People v. Hunter

• Decision Date: 11 May 1984
• Docket Number: No. 83-168,83-168
• Citation: 79 Ill.Dec. 755,124 Ill.App.3d 516,464 N.E.2d 659
• Parties: , 79 Ill.Dec. 755 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Fred HUNTER, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 659

464 N.E.2d 659

124 Ill.App.3d 516, 79 Ill.Dec. 755

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Fred HUNTER, Defendant-Appellant.

No. 83-168.

Appellate Court of Illinois First District, Fifth Division.

May 11, 1984.

Steven Clark and Karen Michels, Chicago, for defendant-appellant.

Richard M. Daley, Chicago, for plaintiff-appellee; Michael E. Shabat, James S. Veldman, and Adam Dabek, Chicago, of counsel.

SULLIVAN, Justice:

After a jury trial, defendant was convicted and sentenced to a term of 3 years for possession of a controlled substance with intent to deliver. On appeal, he contends that (1) he was not proved guilty beyond a reasonable doubt; (2) he was denied his sixth amendment right to confront witnesses against him when the State introduced the hearsay testimony of a police informer; (3) he was deprived of a fair trial by the admission of evidence suggesting his involvement in other crimes; (4) the trial court erred in admitting irrelevant and prejudicial testimony regarding illicit drug usage; (5) he was denied due process of law by the State's failure to timely disclose the identity of rebuttal witnesses in violation of Supreme Court Rule 412 (87 Ill.2d R. 412); (6) he was denied a fair trial by the admission of (a) irrelevant evidence during cross-examination of a defense witness, and (b) improper rebuttal testimony on that collateral matter; (7) the trial court erred in (a) refusing tendered instructions concerning lawful possession of controlled substances, and (b) failing to grant a mistrial based on prosecutorial misconduct; and (8) one of his convictions for possession of a controlled substance with intent to deliver must be vacated since the two counts arose from a single physical act.

At trial, Officer Sebeck testified that during his 7-year career as a Chicago police officer, he had participated in approximately 500 investigations involving many types of narcotics, the most common being injectible pills, which are pills usually taken orally when prescribed by a physician but injected in solution form by illicit users. Among those injectible pills was a combination known as "T's and Blues," consisting of equal parts of Talwin, a peach-colored pill commonly prescribed as a pain killer, and Pyrobenzamine, a blue-colored, non-prescription pill used in the treatment of colds. Illicit users generally purchase the pills in tinfoil packets containing one of each pill.

Sebeck further testified that on September 4, 1981, he and his partner were working in the area of Montrose and Broadway on an unrelated case when they noticed defendant seated alone in his parked station wagon. Based on a conversation with an informant a month earlier regarding defendant and that car, they began surveillance and observed an individual approach the car and exchange something with defendant. He (defendant) was then followed to another location, where 3 to 5 other persons approached his parked car and exchanged something with him. Suddenly, one of the individuals recognized them as police officers, and the group around the car scattered and ran. Defendant pulled away from the curb and turned the corner, but stopped when they signaled for him to do so. When defendant opened the door, he (Sebeck) noticed 10 to 14 pink and blue pills scattered on the front seat and floor. He recognized them as "T's and Blues," and immediately placed defendant under arrest and searched the car. No other substances were found in the front portion of the car, but he discovered five bottles in a locked rear compartment which contained Talwin, Pyrobenzamine, Preludin, Ritalin, and Dilaudid. He and his partner then transported defendant to a police station where the bottles of pills were placed in a sealed narcotics envelope and sent to a police laboratory for analysis.

On cross-examination, Sebeck acknowledged that his reports did not mention any exchanges between defendant and the individuals who approached the car; that no attempt was made to apprehend any of those persons; that he found no tinfoil or syringes in defendant's car; and that, in testimony at a pretrial hearing, he had stated he saw 10 to 14 pink pills, which he recognized as Talwin, on the front seat of defendant's car. He also stated that a separate inventory of 10 to 14 loose pills was not filed, explaining that his partner placed those pills in the appropriate containers found in defendant's trunk prior to the inventory, and that he did not search defendant for money, since at that time cash was considered contraband only when commingled with the narcotics.

