dissenting:
The defendant first contends that the trial court erred in admitting into evidence a plastic bag containing the controlled substance allegedly received from the defendant. In support of her contention she cites the insufficiency of the State’s proof regarding the chain of possession of the evidence from the time of its receipt by the investigating agent to the time of its delivery at the police station. From the testimony of the two investigating agents as well as that of the evidence officer, it appeared that there existed an unexplained six-day hiatus in the chain of custody. A former MEGSI (Metropolitan Enforcement Group of Southwestern Illinois) agent, Dennis Sheldon, testified that he received the controlled substance from the defendant at approximately 8:30 p.m. on August 19, 1975, that he and Officer Lay initialed and dated a piece of paper and that he placed the paper in the plastic bag. He admitted that he had not counted the tablets in the bag, although he had reported the quantity to be 50 tablets of ritalin. Sheldon and Lay both testified that Sheldon later delivered the plastic bag to Officer Kemp, the evidence officer. Kemp testified that he did not receive the bag from Sheldon until August 25, six days after the alleged purchase of the drugs. There was no evidence contradicting this crucial sequence of events. Criminologist James Flynn, who performed a chemical analysis of some tablets he received from Kemp on August 26,1975, stated that the plastic bag had simply been tied in a knot.
At the close of the case in chief, the State offered into evidence the plastic bag and its contents. At that time defense counsel made no objection to its admission, whereupon the State rested and the court immediately recessed for lunch. After reconvening at 1 p.m., defense counsel promptly presented a written motion to strike the evidence and after that motion was denied, she made an oral motion for a directed verdict, citing the inadequate demonstration of chain of custody as specific grounds therefor. The trial court denied the motion, stating that to change its ruling would be unfair to the State and could somehow confuse or influence the jury. The court explained that it felt Sheldon had specifically testified that he delivered the plastic bag to Kemp on the 19th. Thus, in the trial court’s opinion, there merely existed a question of witness credibility to be decided by the jury. I have carefully reviewed both Sheldon’s and Lay’s testimony and nowhere did either of them state that Sheldon delivered the package to Kemp on a particular date. Neither did they explain where or how the drugs were kept during the six-day interval. It must be assumed that during this time the bag containing the contraband remained unsealed. Moreover, no one along the chain actually counted the tablets themselves. An essential element in the proof of chain of possession is safekeeping. (People v. Judkins, 10 Ill. 2d 445, 140 N.E.2d 663.) These facts do not, in my opinion, demonstrate safekeeping of the contraband between August 19, 1975 and August 25, 1975. Unlike the procedure employed in People v. Anthony, 28 Ill. 2d 65, 190 N.E.2d 837, and People v. Washington, 41 Ill. 2d 16, 241 N.E.2d 425, the bag containing the narcotics was not sealed and properly delivered to the crime laboratory. The court in People v. Hanson, 44 Ill. App. 3d 977, 359 N.E.2d 188, stated:
“When contraband is sought to be introduced, the State must show a sufficient chain of custody to negate any possibility of tampering or substitution.” (44 Ill. App. 3d 977, 984.)
(See also People v. Woessner, 132 Ill. App. 2d 58, 268 N.E.2d 508.) Under these circumstances, I feel the opportunity for tampering with the evidence could certainly be inferred.
While generally the admission of incompetent evidence must be objected to at the time of its tender into evidence (14A Ill. L. & Prac. Criminal Law §552 (1968)), the defense counsel’s motion to withdraw was in substantial compliance with the general principle under the facts presented. The principal purpose of an objection in this situation is to advise the court of the incompetency of the proffered evidence. (People v. Newman, 261 Ill. 11, 103 N.E. 589.) While the evidence should have been objected to when offered as an exhibit, the error was brought to the court’s attention immediately after the lunch recess, a time at which opportunity to cure the error still existed. In fact, the motion was made prior to the commencement of the defendant’s case in chief so that any prejudice to the State would have been minimal. Certainly, the State could have re-opened its case and recalled Sheldon to explain the six-day break in the chain of possession of the drugs.
I acknowledge that the court’s decision to strike evidence is discretionary (23A C.J.S. Criminal Law §1071 (1961); Morella v. People, 226 Ill. 388, 80 N.E. 903); however, I feel that under these facts the trial court abused that discretion. The totality of the evidence casts considerable doubt on the competence of the drugs; thus, it was patently unjust to deny the defendant’s motion to strike the exhibit. I would therefore remand this cause for a new trial.
The State argues that since the tablets were adequately identified at trial, the chain of possession is immaterial. While identification is an alternate method of proof in such a situation (People v. Sansone, 42 Ill. App. 3d 512, 356 N.E.2d 101), the identification must be positive, especially in narcotics cases where frequent errors in identification occur. (People v. Maurice, 31 Ill. 2d 456, 202 N.E.2d 480.) Here the witnesses’ testimony concentrated more upon the identification of the initialed paper inside the bag than upon the bag itself. The color of the tablets was described in varying ways and each witness admitted that he had not counted the tablets. These factors coupled with the opportunity for tampering with an unsealed bag rendered the witnesses’ identification inconclusive.
