People v. Borawski , 61 Ill. App. 3d 774 ( 1978 )

Mr. PRESIDING JUSTICE EBERSPACHER

delivered the opinion of the court:

Defendant, Margarey Borawski, was charged in the circuit court of St. Clair County with the unlawful delivery of a controlled substance, methylphenidate (ritalin). Following a jury trial, she was found guilty as charged and sentenced to one year probation and fined $500. Defendant brings this appeal from the judgment entered.

On appeal defendant contends that: (1) certain errors were committed with regard to discovery; (2) errors were committed in the admission of certain evidence; and (3) she was not proven guilty beyond a reasonable doubt.

At trial, Agent James Lay of MEGSI (Metropolitan Enforcement Group of Southwestern Illinois) testified that at 8:45 p.m. on August 19,1975, he and Agent Dennis Sheldon drove to a residence, which Sheldon entered while Lay remained outside. Ten minutes later, Sheldon reappeared with a woman Lay identified as defendant. Sheldon spoke with defendant for one or two minutes and then returned to the car. At this time he showed Lay a plastic bag containing a quantity of pink tablets. Lay stated that the plastic bag of pills was marked for identification and given to an evidence officer.

Next, Agent Sheldon testified that prior to the instant transaction, he had purchased drugs from defendant on August 15 and again early in the day on August 19. He stated that during this second transaction he was told by defendant to return later that evening if he wished to buy ritalin. As agreed, he later returned and bought 50 tablets of ritalin for $50. He stated that defendant counted the 50 tablets from a prescription vial and placed them into a plastic bag. State’s exhibit No. 1 consisting of the bag and its contents was identified as that which was given to him by defendant. Sheldon stated that following the transaction, he and defendant discussed a possible future purchase of barbiturates after which Sheldon left. Sheldon further stated that he thereafter gave the bag and its contents to evidence officer Sam Kemp.

Agent Kemp then testified that he had received State’s exhibit No. 1 from Sheldon on August 25. On cross-examination he stated that he did not know the whereabouts of the bag and its contents between August 19, when it was purchased, and August 25, when it was turned over to him.

The State presented further evidence showing that the plastic bag contained 10.1 grams of methylphenidate.

On behalf of the defense, defendant testified that she was suffering from nerve damage as a result of an automobile accident and consequendy was prescribed ritalin to reheve her pain. She also stated that she had first met Sheldon in June 1975, at which time he had attempted to purchase drugs from her but she refused to sell. He returned in June and asked her out on a date but she refused. She stated that she again met him once or twice in August and once in September. On this last occasion he again offered to buy drugs from her but she stated that she refused to sell any. Defendant denied making the instant transaction and stated that she was not at home on the evening of August 19 but was out celebrating her brother’s birthday.

Turning first to defendant’s contentions concerning discovery, the record shows that the instant indictment was filed on February 19,1976. On February 27, defendant filed a motion for discovery which was answered by the State on March 12 listing Agent Sheldon as a possible witness. Thereafter the cause proceeded to trial on August 16. On the next day, after the State rested its case-in-chief and following a lunch break in the proceedings, defendant filed a motion to require the State to produce any evidence of “criminal complaints, arrest, conviction, or any pending criminal charge” against Sheldon. At an in-chambers conference on the motion, defense counsel stated that during the lunch break, there had been an “allegation” that Sheldon had been charged with rape and that he had been suspended from the police force at some point in the past. Defense counsel also stated that she was aware of no more but of this bare allegation. During the ensuing argument, the defense counsel took the position that the State was required to automatically disclose such information. The prosecutor stated, however, that he was certain that there were no criminal convictions of Sheldon and that, in fact, all the material in his file had been duplicated and given to the defense. The court nonetheless granted the defense motion and ordered the State to produce “any material that is of an impeaching nature as to Dennis Shel[d]on.” Further, while noting that the defense had previously been specifically offered an opportunity to interview the State’s witnesses, the court ordered the State to make Sheldon immediately available for an interview. This was done. However, upon being informed of the allegations against him, Sheldon refused to be interviewed by defense counsel without the presence of an attorney, or the State’s Attorney, to represent him. The court was so informed but the court noted that no private counsel was present who could represent Sheldon. In turn, defense counsel objected to conducting an interview in the presence of the State’s Attorney. The court thereupon determined to itself conduct an in-chambers interview of Sheldon. The court, however, limited its examination of Sheldon to the single inquiry of whether Sheldon had ever been convicted of a felony. Sheldon replied that he had not. The defense attorney then requested that the court ask Sheldon if any criminal complaint had been lodged against him and if he had ever been suspended from his duties as a police officer. The court refused to ask these questions stating that they would be “irrelevant for impeachment purposes.”

