People v. Phelan, s. 80-2194

• Decision Date: 01 September 1981
• Docket Number: 80-2654,Nos. 80-2194,s. 80-2194
• Citation: 426 N.E.2d 925,99 Ill.App.3d 925,55 Ill.Dec. 600
• Parties: , 55 Ill.Dec. 600 PEOPLE of the State of Illinois, Plaintiff-Appellant, v. James PHELAN and Brian Bowes, Defendants-Appellees. PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Ronald RUDICH, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 925

426 N.E.2d 925 99 Ill.App.3d 925, 55 Ill.Dec. 600 PEOPLE of the State of Illinois, Plaintiff-Appellant,
v.
James PHELAN and Brian Bowes, Defendants-Appellees.
PEOPLE of the State of Illinois, Plaintiff-Appellant,
v.
Ronald RUDICH, Defendant-Appellee. Nos. 80-2194, 80-2654. Appellate Court of Illinois, First District, Second Division. Sept. 1, 1981.
Rehearing Denied Sept. 22, 1981.

[99 Ill.App.3d 926]

Page 926

[55 Ill.Dec. 601] Richard M. Daley, Chicago (Michael Shabat, Iris E. Sholder, Chicago, of counsel), for plaintiff-appellant.

Edward B. Arnolds, and Gus P. Giannis, Chicago (Michael P. Seng, Chicago, of counsel), for defendants-appellees.

DOWNING, Justice:

Defendants James Phelan and Brian Bowes together were charged with two counts of delivery of a controlled substance, cocaine. (Ill.Rev.Stat.1979, ch. 561/2, pars. 1401(a)(2), (b).) Phelan individually was charged with one count each of delivery and possession of cocaine (Ill.Rev.Stat.1979,[99 Ill.App.3d 927] ch. 561/2, pars. 1401(b), 1402(b)); Bowes individually was charged with the possession offense. In a separate action, defendant Ronald Rudich was charged with a single count of possession of cocaine. (Ill.Rev.Stat.1979, ch. 561/2, par. 1402(b).) (Phelan, Bowes, and Rudich are hereafter collectively referred to as "defendants.")

Defendants filed motions to dismiss the charges on several grounds. ¹ In both actions, the circuit court found that the substance cocaine was not controlled under the applicable statute, and that the term "cocaine" refers to several different chemical and molecular structures. As a consequence, the court ordered all charges in both actions dismissed. The state appeals; we consolidated the appeals because of the identity of the issues. ² On appeal, the state argues that the circuit court's orders were erroneous.

The relevant procedural aspects of this case have already been set forth above. On April 7, 1980, a hearing was held in the Phelan-Bowes case on those defendants' motion to dismiss. At the hearing, the testimony of two expert witnesses was presented.

Dr. Richard Joel Miller, Ph.D., an assistant professor of pharmacology and physiological science, was called by defendants. Miller described the attributes of those substances classified as narcotics, and then described the attributes of non-narcotic stimulants. Miller described opium and opiates, heroin, and morphine as types of narcotic drugs. He stated that cocaine, specifically the "l" isomer, was "not a narcotic without any scientific doubt whatsoever * * *." Miller described the differences between cocaine and narcotics.

Miller was also questioned as to the isomers of cocaine. He stated that cocaine was known to have both an "l" and a "d" isomer. The former isomer is the one found in the natural coca leaf. The isomers have an identical chemical formula but a different

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[55 Ill.Dec. 602] molecular structure. Miller stated that some diastereoisomers of cocaine would still be referred to as being "cocaine" although they did not have any psychoreal effect on a person.

On cross-examination, Miller related that "l" cocaine certainly occurred in nature, but he was unsure of whether "d" cocaine did. The latter substance's effect on a person was not known to him.

The state called Debora Ann Juricic, forensic scientist for the Illinois Department of Law Enforcement. She was read a segment of Schedule II [99 Ill.App.3d 928] of the Controlled Substances Act (Ill.Rev.Stat.1979, ch. 561/2, par. 1206(b)(4)). ³ Juricic stated that that segment defined cocaine, specifically the "l" isomer. She stated that the drug "d" cocaine had never been...