ILLINOIS APPELLATE COURT FIRST DISTRICT, FOURTH DIVISION.
MAY 6, 1964.
THE PEOPLE OF THE STATE OF ILLINOIS, DEFENDANT IN ERROR,
JOSEPH B. HATCH, PLAINTIFF IN ERROR.
Writ of error to the Criminal Court of Cook County; the Hon.
CHARLES S. DOUGHERTY, Judge, presiding. Affirmed.
MR. JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT:
Defendant, Joseph Hatch, was convicted of the sale of narcotics in a bench trial before the Criminal Court of Cook County. The trial judge imposed a sentence of ten years to ten years and one day imprisonment, and from the judgment entered on this sentence defendant appeals.
On June 25, 1958, one Marzell Spurlark, a narcotics addict and a paid informer working on a per diem basis for the Federal Narcotics Bureau, was contacted by Agent Garrette Wimpey of the Bureau. Agent Wimpey, with whom Spurlark had worked before, told the latter that he wanted to make a "contact" but did not specify Hatch. Hatch and Spurlark lived across the street from each other and had been good friends for a period of about seven years since they first met as inmates at the House of Correction where each was serving time for possession of narcotics. Spurlark knew that Hatch was also an addict and informed Wimpey that they had once "shot up" together.
Agent Wimpey testified that at about 4:30 p.m. he went to the vicinity of defendant's home, followed by another Federal agent, and there met Spurlark and Hatch. Hatch testified that as he was leaving his home he was suddenly hailed by Spurlark who was sitting with Wimpey in a car parked in front of the house. In any event, Spurlark introduced Wimpey as a friend of his who wanted some "stuff." Spurlark, called as the court's witness, testified that he told the defendant that Wimpey was also an addict. This Wimpey denied, testifying that he told the defendant that the purchase was "strictly business." Wimpey said to the defendant: "Sonny (Spurlark) tells me you can do me so [sic] good." Wimpey testified that Hatch immediately replied, "Yes, I can take care of you. What do you want?" The agent further testified that he told Hatch he wanted one ounce of heroin and that Hatch said it would cost $140 plus $26 for him. Hatch, however, testified that he said he didn't know whether he could get the narcotics but told Wimpey that he would try. The informer's version closely resembles defendant's.
The threesome then proceeded in Wimpey's car to 53rd and Prairie in Chicago where the defendant got out and walked away. He returned several minutes later and, according to Wimpey's testimony, announced that his supplier had to go get the stuff and that it would be about thirty minutes. The three men drove around Chicago for ninety minutes and then returned to 53rd and Prairie. Hatch again left the car, returning shortly to say that it would be another few minutes.
The defendant again visited his source of supply several minutes later and, according to his testimony, was accompanied by Spurlark. Spurlark denied that he left the car until after the sale was consummated. Nevertheless, it is agreed that when the defendant returned to the auto he got into the back seat with the informer Spurlark who then purportedly said, "My man wants to see what he's getting. Let's go someplace too [sic]." Agent Wimpey, who was alone in the front seat, drove off and parked in an alley. He testified that upon stopping he turned around and saw the defendant pass to Spurlark a small envelope which it was stipulated contained heroin. Spurlark immediately handed the envelope to Wimpey.
At this point there is a serious conflict in testimony as to how the money for the heroin passed. Agent Wimpey testified that he gave $140, the price agreed upon, directly to defendant, and that Hatch then asked for five dollars for "his trouble." (This, defendant urges, is improbable in view of the fact of Wimpey's earlier testimony that the parties had already agreed upon $140 plus $26 for Hatch.) Hatch, however, testified that when the agent offered him some money for arranging the sale he said, "He don't owe me nothing"; that the agent gave $145 to Spurlark, and that only subsequently did he accept five dollars from the informer. Spurlark testified that the agent gave Hatch nothing extra for the sale. The agent testified that after paying the $140 plus five dollars to Hatch, Hatch and the informer left the car together. After the transfer of the money, according to Hatch, Spurlark accompanied him to his source of supply to make payment for the delivery.
During the next two months Spurlark attempted to get defendant to make further sales but the latter consistently refused to do so. Hatch was not arrested until August 22nd, which was almost two months after the incident in question. Agent Wimpey stated that the reason for the delay in arrest was that he left on vacation soon after the incident; that this was followed by his military leave; and that upon his return on about August 1st he believed that the defendant was hiding out on a "shoplifting rap." He admitted that during this time he did not make any attempt to arrest the defendant, that he did not even visit the defendant's home to attempt to locate him. Moreover, Wimpey further testified that no new information was gained through the arrest of the defendant, that the man who he believed was defendant's source of supply had been arrested, but that the agent was already aware of this source of supply and that the incident leading to defendant's arrest was not the beginning of the knowledge that he had of the dealings of Hatch's supplier.
The sole defense relied on by the defendant at the trial as well as on appeal was that the facts established an entrapment as a matter of law.
