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People v. Mccloskey

DECEMBER 21, 1971.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

JAMES EARL MCCLOSKEY, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Kane County; the Hon. JOHN S. PETERSEN, Judge, presiding.

MR. PRESIDING JUSTICE THOMAS J. MORAN DELIVERED THE OPINION OF THE COURT:

Mr. PRESIDING JUSTICE THOMAS J. MORAN delivered the opinion of the court:

Mr. PRESIDING JUSTICE THOMAS J. MORAN delivered the opinion of the court:

Original Opinion, May 24, 1971. Supplemental Opinion, September 14, 1971. Additional Supplemental Opinion,

ORIGINAL OPINION

Defendant was convicted of the possession and sale of narcotics. On appeal, he contends that (1) the court erred in refusing to permit him to elicit a witness' place of residence on cross-examination; (2) certain testimony was admitted without a proper admonishment to the jury; (3) the court improperly refused defendant's entrapment instruction; (4) the court permitted the prosecutor to make a prejudicial statement in his closing argument; (5) the court failed to instruct the jury on the mental state required for conviction; and (6) the sentence imposed is excessive and tantamount to cruel and unusual punishment.

Three Illinois Bureau of Investigation agents and an Aurora policeman conducted a controlled purchase of marijuana from defendant. One agent drove an unmarked automobile to defendant's place of employment. There, the agent, who used the name "Steve" and who was shabbily dressed and wearing a goatee, met a man named Dormer from whom he had previously purchased narcotics. This man was unaware of "Steve's" identity. Defendant, who was unknown to the agent, then arrived. Dormer refused to introduce the two. All three left in the agent's car and drove to a supermarket parking lot where the agent gave Dormer $50 in pre-recorded funds. Dormer added $10 of his own and handed the money to defendant who left the vehicle, disappeared from sight, and returned shortly with two bags of marijuana. The agent complained that he had not received $50 worth of the narcotic; defendant agreed, again left the automobile and came back with more marijuana. The three returned to the factory and separated.

The other two IBI agents and the Aurora policeman had followed the undercover agent to the factory. When "Steve", Dormer, and defendant left the factory to obtain the marijuana, one IBI agent and the Aurora policeman followed. The other IBI agent, Pariser, remained near the factory. Agent Pariser's only other connection with the case was that he witnessed the serial numbers of the pre-recorded money which was never recovered.

During its case-in-chief, the State introduced the testimony of the three IBI agents and the Aurora policeman, Agent Pariser being the last to testify. The defendant did not cross-examine the Aurora policeman or the IBI agent who followed the defendant to the parking lot where the transaction took place. He did examine the IBI agent who made the purchase, but at no time did he request his home address. When Pariser was offered for examination, he was asked to spell his last name, his first name, whether it was his real name and then he was asked his residence address. The State's objection to the last question was sustained. Defendant moved for a mistrial based upon Smith v. Illinois (1968), 390 U.S. 129, 19 L.Ed.2d 956, 88 S.Ct. 748, and People v. Gonzales (1970), 120 Ill. App.2d 406; app. den. 43 Ill.2d 397. This motion was denied.

Without the presence of the jury, the State attempted to make a record concerning the personal safety of Pariser. Suffice to say that the record on this point was insufficient and will not be considered in determination of the appeal.

Defendant's first contention is based upon the Smith case. There the Court, at pp. 130-131, stated:

"* * * [O]nly this witness and the petitioner testified to the crucial events inside the restaurant, and the petitioner's version of those events was entirely different. The only real question at the trial, therefore, was the relative credibility of the petitioner and this prosecution witness. * * *

In the present case there was not, to be sure, a complete denial of all right of cross-examination. But the petitioner was denied the right to ask the principal prosecution witness either his name or where he lived, although the witness admitted that the name he had first given was false. Yet when the credibility of a witness is in issue, the very starting point in `exposing falsehood and bringing out the truth' through cross-examination must necessarily be to ask the witness who he is and where he lives. The witness' name and address open countless avenues of in-court examination and out-of-court investigation. To forbid this most rudimentary inquiry at the threshold is effectively to emasculate the right of cross-examination itself."

Subsequent Federal and Illinois cases have considered Smith. In United States v. Teller (7th Cir. 1969), 412 F.2d 374, 380, the witness, Washington, during cross-examination, was asked "his present address"; the government objected and the objection was sustained by the court. On appeal, defense argued that failure to give the present address was a flagrant abuse of his right to cross-examination, even though the witness testified that he was staying at a motel at the government's expense at the time of trial. He further testified to where he lived 4 months before trial, to all of his past history on the use of narcotics, to living with a woman and to burglary and arson convictions. The court said:

"* * * We think that neither Alford v. United States, 282 U.S. 687, 75 L.Ed. 624, 51 S.Ct. 218 nor Smith v. Illinois, 390 U.S. 129, 19 L.Ed.2d 956, 88 S.Ct. 748 * * * requires a reversal of this conviction. Smith does not per se require a new trial merely because the district court sustained an objection to a question seeking to elicit Washington's address. Smith requires a reversal only where the lack of a witness's name and address denies the defendant an opportunity to effectively cross-examine a witness. When this happens, a defendant is denied his Sixth Amendment right to confrontation. However, the initial question is whether the defendant was denied effective cross-examination. It is clear from the recital of Washington's testimony that the district court did not unduly limit cross-examination of Washington's past record."

Similarly, United States v. Lawler (7th Cir. 1969), 413 F.2d 622, 627; United States v. Lee (7th Cir. 1969), 413 F.2d 910, 915; and United States v. Marti, (2d Cir. 1970), 421 F.2d 1263, 1265-1266, interpret Smith as requiring reversal where there is a prejudicial denial of effective cross-examination of a witness whose credibility is in question.

The crux of Smith was the informer's credibility versus defendant's. In the case at bar, the contribution of agent Pariser's testimony was minute. Pariser remained at the plant and saw absolutely no part of the sale. The prerecorded money he witnessed was apparently not recovered and not introduced at the trial. In this light, we find no prejudicial denial of effective cross-examination of a witness whose credibility is in issue.

There is no merit to defendant's argument that evidence of subsequent offenses was admitted without the jury having been admonished that such evidence could only be considered for the purpose of identifying defendant. We do not deem it to be of value to reproduce verbatim the purportedly objectionable testimony; it is sufficient to say that in the various instances, either no reference was made to criminal conduct, no objection was made by defendant, or, upon objection, the testimony was stricken.

Defendant's contention that the tendered instruction on entrapment should have been given is also without merit. Instructions are properly given on very slight evidence regarding a theory. (People v. Kalpak (1957), 10 Ill.2d 411, 425.) Entrapment arises when the defendant commits a crime which he would not have committed, but for the actions of the authorities. The intent that a crime be committed must arise in the mind of the police, not the accused. It is proper for the police to provide opportunity for the crime to be committed and to use artifice to catch the criminal. People v. Outten (1958), 13 Ill.2d 21, 23-24.

We find this case barren of evidence of entrapment. Dormer, the go between, had no idea "Steve" was an undercover agent; "Steve" had never met or heard of defendant; there was no testimony of Dormer's conversation with defendant; and, finally, defendant readily took part in the crime, returned for more marijuana and exhibited a working knowledge of the narcotics trade. The sole indication of entrapment was the self-serving statement of defendant that, on previous occasions, Dormer had asked for ...


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