United States ex rel. Lemon v. Pate, 17933.

• Decision Date: 26 June 1970
• Docket Number: No. 17933.,17933.
• Citation: 427 F.2d 1010
• Parties: UNITED STATES of America ex rel. Thomas LEMON, Petitioner-Appellant, v. Frank PATE, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

427 F.2d 1010 (1970)

UNITED STATES of America ex rel. Thomas LEMON, Petitioner-Appellant, v. Frank PATE, Warden, Respondent-Appellee.

No. 17933.

United States Court of Appeals, Seventh Circuit.

June 26, 1970.

James Haddad, Chicago, Ill., for appellant.

Thomas J. Immel, Asst. Atty. Gen., Warren K. Smoot, William J. Scott, Atty. Gen. of State of Illinois, Chicago, Ill., Joel M. Flaum, Asst. Atty. Gen., of counsel, for appellee.

Before MAJOR and HASTINGS, Senior Circuit Judges, and CUMMINGS, Circuit Judge.

MAJOR, Senior Circuit Judge.

Thomas Lemon (petitioner) was charged by indictment in the State Court with the sale of a narcotic drug in violation of the Illinois statutes. He was represented by court-appointed counsel (the Public Defender of Cook County), waived trial by jury and, after trial, was found guilty by the court and sentenced to the Illinois penitentiary for a minimum of ten and a maximum of twelve years (ten years was the minimum mandatory sentence in Illinois), where he is now confined.

Upon Lemon's appeal the conviction was affirmed by the Illinois Appellate Court. People v. Lemon, 70 Ill.App.2d 413, 218 N.E.2d 8. Other proceedings have been employed in attacking the judgment, which we need not relate as no question is raised here but that he exhausted any remedies provided by the State.

The instant proceeding originated by means of a petition for the issuance of a writ of habeas corpus filed in the United States District Court for the Northern District of Illinois, to which was attached the official record of the Cook County trial which had resulted in his conviction. On August 19, 1969, the District Court rendered its memorandum opinion and denied the issuance of the writ. From this order the appeal comes to this court.

At the State Court trial one of the witnesses was Roy Carter, an informer, who admitted on cross-examination that (1) he was a narcotics addict, (2) he had been convicted of possession of narcotics, (3) he had administered to himself a single dosage of narcotics on October 15, 1964, prior to meeting with the police officers, and (4) he had used narcotics on the day of the trial sometime prior to his testimony.

Petitioner on brief here states the issues for review as follows:

"1. Was the Relator denied Sixth and Fourteenth Amendment rights when at his trial no hearing was held to determine the competency of a witness who was a habitual user of narcotics, who had used narcotics just prior to the alleged crime, and who had administered narcotics to himself shortly before taking the witness stand?

"2. Was Due Process denied where the State\'s chief witness, an addict-informer who used drugs on the day of the transaction, was permitted to flout State and Federal narcotic laws and to testify while under the influence of a narcotic drug?"

We note that in the numerous proceedings initiated by petitioner in attacking the judgment of conviction, he makes here for the first time the contention that his constitutional rights were violated by reason of the trial judge's failure to conduct a voir dire examination to determine his competency to testify. No objection was made by his counsel on that ground. Neither was such an issue raised on his appeal to the Illinois Appellate Court.

Mr. James B. Haddad, court-appointed counsel, with much effort and research has furnished us an interesting treatise on the ill effects produced by the use of narcotics, particularly as they affect the mind of the user and his ability to tell the truth as a witness. We appreciate his service, but we are not persuaded that his argument on the facts of this case can be sustained.

Petitioner on brief points out numerous discrepancies in the testimony of Carter which it is argued should have alerted the trial court to the necessity of conducting a competency hearing. We have read all of the testimony heard by the trial judge, including that of Carter, and any discrepancies shown were of little if any consequence. In fact, a mere reading of Carter's testimony, corroborated as it was by other witnesses, makes it plain that there was no reason for the court to interrupt the hearing for the purpose of conducting a competency hearing.

Perhaps it is of some relevancy to state the facts heard by the trial court. On October 15, 1964, Carter met Chicago police officers Craig, Sullivan and Nadile at approximately 1:30 p.m., in front of Carter's apartment residence. After a brief conversation, they proceeded to his apartment, where Carter was stripped and searched in preparation for a controlled narcotics purchase. The officers found neither money nor narcotics on the person of Carter. Carter and the three officers then went to the lobby of the apartment where Carter held a brief phone conversation with defendant Lemon, after which Carter and the three officers entered the unmarked squad car. At that time Carter was given $44.00 of prerecorded money received by the officers from the 11th District Contingency Fund, and they drove to the vicinity of 16th and Keeler Avenue, Chicago.

At 16th and Keeler, officer Craig and Carter removed themselves from the squad car, officers Sullivan and Nadile remaining in the car. Carter stood at the corner of 16th and Keeler, Craig positioned himself in the middle of the 1500 block of South Keeler, and the squad car was moved to a safe distance. Defendant Lemon approached Carter at the corner of 16th and Keeler in a gray 1953 Oldsmobile. There was a brief conversation between Carter and Lemon in which Lemon instructed Carter to proceed to the vicinity of 16th and Tripp Avenue, Chicago. After a brief conversation with the officers, Carter proceeded to 16th and Tripp Avenue where he met Lemon standing in the doorway of a garage at 4236 West 16th Street, Chicago. At the doorway to the garage, Carter, within full view of officer Craig, purchased a tinfoil package of heroin from Lemon for $44.00 (the prerecorded funds). Carter, after handing the tinfoil package of heroin to officer Craig, on a prearranged signal directed officers Sullivan and Craig to the doorway of the garage where they arrested Lemon, searched him, and found the $44.00.¹

We have read the many authorities called to our attention which supposedly are relevant to the issues for decision, and reference to a few will suffice. In People v. Dixon, 22 Ill.2d 513, 177 N.E. 2d 224, relied upon by petitioner, the Illinois Supreme Court affirmed a conviction for the sale of narcotics on facts quite similar to those here. In that case the informer was an addict and prior to the trial had been committed to a state hospital for a 90-day treatment for her addiction. She was brought from the hospital and permitted to testify, over defendant's objection that her addiction raised a presumption that she was incompetent to testify. The court stated (page 515, 177 N.E.2d p. 225):

"The test of the competency of a witness is one of intelligence and understanding, (People v. Mueller, 2 Ill.2d 311, 118 N.E.2d 1,) and, in the absence of statute, one mentally affected or ill is not incompetent if he understands the nature of an oath, and has sufficient mental power to give a correct account of what he has seen and heard. People v. Enright, 256 Ill. 221, 99 N.E. 936; see: Wigmore on Evidence, 2 ed. sec. 501. As to narcotics addicts, a habitual user of drugs is

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