 little pills known to him as purple microdot. When he returned to the car, France handed the bag of pills to Graham and told her to tell people not to take more than three hits at a time because it was very strong. He said that he had taken 2 the night before, and on the drive home all of the reflector lights along the side of the road were saying, "hi, hi, hi, hi." France had not, in truth, taken LSD the night before the transaction in question, but he had made the comment to Graham because he had taken some of the purple microdot on an earlier occasion. It was not that good, and he did not want Graham to be "bummed out."

On cross-examination France admitted that he had lied to the grand jury when he told them he did not use LSD. France said that, although he was sworn to tell the truth on that occasion, he had not been represented by counsel and he knew nothing about the law.

Donna Kurlinkus

Kurlinkus (Graham) had been introduced to France through her confidential source, Gerald Price. She related that she and Price picked up France at 11:30 a.m. on November 1, 1982. They drove to a house at 14905 Fruitland in Edgewild Addition and parked in the driveway. France told Kurlinkus that the acid she wanted cost about $1.80 a hit. She gave him $200 in $50-bills for 100 "hits" and told France to keep the change. Kurlinkus intended to give France the impression that she had a lot of money so that at some later time she could get France to introduce her to a large drug supplier under the guise that she wanted to deal in thousand lots.

France went to the door of the house just south of the address where the car was parked. It was raining very hard at the time, and France came back within a few minutes and reported that Toby was not there. At France's suggestion, the three left for about an hour and then returned to the Fruitland address. Upon their return, Kurlinkus said there were several men working around the house looking at old cars. France went up to one with dark, or black hair and they proceeded together inside the house.

When France returned to the car, Kurlinkus asked him if the man he bought from was Toby and France said, "No, that was Bernie." After dropping France back at his home, Kurlinkus field-tested the pills and ascertained that they contained LSD. The pills were subsequently delivered to the Morton crime lab for further testing.

At trial, Kurlinkus identified the defendant as the person she saw going into the house with France, but admitted that his hair was not dark. She explained the discrepancy by observing that his hair had been soaked by the rain when she saw him on November 1 and that it had appeared black under those conditions. She was, nonetheless, certain that she recognized the defendant's face from her earlier viewing of him.

Jean Muehlfelt

Forensic scientist Jean Muehlfelt of the Morton crime lab testified as an expert witness for the State. Based on her tests of the pills, she concluded that they contained LSD.

Harry Sweet

Finally, another MEG agent, Harry Sweet, testified that he had arrested the defendant on January 26, 1983, on the unlawful delivery charge. The defendant was read his Miranda rights, and he agreed to talk with the agent. Sweet read to the defendant the report filed by Agent Kurlinkus concerning the November 1, 1982, drug deal and then asked the defendant what he knew about the transaction. The defendant said he didn't know a Mike France and he did not remember having sold 100 hits to a Mike France. Nonetheless, the defendant admitted that Toby Hutchinson had been a roommate of his and that Hutchinson made monthly or bi-monthly trips to Michigan with $10,000 in cash to purchase LSD at 64cents a hit and then sold it from the Chillicothe residence at about $1.80 a hit. The defendant volunteered to turn over telephone bills displaying calls to Michigan made by Hutchinson. The defendant marked the long distance numbers called by Hutchinson in connection with the drug business for the agent's use.

The defendant on appeal takes the position that the immunized testimony of the State's star witness, Mike France, was not sufficiently credible to sustain a verdict of guilty and that Agent Kurlinkus' version was inconsistent in too many details to be considered corroborative of France's story. While it is true that France was shown to have lied under oath about his own drug use when he gave testimony against the defendant and he admitted having lied to "Graham" when he told her that the acid she bought was strong, we believe that France's credibility at trial was a matter properly placed before the jury to be weighed in their determination of the verdict. France was only 15 years old and, although streetwise, the jury could have believed that he had had little enough experience with the criminal justice system not to have understood the consequences of perjury when he lied to the grand jury. The fact of France's lies was thoroughly explored during defense counsel's cross-examination, as was the fact of the State's grant of immunity for this drug transaction and two earlier ones he had participated in with Agent Kurlinkus. In redirect examination, the State brought out France's understanding that he would be prosecuted for perjury if he lied from the witness stand and that France did not want to testify in this trial. In our opinion, France's credibility was sufficiently tested at trial to permit the jury to believe or disbelieve the evidence testified to by him. The jury was properly instructed on accomplice testimony. The testimony of an accomplice is sufficient to sustain a conviction in Illinois if it satisfies the trier of fact beyond a reasonable doubt. (People v. Nathaniel (1st Dist.1981), 103 Ill.App.3d 610, 59 Ill.Dec. 323, 431 N.E.2d 1080.) It is apparent from the jury's verdict that this standard was met here.

We do not find Kurlinkus' testimony, although differing as to certain details, so radically contrary to that of France's that it can not be believed. In many significant respects, Kurlinkus corroborated the substance of France's testimony. France did not indicate that he met the defendant prior to entering the house. However, France was not asked whether or not he had met the defendant outside of the house on the second trip to the Fruitland address. Thus, the jury could reasonably have believed that France did not mention that particular detail because it was not significant to him. To Kurlinkus, who testified that they had met prior to entering the house, the detail was of great significance because she wanted to remember the appearance of the person France talked to...