Entrapment has been defined by the Supreme Court of the United States in the following terms: "Entrapment is the conception and planning of an offense by an officer, and his procurement of its commission by one who would not have perpetrated it except for the trickery, persuasion, or fraud of the officer." Sorrells v. United States, 287 U.S. 435, 454; Mr. Justice Roberts concurring. This definition of entrapment was expressly adopted by the Supreme Court of Illinois in People v. Strong, 21 Ill.2d 320, 324, 172 N.E.2d 765. *fn1
The elements of the defense of entrapment were set out in People v. Outten, 13 Ill.2d 21, 147 N.E.2d 284, where the Supreme Court stated at page 23:
"As a general rule, entrapment can exist only when the criminal intent originates in the mind of the entrapping officer, and if such intent arose in the mind of the accused there is no entrapment, though officers may afford an opportunity for the commission of the offense and use artifice and strategem to apprehend one actually engaged in a criminal enterprise. It is not an instigation to perpetrate a crime if an officer, having reason to believe another is committing a crime, furnishes an opportunity for the commission of the offense, when the purpose is, in good faith to secure evidence against a guilty person and not to induce an innocent person to violate the law."
The policy behind allowing the defense of entrapment was well stated by Chief Justice Warren of the United States Supreme Court in the important case of Sherman v. United States, 356 U.S. 369. It was there stated at page 372:
"The function of law enforcement is the prevention of crime and the apprehension of criminals. Manifestly, that function does not include the manufacturing of crime. Criminal activity is such that stealth and strategy are necessary weapons in the arsenal of the police officer. However, `a different question is presented when the criminal design originates with the officials of the Government, and they implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they may prosecute.'"
See also Comment, Administration of the Affirmative Trap and the Doctrine of Entrapment: Device and Defense, 31 U of Chi L Rev 137 (1963).
Although the defense of entrapment is available in Illinois, it has been stated that "the defense in Illinois is accorded perhaps the narrowest scope of any American jurisdiction where it is recognized." Comment, supra, at 148. In his brief in this court defendant himself recognizes that Illinois courts have not been liberal in their interpretation of the entrapment defense.
"Plaintiff in error is well aware of the plethora of entrapment cases in narcotics convictions which have been before the court in recent years and the reluctance of this court to hold an entrapment unless the evidence is clear and convincing that defendant would not have committed the crime but for inducement of the law enforcement agent; that if defendant showed a `predisposition', `acquiescence' or `complaisance' to commit the crime then a distinction would be made between an entrapment and a mere opportunity afforded to commit the crime. People v. Outten, 12 [sic] Ill.2d 21; People v. Gonzales, 25 Ill.2d 235; People v. McSmith, 23 Ill.2d 87; People v. Shannon, 15 Ill.2d 494; People v. Lewis, 26 Ill.2d 542; People v. Clark, 7 Ill.2d 163; People v. Hall, 25 Ill.2d 297; (Br, p 12)."
In fact, the courts of Illinois have so strictly interpreted the entrapment defense that in only one case cited by defendant has such defense been upheld by the Supreme Court. In People v. Strong, 21 Ill.2d 320, 172 N.E.2d 765, the Supreme Court held that an entrapment was shown where the narcotics sold by the defendant in that case were supplied to him by the government informer only 45 minutes prior to the sale. The opinion in Strong is limited to its facts and is not of great solace to defendants seeking to rely on it. Mr. Justice Solfisburg, for a unanimous court, there stated at page 325:
"While we are sympathetic to the problems of enforcement agencies in controlling the narcotics traffic, and their use of informers to that end, we cannot condone the action of one acting for the government in supplying the very narcotics that gave rise to the alleged offense. We know of no conviction for sale of narcotics that has been sustained when the narcotics sold were supplied by an agent of the government. This is more than mere inducement. In reality the government is supplying the sine qua non of the offense."
We too are sympathetic to the problems of government agencies seeking to enforce our narcotics laws. But it is also our duty to closely scrutinize police conduct to insure that the individual defendant's rights are not violated and that decency is not sacrificed in the administration of justice. See concurring opinion of Mr. Justice Roberts in Sorrells v. United States, supra, and concurring opinion by Mr. Justice Frankfurter in Sherman v. United States, supra.
With this general background before us, we must decide whether the criminal intent in this case arose in Hatch's mind or whether, as defendant contends, he was merely the innocent dupe of an informer who was asked to supply the government agent with a seller.
Defendant's principal reliance is upon the fact that he and Spurlark were friends of long standing and knew each other to be addicts. Defendant maintains that it was only the inducement of his friendship for Spurlark which motivated the sale. Even were this the case, it has been held that appeals to sympathy and friendship are not sufficient to establish the defense of entrapment. People v. Lewis, 26 Ill.2d 542, 187 N.E.2d 700; People v. Hall, 25 Ill.2d 297, 185 N.E.2d 143, cert den, 374 U.S. 849.
