People v. Patterson

• Citation: 274 N.E.2d 467,2 Ill.App.3d 902
• Decision Date: 08 October 1971
• Docket Number: Gen. No. 70--165
• Parties: PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Joseph Wayne PATTERSON, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 467

274 N.E.2d 467

2 Ill.App.3d 902

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Joseph Wayne PATTERSON, Defendant-Appellant.

Gen. No. 70--165.

Appellate Court of Illinois, Second District.

Oct. 8, 1971.

E. Roger Horsky, Ill. Defender Project, Elgin, Morton Zwick, Ill. Defender Project, Chicago, Thomas Holum, Ill. Defender Project, Elgin, for defendant-appellant.

Wm. V. Hopf, State's Atty., Malcolm F. Smith, Asst. State Atty., Wheaton, for plaintiff-appellee.

GUILD, Justice.

Joseph Wayne Patterson and others were charged in multicount indictments with violations of the Narcotic Drug Act alleged to have occurred on various dates during a period of about three weeks. On his own motion, defendant was granted severance from his co-defendants and on defendant's motion the various counts of these indictments were joined for trial on all charges in a single prosecution before a jury.

The verdicts returned were uniformly guilty; three of unlawful sale, four of unlawful possession, four of unlawful control, and one of unlawful manufacture of narcotic drugs. Patterson was sentenced to the penitentiary for a term of years not less than ten nor more than twelve on each conviction for unlawful sale, and to a term of years not less than two nor more than four on one conviction for unlawful possession, and to a term of years not less than two nor more than four for manufacture, all sentences being concurrent.

Three grounds for reversal are urged upon appeal: (1) Improper admission into evidence of marijuana allegedly sold which was not linked to defendant; (2) omission of exculpatory material from a written police report, and (3) error in jury instructions.

John Powell, an agent of the United States Bureau of Drug Abuse Control on five occasions succeeded in acquiring marijuana from the defendant in amounts progressing from an initial sample plastic bagful to a final quantity of fourteen and one-half pounds for which he paid $1,800 in marked currency. All acquisitions were in Downers Grove with the knowledge of, and on several occasions, under surveillance by members of the Downers Grove Police Department.

The State offered ten exhibits which had been identified as marijuana in support of various charges against Patterson. The defendant acknowledges that the chain of possession is sufficiently established in all exhibits from the point of possession by Agent Powell through various members of the Downers Grove Police Department, the analyzing chemist, and ultimate production in the courtroom. In oral argument it is conceded that the evidence sufficiently established that four exhibits were received by Agent Powell from defendant Patterson, but it is contended that six of the ten were improperly admitted because the evidence did not adequately link them to the defendant, and therefore from the defendant to Agent Powell. Defendant contends that one exhibit, State's Exhibit #4 supporting the charge of sale on October 7, 1967, was erroneously admitted. Agent Powell testified that on October 7th he met the defendant at the Downers Grove parking lot at 1:20 P.M.; that Patterson arrived, got out of the car carrying a brown paper bag, walked over to the agent's car, handed the bag to the agent who weighed it and placed it in the car. The agent discussed the price with the defendant and paid him $45.00 in official funds.

The court recessed for lunch and in the afternoon the State's Attorney said:

'Mr. Powell, you have testified about the October 7, 1967, meeting with Mr. Patterson. I show you at this time what has been marked People's Exhibit #4 for identification and ask you to look at it, please.'

The agent identified the bag with the drug abuse control number, the date and the initials and stated it was in the same condition at the time of trial that it was at the time he received it. It is difficult to say how the defendant can now contend that this exhibit was not linked to him.

Agent Powell testified that on October 16, 1967, he was in the rear of the Jewel store on Main Street in Downers Grove with Agent Black. When Patterson and a co-defendant arrived, Agent Powell walked over to an auto where the co-defendant handed Powell three brown paper bags which had been on the floor of the car. Patterson also picked up three bags, and all six bags were carried to the rear of Agent Powell's station wagon. Powell brought out his scale and weighed them. He and Patterson added the weights which came to fourteen and one-half pounds. After he paid Patterson, the defendant and others were placed under arrest.

At trial, an outer plastic bag was marked State's Exhibit No. 6 for identification. It contained State's Exhibits Nos. 7 through 12, and the crime laboratory technician testified she had so received them from Sgt. Fulgaro enclosed in the outer bag. In the context of the October 16, 1971, transaction the assistant state's attorney asked Agent Powell the following question:

'Will you tell the court and the jury what if anything you had done to or in connection with the paper bags you described that were placed in the back of your car?'