Upon this record, defendant now contends that the trial court erred in limiting her discovery of these matters. Citing People v. Mason, 28 Ill. 2d 396, 192 N.E.2d 835 (see also People v. George, 49 Ill. 2d 372, 274 N.E.2d 26; People v. Hanks, 17 Ill. App. 3d 633, 307 N.E.2d 638), defendant urges that such matters may have been a proper subject of impeachment and consequently were well within the proper scope of discovery. Further, defendant argues that the court “had no reason to limit defendant’s legitimate question for evidence.”

Under Supreme Court Rule 412 (Ill. Rev. Stat. 1975, ch. 110A, par. 412), the burden rests squarely upon the defendant, within limits (Supreme Court Rule 412(c)), to pursue and ascertain any relevant information in the preparation of his defense, and not upon either the court or the State. In the instant case, any current pending charges against Sheldon, if such existed, were a matter of public record which could be easily obtained. So too, any suspension of Sheldon as a police officer, if such occurred, was subject to easy ascertainment. With regard to this second matter, we note that Sheldon testified that he was, and had been, a police officer for six years. Any question remaining as to his status could have been explored during the defense cross-examination of him. The record shows that the defense had ample time to investigate Sheldon since, long before trial, the State listed his name as a potential witness. Further, before Sheldon had testified at trial, the defense was afforded an ample opportunity to interview Sheldon. Defendant simply failed to investigate the matters in question until the State rested its case at trial.

Defendant’s contention herein is premised on the assertion that the lower court limited defendant’s attempt to discover relevant evidence. This assertion is not supported by the record. Despite defendant’s untimely motion to produce, which the court could have denied (People v. Schabatka, 18 Ill. App. 3d 635, 310 N.E.2d 192, cert, denied, 420 U.S. 928, 43 L. Ed. 2d 400, 95 S. Ct. 1128; People v. Robinson, 13 Ill. App. 3d 506, 301 N.E.2d 55), the court nonetheless granted the motion. The prosecutor’s representation to the court that the State had no other relevant evidence not already disclosed, was not challenged by defendant and no dispute is here raised that the State concealed any such evidence. Defendant’s contention, however, is directed more toward the attempt to interview Sheldon. But it was not the court which refused the requested interview, indeed the court ordered that Sheldon be made immediately available for an interview. Rather, it was Sheldon who refused to be privately interviewed by defense counsel, and it was defense counsel who refused to conduct an interview under Sheldon’s stated terms. While a defendant is entitled to a fair opportunity to interview prosecution witnesses, this right extends only to the opportunity itself since a court cannot compel a witness to answer questions submitted by defense counsel. (People v. Jackson, 116 Ill. App. 2d 304, 253 N.E.2d 527; People v. Lewis, 112 Ill. App. 2d 1, 250 N.E.2d 812.) In fact the court had, in effect, compelled Sheldon to answer the question of whether he had ever been convicted of a felony. That the court refused to ask the additional questions posed by the defense attorney, without regard to its reasons for so refusing, could not constitute error since the court was under no obligation to examine Sheldon from the start. If the information at issue existed at all, it was the duty of the defendant, not the court, to ascertain it. The trial court took every step at its disposal to aid defendant in her discovery despite the lateness of the attempt. If the information existed but remained unrevealed, fault lies with defendant, not with the court.

Defendant also contends that the State improperly failed to disclose a police report by Sheldon concerning a prior drug transaction which had taken place on August 15,1975. The State disputes whether the report was specifically requested in defendant’s discovery motion,

The record shows the following cross-examination of Sheldon by defense counsel Judy Rau:

“Q. Did you make a report of your activities on the 15th?

A. Yes, ma’am.

Ms. Rau: Your Honor, may we approach the bench, please?

The Court: Yes.

(Conference out of the hearing of the jury.)”

The record is silent as to any ensuing discussion and it does not indicate that the issue, now asserted, was raised at any time before defendant filed a motion for a new trial. Assuming, arguendo, that the report was properly requested but not disclosed, the failure of defendant to seek any redress on this basis, constitutes a waiver thereof. People v. Dees, 46 Ill. App. 3d 1010, 361 N.E.2d 1125; People v. Wilson, 32 Ill. App. 3d 842, 336 N.E.2d 92; People v. Myers, 20 Ill. App. 3d 83, 312 N.E.2d 741; People v. Lanier, 98 Ill. App. 2d 89, 240 N.E.2d 288.