Defendant further urges that entrapment was established as a matter of law in that he was called on to make a sale of narcotics although the government had no prior suspicion of him and, indeed, even knew his source of supply. This contention is also unavailing, for as was stated in People v. Wells, 25 Ill.2d 146, at page 149, 182 N.E.2d 689:
". . . we know of no case that requires a prior knowledge of the criminal predilection in order to permit the police to afford an opportunity to commit a crime. The crux of the issue is not the reasonableness of the suspicion by the police, but the methods used."
Likewise, the contention that the government in effect provided the sine qua non of the offense in permitting defendant's known source of supply to remain at large is not convincing. The sine qua non rationale, as discussed above, was recognized in People v. Strong, supra, where the informer actually supplied the defendant with the narcotics which constituted the offense. The case at bar is clearly not analogous in that a mere opportunity to commit the crime was furnished the defendant.
Defendant's argument that the evidence does not disclose a predisposition to sell narcotics is primarily based on three contentions. First, he alleges that he was merely a naive addict tricked into making the sale by his friend and fellow addict after a ninety minute automobile ride. Secondly, that there was no profit motive involved. *fn2 And finally, that he steadfastly refused to make further sales although urged to do so by Spurlark. These factors were argued before the trial judge who undoubtedly considered them for what they were worth. On the evidence he could find, without transgressing the bounds of reason, that the defendant, who had previously been convicted of possession of narcotics, was predisposed to make the sale. The mere existence of conflicting testimony or alternative explanations of conduct are not incompatible with proving a defendant guilty beyond a reasonable doubt. As was stated in People v. Owens, 23 Ill.2d 534, 538, 179 N.E.2d 630, cert den, 370 U.S. 947:
"The trier of the fact is `not required to search out a series of potential explanations compatible with innocence and elevate them to the status of a reasonable doubt.' (People v. Sullivan, 22 Ill.2d 122, 124; People v. Russell, 17 Ill.2d 328)."
Furthermore, in regard to defendant's contention that the testimony of Agent Wimpey was contradictory and thus unworthy of belief, this court recently stated: "In a bench trial of a criminal case the trial court's judgment based upon the credibility of the witnesses will not be discussed unless it is based on clearly unsatisfactory and improbable evidence." People v. Johnson, 47 Ill. App.2d 441, 198 N.E.2d 173; People v. Washington, 27 Ill.2d 104, 187 N.E.2d 739. Viewing the record as a whole, it does not appear that Agent Wimpey's testimony was so unsatisfactory and improbable as to justify our interference with the trial court's judgment as to his credibility.
Nor must we draw any adverse inferences from the agent's two month delay in making the arrest. In view of the nature of the narcotics traffic, such a delay was not unwarranted. People v. Guido, 25 Ill.2d 204, 210, 184 N.E.2d 858.
Defendant's "theory of the case" initially informs us that even if we do not view any of defendant's single points as sufficient evidence to sustain a defense of entrapment, all of the circumstances here taken together must lead one to conclude that defendant was not predisposed to commit the crime of which he was convicted. We do not agree.
Although, as we stated earlier, we believe that the courts must closely scrutinize the evidence in cases where entrapment is pleaded with a view to protecting the rights of the defendant and discouraging abuses of power by the police, several factors in the record at bar convince us that defendant was not entrapped.
First among these is the amount of the sale in question. This was no petty "fix" amounting to only a few dollars. Rather it was a sale of a full ounce of heroin for a price of $140. The agent testified that he told defendant that it was "strictly business." As the trial court stated in denying defendant's post-trial motion:
"If this was a five dollar or ten dollar sale, where the State comes in and asks to have a defendant found guilty of selling, it would be different. But here is a large scale. This is a $140.00 sale. It may be that this man was a distributor. I don't know, maybe he was a distributor to other people. There isn't any evidence of any other sales. (Ab 35.)"
Defendant's claim of entrapment is refuted by the fact that he had almost immediate access to so large a quantity of narcotics and by the further fact that he could obtain $140 worth of heroin on credit from a supplier. We believe this indicates that he was "wise in the ways of narcotics traffic." People v. Hall, 25 Ill.2d 297, 300, 185 N.E.2d 143, cert den, 374 U.S. 849. Defendant's ready compliance *fn3 with the agent's request for this large a quantity of heroin is not, as defendant urges, necessarily indicative of his naivete. It may rather indicate that defendant was not in the least disturbed by the quantity involved but instead exhibited an "instant willingness" to make a sale. People v. Gonzales, 25 Ill.2d 235, 239, 184 N.E.2d 833, cert den, 372 U.S. 923; People v. Toler, 26 Ill.2d 100, 185 N.E.2d 874, cert den, 374 U.S. 813. As stated above, we are not required to search for potential explanations compatible with defendant's innocence. People v. Owens, supra.
We believe that defendant was proven guilty beyond a reasonable doubt of the crime of selling narcotics and the judgment of the Criminal Court of Cook County is therefore affirmed. Moreover, the minimum sentence of ten years to ten years and one day which defendant urges is too harsh for a first offender was sustained against charges of unconstitutional severity in People v. Gonzales, supra.
ENGLISH, P.J. and McCORMICK, J., concur.