Powell answered:

'Yes, sir. They were transported to the jail and in jail I marked each bag with the Bureau of Drug Abuse Control number, the exhibit * * * the date and my initials and then I turned over to the custody of Sgt. Fulgaro, Downers Grove Police Department.'

After permission to break the outer plastic bag was obtained, the witness proceeded to testify concerning the six bags contained within it. He identified State's Exhibit No. 7 as being marked with his initials, the case and exhibit number, and the date of 10--16--67. He identified State's Exhibits 8, 9, 10, 11 and 12 in a similar manner, and said that aside from some opening of the paper bag seams, they were in substantially the same condition as when he first saw them on October 16, 1967. Concerning State's Exhibit No. 12 only, the witness added assent that it was the bag he had described previously as having had in his car.

Sgt. Fulgaro testified he observed the October 16, 1967 occurrence from the second floor of a building and saw Patterson and Powell each carrying several paper bags to Powell's vehicle. After the arrest he met Powell at the police station and received from him six paper bags which were marked with initials, date and case number. The content of each was in substantially the same condition as when he first saw them.

The defendant, Patterson, specifically testified that on October 16, 1967, he threw the closed bags onto the back floorboard of the car in which they were taken to the parking lot where he saw Powell and Black. 'We' brought 'six bags' to the back of the station wagon where Powell quickly weighed them at fourteen and one-half pounds and put them directly into his trunk.

Defendant objected generally at trial to admission of State's Exhibit No. 4 and objected to admission of State's Exhibits Nos. 7, 8, 9, 10, 11 and 12 as irrelevant and having no proper foundation.

Defendant cites People v. Williams, 25 Ill.2d 562, 185 N.E.2d 686 (1962); we do not find it applicable as it concerns a judgment of conviction erroneously entered without any stipulation or expert testimony whatsoever concerning the narcotic content of material tested, and the convictions were reversed because of a failure to connect the materials tested with the defendants. In People v. Maurice, 31 Ill.2d 456, 458, 202 N.E.2d 480, 481, the court said: 'We have no link, either by identification or continuity of possession * * *.'

'A foundation for the introduction of an object into evidence may be laid either through its identification by a witness or through establishment of a chain of possession.' People v. Greer, 28 Ill.2d 107, 113, 190 N.E.2d 742, 746 (1963). Both are not required, People v. Maurice, supra, as such a requirement would '* * * impose an unnecessary burden, while it would not assure a fairer trial to the accused.' People v. Judkins, 10 Ill.2d 445, 448, 140 N.E.2d 663, 664 (1957). We have examined the record in this case to determine whether the evidence meets either test, and note it contains no suggestion of tampering, altering or substitution.

Narcotic offense convictions were affirmed in People v. Davis, 33 Ill.2d 134, 210 N.E.2d 530 (1965), and People v. Anthony, 28 Ill.2d 65, 190 N.E.2d 837 (1963) on the basis that the State had sufficiently shown continuity of possession. No objection was raised at trial to the identity of the evidence in either of these cases, but the Anthony ruling and techniques for preserving evidence were subsequently approved even where the evidence in question was received over objection. People v. McElroy, 30 Ill.2d 286, 290, 196 N.E.2d 651, 653 (1964).

Whether continuity of possession has been sufficiently established may be drawn from all the facts and circumstances in the entire record People v.Daniels, 50 Ill.App.2d 108, 200 N.E.2d 110 (1964), and that requirement can be fully satisfied even where there are minor variations in the descriptions of the witnesses. People v. Harvey, 27 Ill.2d 282, 189 N.E.2d 320 (1963).

We therefore conclude that there was sufficient proof of continuity of possession in the testimony of the defendant himself and witnesses for the State.

Defendant's second contention on appeal is somewhat intertwined with his reliance at trial on the defense of entrapment. The jury was instructed on this defense but did not adopt it, as was their prorogative. Testimony concerned not only defendant's contacts and dealings with agent Powell, but also a rather bizarre and partially concurrent discussion with Downers Grove police officers. On October 9, 1967, a date following the first two alleged unlawful sales, patterson phoned an officer and met with him. On October 11, 1971, he again met with the first officer and with Sgt. Fulgaro, and later also met with a state narcotics inspector. While the evidence is somewhat conflicting, it is clear...