People v. KimbroughPeople v. Kimbrough
Lead Opinion
delivered the opinion of the court;
Thе defendant, Michael Kimbrough, was charged in a three-count indictment with certain violations of the Illinois Controlled Substances Act (
The record on appeal reveals that, on March 12, 1992, defendant allegedly delivered approximately 94 to 96 separate segregated segments containing LSD (microdots) to a police officer. The combined weight of the 94 or 96 microdots was approximately 0.4 grams. Thereafter, defendant was arrested by Brookfield police.
Following defendant’s arrest, a grand jury returned a three-count indictment charging defendant with certain violations of the Controlled Substances Act (Act) (
Count II of the indictment charged defendant with the unlawful possession of 100 segregated parts of a substance containing LSD. Count II, however, erroneously cited
Count III of the indictment charged defendant with the unlawful possession of 0.4 grams of LSD in violation of
The statutory provisions at issue in this appeal are found in
As stated, defendant challenges the constitutional validity of these sections of the Act, arguing that the legislative classification, which is based upon the form of LSD that a defendant delivers or possesses, is arbitrary and unreasonаble. Therefore, defendant argues, these provisions violate the equal protection and due process clauses of both the Federal and State Constitutions.
Before addressing the defendant’s constitutional challenges, we briefly describe the relevant statutory provisions. Under
"(i) 15 grams or more but less than 100 grams of any substance containing *** (LSD) ***, or (ii) 15 or more objects or 15 or more segregated parts of an object or objects but less than 200 objects or 200 segregated parts of an objeсt or objects containing in them or having upon them any amount of any substance containing *** (LSD) ***.” (Emphasis added.) (720 ILCS 570/401(a)(7)(A) (West 1992).)
"(i) 5 grams or more but less than 15 grams of any substance containing *** (LSD) ***, or (ii) more than 10 objects or more than 10 segregated parts of an object or objects but less than 15 objects or less than 15 segregated parts of an object containing in them or having upon them any amount of any substance containing *** (LSD) ***.” (Emphasis added.) (720 ILCS 570/401(c)(7) (West 1992).)
Under
"(i) 15 grams or more but less than 100 grams of any substance containing *** (LSD) ***, or (ii) 15 or more objects or 15 or more segregated parts of an object or objects but less than 200 objects or 200 segregated parts of an object or objects containing in them or having upon them any amount of any substance containing *** (LSD) ***.” (Emphasis added.) (720 ILCS 570/402(a)(7)(A)(i) , (a)(7)(A)(ii) (West 1992).)
Under
We now address defendant’s claim that this statutory scheme violаtes the equal protection and due process clauses of both the Federal and State Constitutions.
I. CONSTITUTIONALITY
It is well established that all statutes are presumed to be constitutionally valid. (People v. Shephard (1992),
A. Equal Protection
The constitutional right to equal protection of the law guarantees that the State must treat similarly situated persons in a similar manner. (Shephard,
Where a statutory classification neither impinges on a fundamental constitutional right nor is based on a "suspect” class, such as race, a court will use the "rational basis” test to review the statute’s validity. (Reed,
Initially, defendant argues that the LSD provisions violate equal protection because the classifications arising from the grams/objects
We reject defendant’s argument. Under the rational basis test, the grams/objects classifications are constitutional if any state of facts can reasonably be conceived to justify the classifications. (Shephard,
"According to the Sentencing Commission, the LSD in an average dose weighs 0.05 milligrams; there are therefore 20,000 pure doses in a gram. The pure dose is such an infinitesimal amount that it must be sold to retail customers in a 'carrier. ’ Pure LSD is dissolved in a solvent such as alcohol, and either the solution is sprayed on paper or gelatin, or paper is dipped in the solution. The solvent evaporates, leaving minute amounts of LSD trapped in the paper or gel. Then the paper or gel is cut into ’оne-dose’ squares and sold by the dose. Users either swallow the squares, lick them until the drug is released, or drop them into a beverage, thereby releasing the drug.” (Emphasis added.) Chapman v. United States (1991),500 U.S. 453 , 457,114 L. Ed. 2d 524 , 533,111 S. Ct. 1919 , 1923. In enacting legislation designed to curb the distribu-
tion of LSD, the legislature was required to acknowledge and act upon the fact that LSD is more easily and commonly distributed in carrier/object form, rather than gram form. In reference to the carrier/object form of distribution of LSD, our appellate court has stated:
”[I]t is not the amount [weight] of the drug that becomes important but the ease of distribution of the drug in the carrier form. Without focusing on the number of carriers [objects], the intent of the legislature to eradicate the heavy traffickers in LSD could never be realized. The more objects, regardless of what they weigh, the more LSD that can be sold to more ’customers.’ The distribution becomes more widespread as a result, regardless of actual weight.” People v. Sonntag (1992),238 Ill. App. 3d 854 , 860.