Next defendant contends that there was error in the admission of testimony by Sheldon concerning the two prior drug transactions on August 15, and a third prior transaction early in the day on August 19. Further, that it was error for Sheldon to testify that, immediately following the instant charged drug transaction, defendant discussed with Sheldon a possible future drug sale.

Evidence of criminal acts of misconduct of a defendant, which are unrelated to the charged crime, is inadmissible because such evidence too strongly raises an unfair inference of the accused’s propensity for crime. (People v. Lehman, 5 Ill. 2d 337, 125 N.E.2d 506; People v. Romero, 66 Ill. 2d 325, 362 N.E.2d 288.) Such evidence, however, may be admitted where it has substantial independent relevance, such as to show motive, intent, identity, the absence of mistake or accident, or the existence of a common scheme or design, and where its probative value for such a purpose clearly outweighs its prejudicial impact. People v. McDonald, 62 Ill. 2d 448, 343 N.E.2d 489; People v. Butler, 31 Ill. App. 3d 78, 334 N.E.2d 448.

We do not find in the instant case that the trial court abused its discretion in admitting the evidence of prior drug transactions between Sheldon and defendant since such was of value in showing the established relationship between the two and in explaining the ease with which Sheldon was able to purchase the ritalin on the evening in question. (People v. Cole, 29 Ill. 2d 501, 194 N.E.2d 269; People v. Brady, 14 Ill. App. 3d 830, 303 N.E.2d 528.) Further such evidence strengthened Sheldon’s identification of defendant by showing his extensive opportunities to observe defendant. (People v. Davis, 14 Ill. 2d 196, 151 N.E.2d 308; People v. Butler.) For similar reasons, we find no error in the admission of the testimony that at the close of the instant transaction, defendant discussed a possible future sale. Moreover, this discussion was but a part of the full circumstances attending the commission of the crime and the testimony thereof served to give a complete picture of the transaction. (People v. DePompeis, 410 Ill. 587, 102 N.E.2d 813; People v. Walls, 33 Ill. 2d 394, 211 N.E.2d 699.) While we note that the record does not indicate that a limiting instruction was given to the jury, it also does not show that one was tendered by defendant.

After the State had rested its case-in-chief at trial, at the same in-chambers conference in which defendant presented her motion to produce which was previously discussed, defendant also presented a “motion to withdraw State’s exhibit No. 1” objecting to the admission of the plastic bag and its contents on the grounds that there was a six-day “gap” in the proof of the chain of custody thereof. No objection had been raised by defendant at the time this evidence had been admitted. In denying the motion, the court stated in part that since the evidence had been admitted, and was done so without objection, to reverse that ruling would be unfair to the State and confusing to the jury.

On appeal, defendant contends that the court erred in admitting this evidence. However, since defendant’s objection had been raised after the State had rested its case, it came too late and the admissibility of the evidence cannot now be questioned. (People v. Anthony, 28 Ill. 2d 65, 190 N.E.2d 837; People v. Polk, 19 Ill. 2d 310, 167 N.E.2d 185.) Nor do we find that the trial court abused its discretion in denying defendant’s motion to strike. The alleged gap in the chain of possession involved the period between August 19 and August 25. The record shows that during this period the plastic bag and its contents remained in the possession of Sheldon. However, he failed to explain how or where the evidence was kept during this time. Had an objection been promptly raised, the State would have had an opportunity to cure this failure. Nonetheless, nothing in the record suggests the possibility of tampering. Both Lay and Sheldon testified that when they obtained the evidence they placed a piece of paper containing their initials and the date into the plastic bag. Kemp stated that when it was turned over to him, he found that the plastic bag was “sealed” (although we note that chemist James Flynn, who in turn received the evidence from Kemp, described it as having been “tied”). Further, Lay and Sheldon testified at trial that the plastic bag and its contents appeared to be in substantially the same condition as at the time of the charged transaction. Absent any indication of substitution or other tampering, we find that a sufficient foundation was established under the circumstances. People v. Harper, 26 Ill. 2d 85, 185 N.E.2d 865.

Lastly, defendant contends that her guilt was not proven beyond a reasonable doubt. Upon a careful review of the record we find ample evidence supporting the jury’s verdict. Accordingly, the judgment entered by the circuit court of St. Clair County is affirmed.

Affirmed.

JONES, J., concurs.