Defendant also contends that she was improperly restricted in her attempt to discover evidence which might have shown bias or prejudice on the part of Sheldon. During the lunch recess immediately following the close of the State’s case, the defense counsel learned that Sheldon, the sole occurrence witness, may have been suspended from the police force and accused of rape. She had no particulars. Although the court granted defense counsel an opportunity to interview the witness, it limited the questioning to actual convictions of felonies. Counsel argued that the witness’s suspension from the police force would tend to show bias or prejudice; however, the court apparently felt that only prior convictions could be used for impeachment purposes. I agree with defendant that she should have been granted an opportunity to ascertain Sheldon’s current status with the police department as that status could establish bias or prejudice; yet, the discovery should have been allowed for another reason as well. Prior to defense counsel’s knowledge of the suspension, the following colloquy occurred on direct examination:
“Q. State your name and department, please?
A. Dennis Shelton [sic] city of O’Fallon.
Q. And what is your occupation?
A. Police officer.
Q. I will ask you if you had occasion to be an agent or an officer loaned to the MEGSI unit?
A. Yes, sir, I did.
Q. And were you an officer of O’Fallon before you went to MEG?
A. Yes, sir.
Q. And served the tour of duty with the MEGSI and came back to O’Fallon?
A. Yes, sir.”
On cross-examination, the following occurred:
“Q. How long have you been a police officer?
A. Since 1970
Q. Since 1970. Let’s see, then you have been a police officer for six (6) years?
Q. Yes, maam.”
Clearly, this testimony gave the jury the impression that the witness was still a police officer in good standing at the time of the trial. ABA Standards, Discovery and Procedure Before Trial §1.2, provides:
“In order to provide adequate information for informed pleas, expedite trial, minimize surprise, afford opportunity for effective cross-examination, and meet the requirements of due process, discovery prior to trial should be as full and free as possible consistent with protection of persons, effective law enforcement, the adversary system, and national security.”
Section 2.3 provides:
“Except as is otherwise provided * * *, the prosecuting attorney shall, upon request of defense counsel, disclose and permit inspection, testing, copying and photographing of any relevant material and information regarding:
# # e
(c) The relationship, if any, of specified persons to the prosecuting authority.”
That the discovery was requested during the trial is of no consequence in view of the particular facts of the case.
It has been said that the purpose of discovery is broader than the mere acquisition of evidence — it encompasses the obtaining of information as well. (2 Wharton’s Criminal Evidence §671 (1972 Supp.).) Here the requested information would have been relevant not only to expose bias on the witness’s part, but also to impeach the implication in his direct testimony that he was currently a police officer. Since discovery was disallowed as to a possible suspension from the police force and accusation of rape against Sheldon, we do not know whether such actions had in fact been taken. Nonetheless, it is unthinkable that the defendant was not permitted to discover this information which was so potentially crucial to her case. In People v. Strother, 53 Ill. 2d 95, 290 N.E.2d 201, the supreme court held that examination during trial of the witness’s arm to detect evidence that he was a narcotics addict should have been allowed. The court stated:
“The accused has a right to cross-examine a witness concerning any matter which goes to explain, modify or discredit what he said on direct examination* * *. * * * In our judgment defense counsel was entitled to examine Bradley’s arm for the presence of needle marks and to exhibit the same to the jury if so desired. It is our opinion that inasmuch as Bradley’s credibility was the crucial factor in the determination of this case, there being insufficient independent evidence in the record to establish defendant’s guilt, the trial court’s rejection of defense counsel’s request to examine the informant’s arm was an abuse of discretion and prejudicial error. (People v. Lewis (1962), 25 Ill. 2d 396.)” (52 Ill. 2d 95, 99.)
Similarly, I find the trial court abused its discretion when it denied the discovery requested here. If the defendant’s information was indeed accurate, I believe the State should have made this disclosure. Since Sheldon was the sole occurrence witness and since part of the defendant’s theory of the case was that Sheldon had fabricated the alleged transaction after the defendant refused to go out with him, his testimony was further suspect. I believe that where, as here, the State’s case rests upon the testimony of one witness, great latitude should be afforded such matters as discovery for impeachment purposes.
Defendant next contends that it was error for the court to allow testimony concerning prior and future drug transactions between Sheldon and the defendant. While it may be, as the State argues, that evidence concerning prior drug transactions is admissible to establish the relationship between the two and to establish the ease with which Sheldon was able to purchase the drugs on the day in question (People v. Cole, 29 Ill. 2d 501, 194 N.E.2d 269), such reasoning cannot justify admission of the evidence concerning offers for future sale. Surely this would only serve to prejudice the defendant. In addition, the record fails to disclose that a limiting instruction was given on this point as was the case in Cole.
In light of the prejudicial errors committed at trial, I would remand this cause for a new trial.