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People v. Gulley

OPINION FILED MARCH 12, 1976.

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

v.

GARY GULLEY, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Williamson County; the Hon. WILLIAM A. LEWIS, Judge, presiding.

MR. JUSTICE JONES DELIVERED THE OPINION OF THE COURT:

Defendant, Gary Gulley, was convicted in a jury trial of the crime of unlawful delivery of a substance containing less than 200 grams of methedrine, in violation of section 401(c) of the Controlled Substances Act (Ill. Rev. Stat., ch. 56 1/2, par. 1401(c)). He was sentenced to one to ten years' imprisonment. Defendant appeals from the judgment of conviction and raises three issues: (1) whether the evidence was sufficient to prove defendant guilty beyond a reasonable doubt; (2) whether the defendant was entrapped; and (3) whether the court erred in sustaining objections to certain questions propounded by defense counsel on cross-examination of a witness for the State and in otherwise limiting cross-examination of that witness.

At trial defendant raised the affirmative defense of entrapment and most of the evidence presented by the State and by the defendant at trial was focused on that issue. The entrapment issue was submitted to the jury after proper instruction by the court. Although several witnesses testified during defendant's trial, the most important testimony for the purposes of this appeal was that of Jack Cantrell, a paid informer for the Illinois Bureau of Investigation, and that of the defendant. Accordingly, their testimony will be summarized here.

The testimony of Jack Cantrel was as follows. On March 19, 1973, Cantrell was at Fuzzy's poolroom in Harrisburg, Illinois. The defendant was also present at the poolroom and initiated a conversation with Cantrell in which the defendant told Cantrell that he knew where some "good speed" was located. Cantrell responded that he would like to buy some. The defendant asked what quantity Cantrell wished to buy, to which Cantrell responded by asking about the price of the drug. The defendant told Cantrell that the drug would cost Cantrell $110 per ounce. The next day, March 20, 1973, at 1:15 p.m., Cantrell met with Sheriff Glenn Oglesby, Detective Jack Nolen, and I.B.I. agent Dennis Bowman in Harrisburg, Illinois. Agent Bowman and Sheriff Oglesby searched Cantrell and determined that no drugs were in his possession. Bowman then gave Cantrell $115, and Cantrell immediately thereafter proceeded to Fuzzy's poolroom where he encountered the defendant behind the poolroom at approximately 1:30 p.m. The defendant asked Cantrell whether he had the money to make the drug purchase, and Cantrell acknowledged that he did. They then got into the defendant's automobile and the defendant proceeded to drive to Carterville, Illinois (approximately 25 miles from Harrisburg). During the trip to Carterville the defendant told Cantrell that he would let Cantrell out at Cooch's poolroom in Carterville, where Cantrell was to wait while the defendant went to the home of Thomas Behnke to obtain the drugs. The defendant let Cantrell out as planned, and Cantrell did not see the defendant again until approximately 5 p.m. During all of that time Cantrell waited for Gulley at Cooch's poolroom with the exception of a brief period around 3 p.m. when Cantrell went to talk with Agent Bowman to explain the delay. (Agent Bowman was parked in his automobile behind the poolroom.) At no time during this period of waiting did Cantrell have drugs in his possession.

At approximately 5 p.m. defendant entered Cooch's poolroom, walked to a bench where Cantrell was seated, sat down, and told Cantrell that he had the deal arranged. The defendant told Cantrell that to get the drugs he would have to go into the poolhall bathroom, pick up the drugs and leave the money behind a pipe. Before Cantrell went into the bathroom, however, the defendant nodded to a man who was playing pool, after which the man went into the bathroom for approximately two minutes and then came out. Cantrell then went into the bathroom, picked up the narcotics and put them into his coat pocket, and placed $110 behind the pipe. (The drugs were later found to be methedrine.)

Cantrell and the defendant immediately thereafter left Cooch's poolroom and the defendant drove Cantrell back to Harrisburg where he let Cantrell out at the home of Cantrell's parents. Cantrell walked through the house and out the back door and met Agent John Sandusky. Cantrell gave Sandusky the drugs and the five dollars that he had not used for the purchase.

