People v. Hill

• Citation: 56 Ill.App.3d 510,14 Ill.Dec. 204,371 N.E.2d 1257
• Decision Date: 13 January 1978
• Docket Number: No. 14153,14153
• Parties: , 14 Ill.Dec. 204 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Larry HILL, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1257

371 N.E.2d 1257

56 Ill.App.3d 510, 14 Ill.Dec. 204

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Larry HILL, Defendant-Appellant.

No. 14153.

Appellate Court of Illinois, Fourth District.

Jan. 13, 1978.

James W. Johnson, Decatur, for defendant-appellant; Jessica Stricklin, Decatur, of counsel.

Patrick M. Walsh, State's Atty., for plaintiff-appellee; Donald R. Parkinson, Asst. State's Atty., Decatur, of counsel.

TRAPP, Justice.

Defendant appeals his convictions of delivery of controlled substances entered upon the respective jury verdicts, (1) delivery of MDA (methylenedioxyamphetamine) to Fred Donini, (2) delivery of MDA to David Hunter, and (3) delivery of PCP (phencyclidine). Concurrent sentences of 3 to 10 years were imposed.

The testimony discloses that IBI agents, Donini and Inlow, with an informant, Hunter, went to defendant's residence. Hunter asked defendant to purchase PCP. He and defendant went to another room; the latter produced a bag and the contents tested to be PCP. They returned to the room where the agents remained; the bag was weighed and each agent purchased $600 worth. The money was counted and defendant received the $1200.

Hunter, Donini and Inlow each testified that as they were leaving defendant asked if they wanted some MDA. Upon acceptance, defendant went to get a vial or package from which he made two small paper bags giving one each to Hunter and Donini. Hunter later gave his packet to Donini but they were not kept separately and the witnesses could not state which was given to Hunter and which to Donini. Donini and Inlow testified that defendant stated that he could get tuinal, seconal, carbinol, and placidyls in lots of 1000 or more and quoted a price. There was a tentative discussion as to future purchases. The named substances are barbiturates.

Defendant testified that Hunter brought the agents to his residence and asked defendant for the package that he, Hunter, had left there; that they went to the basement to get the package and that Hunter delivered a bag to Donini and Inlow; the contents were weighed and money exchanged. He testified that the money was left with him to apply on a debt of Hunter. On direct examination defendant did not testify to the MDA transaction but on cross-examination denied having either PCP or MDA.

Mike Smith testified in behalf of defendant that Hunter carried out the drug transaction with the agents and defendant was not in the room at the time. There is a conflict in the testimony as to whether the Smith who testified was the same Smith to whom the agents were introduced when they received the controlled substances at defendant's residence.

Defendant objected to the testimony that defendant had stated that he could obtain the several controlled substances (barbiturates) in large quantities and stating a price. He argues that it is reversible error to admit "(E)vidence of purported subsequent offenses".

Defendant agrees that proof of prior similar offenses is admissible to show identity, modis operandi, knowledge, motive, intent, accident or absence of mistake if they are issues in the case, but that such evidence is inadmissible to simply show propensity to commit the offenses charged. (People v. Cole (1963), 29 Ill.2d 501, 194 N.E.2d 269.) He cites People v. Chronister (1942), 379 Ill. 617, 41 N.E.2d 750, which holds that in a prosecution for forgery evidence of a subsequent forgery is not admissible for the purpose of proving knowledge and intent at the time of the first forgery.

Defendant's authorities do not focus upon the actual question. We do not agree that the testimony challenged amounts to proof of a subsequent offense for the testimony does not purport to show any subsequent act performed which would constitute an offense.

The statements of defendant to which the prosecution witnesses testified were made incident to and a part of the transaction described in evidence. The statements of the defendant disclosed both his present willingness to make a future sale of a controlled substance and his claim of present ability to procure such substances for sale. In the cases regulating the admissibility of evidence of prior and subsequent offenses, the jury is asked to make an appropriate inference from the fact of a criminal act described in evidence. The testimony at issue here is a direct statement by defendant admitting the fact of his present state of mind. The intent and knowledge shown are relevant to his intent and knowledge at the time of the delivery for which defendant was being tried. As in Cole, we hold that the evidence was relevant for purposes other than showing a propensity to commit crime.

Defendant argues that there is no evidence that the various barbiturates offered for sale are part of a crime similar to the delivery of PCP or MDA. We take judicial notice that each are scheduled as a controlled substance. Defendant was charged with the delivery of the controlled substances in violation of Illinois Revised Statutes 1975, chapter 561/2, par. 1401. The elements of the offenses charged are the same for all the controlled substances identified in that statute regardless of classification or schedule. No authority is cited and we find no logical reason to conclude that there must be expert testimony showing similarity of the barbiturates to MDA or PCP. It appears, in fact, from the statutory classification that the barbiturates offered for sale are deemed more harmful than either MDA or PCP.

Defendant urges reversible error when the trial court sustained objections to defendant's cross-examination of Hunter, designed as a foundation for impeachment. It does not clearly appear upon what issue he was to be impeached, but from the context of the record it appears to have concerned the transfer of money. The question was:

"Do you remember a conversation you had in my office with me June 28, 1976." (Emphasis supplied)

The second question was directed to the same conversation. No offer of proof was made when the objection was sustained.

Defendant cites People v. Edmunds (1964), 30 Ill.2d 538, 198 N.E.2d 313, and People v. Hunt (1971), 132 Ill.App.2d 314, 270 N.E.2d 243. Each held that it was error to deny cross-examination directed to a foundation concerning statements which might impeach by the witness to police.

The State's Attorney cited People v. Gendron (1968), 41 Ill.2d 351, 243 N.E.2d 208, cert. denied, 396 U.S. 889, 24 L.Ed.2d 164, 90 S.Ct. 179. In that case the trial court refused to permit the defendant to call the State's Attorney to testify concerning guns and ballistic matters which the prosecution had not introduced into evidence. The opinion stated the view that courts were reluctant to permit an attorney to appear both as a witness and an advocate in the same case and adopted the language that:

"(J)udicial discretion is generally exercised to prevent testimony by an advocate in favor of the party whom he represents * * *." (41 Ill.2d 351-58, 243 N.E.2d 208-13.)

In People v. King (1977), 66 Ill.2d 551, 6 Ill.Dec. 891, 363 N.E.2d 838, it was stated that the trial court had a wide discretion in refusing to permit an attorney to testify at trial in favor of his client. In each of such cases it appears that other sources were available to testify upon the issue presented.

In People v. Attaway (1976), 41 Ill.App.3d 837, 354 N.E.2d 448 (leave to appeal denied), we find facts substantially similar to the present question. During cross-examination of a prosecution eyewitness to armed robbery, the trial court refused to permit defense counsel to cross-examine the witness as to a conversation between the witness and counsel. Such conversation would be a foundation for impeachment in a substantial degree of the witness's identification.

The trial court pointed out that to impeach the witness counsel would have to testify to the conversation and that he would not permit counsel to so testify unless he withdrew from the case. The latter refused to withdraw, but made an offer of proof. In affirming, the reviewing court examined Cannon 5, DR 5-102 of the Illinois Code of Professional Responsibility, which provides:

"If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm ought to be called as a witness on behalf of his client, he shall withdraw from the conduct of the trial and his firm, if any, shall not continue representation in the trial, except that he may continue the representation and he or a lawyer in his firm may testify in the circumstances enumerated in DR...