In order to effectively address distribution and possession of LSD, the legislature could reasonably decide to classify offenses according to the number of "carriers” (objects or segregated parts of an object) that an offender delivers or possesses. This determination is obviously rationally related to the legislature’s intent to deter the unlawful distribution and consumption of LSD, since LSD is most commonly sold to and used by drug abusers via carriers. In this case, defendant himself allegedly delivered and possessed over 90 microdots of LSD, which are objects or carriers. The object classification is, in reality, the only way the legislature could effectively address widespread distribution of LSD to the public at the "retаil” level.
Moreover, it was equally necessary and rational for the legislature to retain the gram classifications in the statutory provisions. Without the gram classifications, the large scale "wholesalers” and major distributors
Finally, we find that, because LSD is normally used and distributed in an object/carrier form, the legislature could reаsonably have determined that LSD reduced to the carrier form is more dangerous to the public health and safety than pure, liquid LSD. This is so because it is through the carrier form that widespread distribution, sale, and abuse of the drug take place. It is much easier and more common to sell, transport, store, conceal and use LSD in the carrier form. Thus, the legislature reasonably could determine that it is more dangerous to society when an offender possesses or delivers 100 objects containing LSD (100 doses) than if the offender possessed or delivered onе gram of pure, liquid LSD (potentially 20,000 doses). Therefore, the legislature had a rational basis to punish offenders with smaller quantities of LSD, reduced to object /carrier form, more severely than offenders with greater quantities of the pure, gram form of LSD. Accordingly, we hold that the statutory classification of offenses based on grams and objects is rationally based and reasonably related to the legislative goal of combatting the widespread distribution, possession, and consumption of LSD.
Defendant next argues that the LSD statutory scheme which utilizes the grams/objеcts classifications violates equal protection in that it treats similarly situated individuals differently. Defendant asserts that, depending upon whether a charge is based upon grams or objects, similarly situated offenders will receive different penalties. Defendant notes that an offender who delivers 100 objects containing LSD which have a combined weight of 0.4 grams could be charged with a Class X felony pursuant to
We reject this argument as well. As stated, a court has a duty to construe a statute in such a manner as to affirm its validity if reasonably possible. Pursuant to this duty, we construe the statute as requiring the prosecutor to charge an accused who delivered/possessed carriers of LSD (objects or segregated parts of an object containing LSD) pursuant to the statutory provisions pertaining to objects or segregated parts of an object. If the LSD is not reduced to carrier form, the accused must be charged based upon the gram classifications. Construed in this manner, any doubts concerning the statute’s constitutional validity are resolved in favor of upholding the statute. Pursuant to our construction, the statutory provisions treat identical conduct equally. Therefore, we hold that these provisions do not violate the guarantee of equal protection of the law.
B. Due Process
Defendant further argues that the grams/objects classifications violate the due process guarantees of the Federal and State Constitutions.
The standard used to determine whether a statute violates the due process clause is " 'whether the statute is reasonably designed to remedy the evils which the legislature has determined to be a threat to the public health, safety and general welfare.’ ” (People v. Bradley (1980),
We have previously held above that the grams/ objects statutory scheme is reasonably based upon and rationally related to the State’s legitimate goal of combatting the widespread distribution, possession, and consumption of LSD. Therefore, we hold that the statutory provisions at issue сomport with substantive due process.
Defendant argues, however, that the statutory scheme violates due process because it allows the State to punish the less culpable conduct of possession more severely than the more culpable conduct of delivery. In support of his contention, defendant asserts that an accused, like himself, who is arrested with 94 to 96 microdots which have a combined weight of 0.4 grams could be charged with a Class 1 felony for the unlawful possession of LSD pursuant to
Defendant further argues that the statutory provisions violate due process because they are vague and will result in arbitrary and erratic prosecutions. This is so, defendant contends, because law enforcement officials and the prosecution can arbitrarily decide whether to charge defendants based uрon grams or objects.
We reject both of defendant’s due process challenges to the legislation at issue. We have previously construed the statute as requiring that, if the accused is apprehended with LSD reduced to carrier form, he must be charged pursuant to the carrier or object provisions in the statutory scheme. If, on the other hand, the accused is apprehended with LSD that has not been reduced to carrier form, he must be charged pursuant to the gram provisions. This requirement extends to both the delivery and possession provisions. Under this construction, if the accused allegedly had objects or segregated parts of an object containing LSD, he must be charged with delivery and/or possession pursuant to the objects provisions. Therefore, an accused will never be subjected to a more severe penalty for possession than for delivery. Additionally, our construction removes any possibility of discretion on the part of law enforcement officers or the prosecution in charging defendants with violations of the LSD provisions based upon grams or objects.
In light of the аbove, we hold that the LSD provisions of the Act comport with the constitutional guarantees of equal protection and due process. Because we find that the LSD provisions are constitutional, we reverse the trial court’s order finding that the provisions are unconstitutional and dismissing the indictment.
