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People v. Nahas

JANUARY 29, 1973.




APPEAL from the Circuit Court of Peoria County; the Hon. CALVIN R. STONE, Judge, presiding.


This is an appeal from a judgment of the Circuit Court of Peoria County. The defendant, Jack Nahas, was indicted for bribery, found guilty by a jury and sentenced by the Court to a term of not less than one year nor more than five years and fined $5000.

The first contention of defendant is that as a matter of law the defense of entrapment was established.

At about 9:30 A.M., March 17, 1970 the defendant and Sgt. Donald Story of the Peoria Police Department were present on the fourth floor of the Peoria County Court House. They exchanged greetings. The officer could not recall who spoke first. Defendant testified that the officer spoke first. At any rate after the initial "Hi", the officer testified,

"Mr. Nahas mentioned that he heard I was in charge of vice. I told him I was. He said he was in a position to do me some good. I told him I suppose I was. He made a statement that one hand takes care of the other and he would like to talk to me. I told him I would be happy to talk to him and he told me to call and ask for him personally and we would meet somewhere and I told him I would."

There was no further conversation at that time with defendant.

Sgt. Story, the same morning, informed the then Chief of Police (the same Allen Andrews who very much appears later) and the State's Attorney's office of his conversation. Richard Capitelli, First Assistant State's Attorney requested that electronics be used to record any future conversation between Story and the defendant. On March 23, 1970 Donald Story telephoned defendant and set up a meeting with defendant for that evening.

Sgt. Story had engaged the assistance of Sgt. James Wilson of the Peoria Police Dept. and Corporal Robert Webb of the Illinois State Police to assist him with the electronics. Corporal Webb equipped Sgt. Story with a mobile microphone and transmitter, secreted on his person on the evening of March 23, 1970. Corporal Webb placed a radio receiver in his car and was able to hear the conversation between Sgt. Story and the defendant during their meeting that night at MacArthur and Washington St. Sgt. Wilson was with Webb and Wilson recorded the conversation on a tape recording machine.

Sgt. Story testified that during this conversation the defendant gave him a $50 bill "just to bind our deal". The deal was that Sgt. Story in return for this money, and future payments to be made at regular intervals, was to decrease law enforcement activities with regard to three houses of prostitution and was to notify defendant at least 20 minutes in advance of any impending police raids on those houses.

Sgt. Wilson and Corporal Webb testified to substantially the same facts. The tape was played, first, outside the presence of the jury and second, for the jury, with certain deletions ordered by the court.

The defendant took the stand and presented the only evidence offered on his behalf. He testified that on March 17, 1970 at total stranger came up to him and said "Hi, I'm Don Story head of the Vice Squad. Maybe you can help me make some money. Maybe you can open a gambling joint and I can make some money." He further testified that he did not know what Story was talking about and he did not ask for clarification. He was later telephoned twice and that he did meet Sgt. Story on March 23, 1970 at MacArthur and Washington. "On March 17, I did not offer Sgt. Story a bribe."

• 1-4 A defendant who invokes the defense of entrapment must be considered to have admitted the commission of the acts involved in the offense charged. (People v. Washington, 81 Ill. App.2d 162, cert. denied 88 S.Ct. 1190.) The issue of entrapment is a jury question to be decided by the jury under proper instruction and the jury's decision will not be reversed unless there is entrapment as a matter of law which will be established only if improper inducement comes from the State's own witness and there is insufficient evidence of predisposition.

Was Nahas a man otherwise innocent who would not have committed a crime but for official solicitation, or was he predisposed to pursue a criminal design which he had already conceived? Did he initiate the transaction by suggesting payment of a bribe to a law enforcement officer who thereafter pretended to co-operate by furnishing an opportunity to the accused in order to facilitate the completion of the offense for the purpose of obtaining necessary evidence? The record clearly shows that the idea of committing the offense originated with Nahas. Ill. Stat. Ann. Chap. 38, Sec. 7-12 Committee Comments; 14A I.L.P. Sec. 49; Annotation 69 A.L.R.2d 1390.

The defendant during the course of the trial raised objections to the evidence pertaining to the use of the electronic devices. We will discuss the points raised in the order raised in the briefs.

In People v. Kurth (1966), 34 Ill.2d 387, the Supreme Court construed Article 14 of the Criminal Code of 1961 as it then read and held that "any party who has not consented to the recording or transmission of his conversation may bar its admission in evidence against him."

Sec. 14-12 was therefore amended, eff. Aug. 28, 1969 and now provides:

A person commits eavesdropping when he:

"(a) Uses an eavesdropping device to hear or record all or any part of any conversation unless he does so with the consent of any one party to such conversation and at the request of a State's Attorney; or

(b) Uses or divulges, except in a criminal proceeding; any information which he knows or reasonably should know was obtained through the use of an ...

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