The defendant testified in his own behalf as follows. He had known Cantrell for eight years and had been an associate of Cantrell during the first half of 1973. (Defendant's explanation of his association with Cantrell was that they smoked marijuana together and played ping pong in Cantrell's garage.) On March 19, 1973, defendant saw Cantrell at Fuzzy's poolroom. Cantrell approached defendant and asked the defendant to take him to Behnke's home in Carterville so that Cantrell could purchase some "crystal." Cantrell said that he needed the drug because he had been "up" for a week and was "coming down." Defendant replied that he did not want "to be messing with it" because he believed that he would soon be getting his job back. Cantrell then said, "oh, come on," and reminded defendant of the favors which he had done for him. Defendant then decided to take him to Behnke's. Cantrell stated that he "had" the money for the purchase. However, when defendant, knowing Cantrell was unemployed, asked Cantrell how he had obtained the money, Cantrell replied that he would get the money from his wife's welfare check which would come on March 20 or 21.

The next day, March 20, 1973, defendant met Cantrell at Fuzzy's poolroom. Cantrell said that his wife's check had arrived and that he had $115 and asked defendant to take him to Carterville to get some "crystal." Cantrell said that he needed the drug because he had been "up" for a week, that he had been at Behnke's for a week "doing crystal," and that he was "coming down." They went to the defendant's car and the defendant said that he would take Cantrell to Behnke's. They got into the car and started to Carterville.

During the trip to Carterville defendant asked Cantrell about some rumors which defendant had heard that Cantrell was "working for the police." Cantrell denied that he was working for the police and explained that the police would not have someone with the criminal background that Cantrell had in their employ. A little later during the trip Cantrell stated that he wanted the defendant to obtain the drugs for him because Cantrell owed Behnke $80 or $90 for "crystal" which Cantrell had "fired up" at Behnke's. Cantrell explained that if he went to Behnke's he would have to pay the debt and would then not have enough money to make the purchase. Defendant initially replied that he could not make the purchase, but when Cantrell reminded him of the favors Cantrell had done for him, defendant agreed to make the purchase.

Cantrell suggested that the would wait at Cooch's poolroom while the defendant went to obtain the drugs, and Cantrell also suggested that defendant go to the house of a person named Vineyard, where Behnke was likely to be. Defendant went to Vineyard's house, did not find Behnke there, and then went to Behnke's house.

When defendant arrived at Behnke's he told them what he wanted. He was asked whether he had the money and was told to sit and wait. Defendant gave "them" $115 and waited for two hours or longer. Finally they brought in the "crystal," weighed it, and gave it to defendant. He put it in his pants pocket and returned to Cooch's poolroom.

As defendant entered the poolroom he saw Cantrell sitting alone at the bar. Defendant sat beside Cantrell, told him that he had obtained the "crystal" and said "let's go." As they were walking to the door of the bar defendant handed Cantrell the drugs. Defendant then drove Cantrell to the home of Cantrell's parents in Harrisburg. Two months later defendant was arrested for the instant offense.

On this appeal defendant asserts that the State failed to prove beyond a reasonable doubt that defendant delivered a controlled substance to Jack Cantrell. Defendant asserts that only the testimony of Cantrell implicated the defendant. Defendant further asserts that, since Cantrell was impeached in a number of respects and since the testimony of several witnesses showed Cantrell to be a narcotics addict, the testimony of Cantrell was not sufficient to sustain a conviction. Defendant cites People v. Bazemore, 25 Ill.2d 74, 182 N.E.2d 649, and People v. Hamby, 6 Ill.2d 559, 129 N.E.2d 746, in support of this contention. Neither of these cases is controlling here, for neither case involved either an express admission by the defendant of the acts constituting the offense or an assertion of the defense of entrapment.

• 1 In the instant case the defendant, testifying in his own behalf, expressly admitted obtaining the methedrine and delivering it to Cantrell. Thus the proof of defendant's guilt did not rest alone on the testimony of Cantrell and was more than sufficient to support the conviction. Moreover, in the instant case the defendant, unlike the defendants in Bazemore and Hamby, raised the affirmative defense of entrapment. Although a few courts have held that a defendant may be allowed to assert an entrapment defense without being required to concede that he committed the crime charged or any of its elements (see, for example, United States v. Demma (9th Cir. 1975), 523 F.2d 981; People v. Perez (1965), 62 Cal.2d 769, 401 P.2d 934, 44 Cal. Rptr. 326), the generally accepted rule in Illinois and other jurisdictions is that the defense of entrapment is only available to a defendant who admits committing the acts which constitute the crime for which he is claiming entrapment. People v. Fleming, 50 Ill.2d 141, 277 N.E.2d 872; People v. Washington, 81 Ill. App.2d 162, 225 N.E.2d 673, cert. denied, 390 U.S. 991, 19 L.Ed.2d 1298, 88 S.Ct. 1190; People v. Nahas, 9 Ill. App.3d 570, 292 N.E.2d 466; People v. Cooper, 17 Ill. App.3d 934, 308 N.E.2d 815; People v. Gaines, 26 Ill. App.3d 1059, 325 N.E.2d 679 (abstract opinion); Annot., 61 A.L.R. 2d 677 (1958) (see cases from various jurisdictions compiled in main volume and "Later Case Service" (1967)).