Officer Audino corroborated Sebeck's testimony and added that he recognized the individuals who approached defendant's car as illicit narcotics users. He also testified that he searched defendant when he was arrested and found approximately $90 in cash on his person, but no controlled substances; that after Sebeck gave him the pills found on the front seat of defendant's car, he placed them in the containers found in the rear compartment; and that Sebeck had to open the locked rear compartment forcibly when defendant claimed that he had no key therefor. Audino admitted that although he recognized the individuals who approached defendant's car, he made no attempt to apprehend them, nor had he sought to question any of them since that time. He also stated that the bottles found in defendant's car had labels bearing the name of a physician and a date, as well as a second name which was illegible. However, one bottle bore the date April 6, 1979, and one of the bottles labeled Talwin actually contained Ritalin.

Gerald Pazin, a forensic chemist, testified that he examined the bottles of pills recovered from defendant's car, and four of the bottles contained, respectively, pentazocine (commonly called Talwin), methylphenidate (commonly called Ritalin), phenometrizine (commonly called Preludin), and triple minimine (commonly called Pryobenzamine). The contents of the fifth bottle were insufficient to make a positive identification, but it was possible that the substance therein was Dilaudid. All but Pyrobenzamine were controlled substances, and all were manufactured by pharmaceutical companies.

Sergeant McCue, testifying as an expert witness for the State on the use and abuse of narcotic substances, stated that Talwin is used by drug abusers almost exclusively in conjunction with Pryobenzamine, and the combination, known as "T's and Blues," is a substitute for heroin. They are purchased on a 1-to-1 ratio, called a set, for $8 to $10 per set, and are crushed, mixed with liquid, heated, and injected. A user will inject 2 to 6 sets per day. Ritalin is usually sold individually, in conjunction with Talwin and Pryobenzamine, but is sometimes misrepresented as Talwin. McCue further testified that he knew of no legitimate purpose for having Talwin, Ritalin, and Preludin in conjunction with one another; however, he admitted that all three are commercially manufactured and prescribed by doctors. Ritalin and Preludin are stimulants, while Talwin is an analgesic used primarily to relieve light to moderate pain. Pryrobenzamine, an antihistamine, is a non-prescription drug used in the treatment of allergies and asthma.

Letisha Stadelman testified for defendant that she was the wife of Dr. Chester Stadelman and had worked for him as a receptionist, as well as keeping records and dispensing medication, during the 55 years that he practiced medicine. On September 1, 1981, defendant, whom she recognized as one of her husband's patients, came to his office complaining of pain. She called her husband, who was at home ill that day, and after talking to him gave defendant a 2-month supply of Talwin (120 pills), a 2-month supply of Ritalin (120 pills), and 30 Preludin tablets. The pills were kept on the premises, and she placed them in plastic containers before giving them to defendant.

On cross-examination, Mrs. Stadelman stated that she noted in defendant's medical record that he was given the pills, but her husband disposed of all his records when he retired on September 15, 1981, and defendant's records were no longer in existence. Mrs. Stadelman further stated that her husband, who was then 81 years old, had been ill for approximately 5 years and had had a very limited practice since suffering a stroke in 1980. She acknowledged that at the time defendant came to the office, her husband was no longer seeing patients and had not been to the office in 3 to 4 weeks. Defendant had no appointment, and the office just happened to be open because she was there preparing to close it permanently. Mrs. Stadelman denied that she ever dispensed medication to other patients, and admitted that defendant was not given a physical examination prior to receiving the drugs.

Thomas Dwyer, an assistant State's Attorney testifying for the State in rebuttal, read several sections of the Illinois Controlled Substances Act (Ill.Rev.Stat.1979, ch. 56 1/2, par. 1100 et seq.), which provided that if a drug containing pentazocine is dispensed other than by administering, an official triplicate form must be filed with the State and a copy thereof retained in a separate patient's record for 2 years; that the ultimate user can lawfully possess a controlled substance only in the container in which it was delivered by the person dispensing it; and that an oral prescription for a substance containing pentazocine may be issued only in an emergency situation. At defendant's request, Dwyer also read sections of the Act providing that an ultimate user or a person in possession of any controlled substance pursuant to a lawful prescription of a practitioner may lawfully possess controlled substances; and that "prescription" means a lawful written or verbal order of a physician.

Michael Fullman, an assistant deputy director of the Illinois Department of Registration and Education, also testifying for the State in rebuttal, stated that a...