II. DISMISSAL OF THE INDICTMENT
Because we reverse the trial court’s order dismissing the indictment against defendant, we will address an issue concerning count II of the indictment which was raised by the parties on appeal. Count II of the indictment charged defendant with the unlawful possession of 100 segregated parts of a substance containing LSD, which is a violation of
The State responds that count II of the indictment charges defendant with unlawful possession of LSD. The State contends that count II contains merely a formal defect in thаt it erroneously cites
A formal defect in an indictment may be corrected at any time upon motion by either party. (People v. Campbell (1968),
"An indictment, information or complaint which charges the commission of an offense in accordanсe with Section 111 — 3 of this Code shall not be dismissed and may be amended on motion by the State’s Attorney or defendant at any time because of formal defects, including:
(a) Any miswriting, misspelling or grammatical error.” (725 ILCS 5/111 — 5 (West 1992).)
Accordingly, if the defect in the indictment is merely a formal defect and amendment would not constitute a substantive change, the waiver rule does not apply and amendment at any time is proper.
In the instant case, count II of the indictment specifically charges defendant with possession in both the type of charge listed as well as in the language of the charge itself. Thus, it is clear that the citation to a delivery provision was merely a formal defect or a typographical error. Under these circumstances, the State may properly amend the indictment on remand and insert the proper statutory provision.
We now turn to an issue concerning count III of the indictment. Count III charges defendant with possession of 0.4 grams of LSD in violation of
For the reasons stated, we reverse the trial court’s order finding the LSD provisions of the Act unсonstitutional. We also reverse the trial court’s dismissal of counts I and II of the indictment. We affirm the trial court’s dismissal of count III of the indictment and we remand this cause for further proceedings consistent with this opinion.
Judgment affirmed in part and reversed in part; cause remanded.
Notes
We note that all three counts of the indictment erroneously track the language of the 1989 statute as amended by Public Act 86 — 604. This is not problematic because this appeal involves the constitutionality of classifications within the LSD provisions of the Controlled Substances Act. The classifications encompassed in the 1989 and the 1992 versions of the Act are substantially the same. For ease of discussion, we cite to and discuss the 1992 statute in this appeal. Because this action is in the pretrial stage, the State, on remand, is entitled to and should amend the indictment to conform to the language of the 1992 statute.
Concurrence Opinion
concurring:
I agree with the court that the statutes at issue here are constitutional. I do not agree, however, that the provisions would be invalid in the absence of the limiting construction adopted by the majority, and for that reason I write separately.
The defendant was indicted for the delivery and possession of lysergic acid diethylamide (LSD), violations of
The majority correctly rejects all three contentions. In the course of its discussion, however, the majority unnecessarily adopts a limiting construction, concluding that the State must prosecute the delivery or possession of objects containing LSD under the objects provisions of the statutes and must prosecute the delivery or possession of bulk, unified quantities of the drug under the grams provisions of the statutes. Only in this way, says the majority, can the constitutionality
In general, the statutes at issue here punish the delivery or possession of multiple objects containing LSD more severely than the delivery or possession of an equivalent weight of the substance in unified, bulk form. Separation of the drug into object form facilitates its illegal distribution and sale (see Chapman v. United States (1991),
Once the validity of this legislative goal is recognized, the only question that remains is whether the potential overlap allegеd by the defendant between these provisions renders them unconstitutional. Leaving to one side the question whether the legislature intended for offenses committed in object form to be prosecuted by weight rather than number, I think it is clear that the existence of overlapping criminal statutes violates no constitutional requirement. Accordingly, I find no need for the limiting construction adopted by the majority in today’s opinion.
As I stated in my dissent in People v. Christy (1990),
In Batchelder, the Supreme Court construed two overlapping Federal statutes proscribing the receipt of a firearm by a convicted felon. The Supreme Court found no constitutional bar to prosecution of the defendant under the provision imposing the greater punishment. Rejecting the contention that the overlap between the statutes made them unconstitutionally vague, the Court stated:
"Although the statutes create uncertainty as to which crime may be charged and therefore what penalties may be imposed, they do so to no greater extent than would a single statute authorizing various alternative punishments. So long as overlapping criminal provisions clearly define the conduct prohibited and the punishment authorized, the notice requirements of the Due Process Clause are satisfied.” Batchelder,442 U.S. at 123 ,60 L. Ed. 2d at 764 , 99 S. a. at 2204.
The Batchelder Court also ruled that the discretion afforded to the prosecutor by the existence of the twо measures was not an infringement of equal protection or due process. The Court observed that it had "long recognized that when an act violates more than one criminal statute, the Government may prosecute under either so long as it does not discriminate against any class of defendants” (Batchelder,
"[TJhere is no appreciable difference between the discretiоn a prosecutor exercises when deciding whether to charge under one of two statutes with different elements and the discretion he exercises when choosing one of two statutes with identical elements. In the former situation, once he determines that the proof will support conviction under either statute, his decision is indistinguishable from the one he faces in the latter context.” Batchelder,442 U.S. at 125 ,60 L. Ed. 2d at 765 ,99 S. Ct. at 2205 .
In light of this precedent, and of the decisions of this court in People v. Wade (1989),
JUSTICE McMORROW joins in this concurrence.