The defendant's argument on this first issue is very much like the argument made by the defendant in Washington. In that case the defendant contended that there was insufficient proof of guilt because there was no evidence in the record that the package transferred by the defendant to a paid police informer contained narcotics. The court on appeal rejected this argument, stating:

"As an experienced defense lawyer, counsel was doubtless aware of a line of decisions establishing the rule that the defense of entrapment is incompatible with a claim that the defendant did not commit the acts constituting the offense charged in the indictment. [Citations.] The defense of entrapment, which was the only defense interposed at the trial of this case, loses all its meaning unless it is bottomed on admission of the acts charged. A defendant must be considered as having admitted commission of the acts involved in the offense charged when he invokes the defense of entrapment." 81 Ill. App.2d 162, 173, 225 N.E.2d 673, 678.

The more important question in the instant case is whether entrapment existed as a matter of law; for whether entrapment exists is ordinarily a question for determination by the jury, under proper instruction, which determination should not be disturbed on appeal unless the reviewing court concludes that entrapment existed as a matter of law. People v. Abbott, 110 Ill. App.2d 462, 249 N.E.2d 675, cert. denied, 398 U.S. 940, 26 L.Ed.2d 275, 90 S.Ct. 1851; People v. Nahas; People v. Cooper; People v. Kadlec, 21 Ill. App.3d 289, 313 N.E.2d 522.

The law of entrapment in this country has divided into two distinct formulations. The first is the "subjective" or "origin of intent" formulation. This is the more widely accepted formulation of the two (see Annot., 62 A.L.R. 3d 110, §§ 2(a) and 3(1975)) and has been the formulation continuously recognized by the majority of the United States Supreme Court. (See Sorrells v. United States, 287 U.S. 435, 77 L.Ed. 413, 53 S.Ct. 210; Sherman v. United States, 356 U.S. 369, 2 L.Ed.2d 848, 78 S.Ct. 819; United States v. Russell, 411 U.S. 423, 36 L.Ed.2d 366, 93 S.Ct. 1637.) Under this test there are two factors to be considered in determining whether entrapment occurred: (1) whether the defendant was induced to commit the offense by a government official or someone working with a government official, and (2) whether the defendant was predisposed to commit the type of offense involved. (For a representative statement of this formulation, see the Model Penal Code § 2.10(1), at 13 (Tent. Draft No. 9, 1959).)

In explanation of this formulation, Mr. Chief Justice Warren explained:

"[T]he fact that government agents `merely afford opportunities or facilities for the commission of the offense does not' constitute entrapment. Entrapment occurs only when the criminal conduct was `the product of the creative activity' of law-enforcement officials. * * * To determine whether entrapment has been established, a line must be drawn between the trap for the unwary innocent and the trap for the unwary criminal." Sherman v. United States, 356 U.S. 369, 372-73, 2 L.Ed.2d 848, 851, 78, S.Ct. 819.

The second formulation is the "objective" formulation. Although not as widely accepted, it is the test continuously espoused by a minority of the Supreme Court of the United States. (See Sorrells v. United States, opinion of Mr. Justice Roberts concurring in part, dissenting in part; Sherman v. United States, opinion of Mr. Justice Frankfurter, concurring in result; United States v. Russell, dissenting opinions of Mr. Justice Douglas and Mr. Justice Stewart.) It is also the formulation adopted in Iowa (State v. Mullen (Iowa 1974), 216 N.W.2d 375), Michigan (People v. Turner (1973), 390 Mich. 7, 210 N.W.2d 336), and New Mexico (State v. Sainz (1972), 84 N.M. 259, 501 P.2d 1247). Under this test the predisposition of the defendant is irrelevant; the only factor to be considered is whether "the police conduct revealed in the particular case ...


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