People v. Smith

• Decision Date: 29 September 1967
• Docket Number: No. 38010,38010
• Citation: 38 Ill.2d 13,230 N.E.2d 188
• Parties: The PEOPLE of the State of Illinois, Defendant in Error, v. Rubin SMITH, Plaintiff in Error.
• Court: Illinois Supreme Court

Page 188

230 N.E.2d 188

38 Ill.2d 13

The PEOPLE of the State of Illinois, Defendant in Error, v. Rubin SMITH, Plaintiff in Error.

No. 38010.

Supreme Court of Illinois.

Sept. 29, 1967.

Logan D. Fitch, Jr., Chicago, appointed by the court, for plaintiff in error.

William G. Clark, Atty. Gen., Springfield, and John J. Stamos, State's Atty., Chicago (Fred G. Leach, Asst. Atty. Gen., and Elmer C. Kissane and James B. Zagel, Asst. State's Attys., of counsel), for defendant in error.

KLINGBILE, Justice.

After a bench trial in the criminal court of Cook County, Rubin Smith was found guilty of the illegal sale of narcotics and was sentenced to imprisonment for not less than ten years nor more than twenty. He seeks review in this court asserting as a basis for jurisdiction on direct review that his constitutional rights were violated at the trial.

It appears that the purchase was made by George Lemmon, who had been given marked money for the purpose. After defendant and an accomplice emerged from the building in which the alleged sale took place, a police officer met Lemmon outside the building. Over defendant's objection the officer was allowed to testify that Lemmon, who apparently was deceased at the time of the trial, then and there identified the defendant as one of the men who had sold the narcotics to him. Defendant claims that by admitting the testimony the court denied him the right to meet his accusing witness face to face, as guaranteed by section 9 of article II of the constitution, S.H.A.

The right of confrontation is not only guaranteed to an accused by the constitution of Illinois, it is guaranteed by the sixth amendment to the constitution of the United States. It is now settled that the sixth amendment is made obligatory on the States by the fourteenth amendment. (Pointer v. State of Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923; Douglas v. State of Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934.) The right of cross-examination is an integral part of the right of confrontation. In this case Lemmon did not testify, so that there was no opportunity to cross-examine him. Nevertheless the trial court admitted in evidence testimony that Lemmon told the officer that defendant and the accomplice were the men who had sold him narcotics. The testimony can not be sustained as an implied admission by defendant since the statement by Lemmon was out of the presence and hearing of the defendant. We hold that the admission of this testimony denied to the defendant the constitutional right to confront the witnesses against him.

This does not dispose of the case, however, since errors, even of a constitutional nature may be regarded as harmless and not requiring reversal (Chapman v. State of California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705.) However, before it can be said that a Federal constitutional error can be held harmless, a reviewing court must be able to declare beyond a reasonable doubt that the error did not contribute to the finding of guilty. (Chapman v. State of California, 386 U.S. 18, 87 S.Ct. 824, 828, 17 L.Ed.2d 705.) We therefore consider the other evidence in the case to determine whether the error here may be regarded as harmless.

The officer also testified that Lemmon gave him 3 packages of narcotics after he emerged from the building. The officer then arrested defendant and Harold Sibley and searched them. He found nothing on defendant's person but found $15 of the previously identified money in Sibley's possession.

Harold Sibley also testified for the State. He had been jointly indicted with the defendant but had pleaded guilty and was awaiting sentence at the time of the defendant's trial. He testified that he and defendant were partners in the business of selling narcotics. On the night in question he told defendant that Lemmon wanted to purchase narcotics. Sibley went to defendant's home to pick up the narcotics to deliver to Lemmon but told defendant that he thought he had seen some police and didn't want to take the drugs to Lemmon. He then went back to a drugstore where Lemmon was waiting and took Lemmon to a hallway in defend...