APPEAL from the Circuit Court of Kane County; the Hon. JAMES
E. BOYLE, Judge, presiding.
MR. PRESIDING JUSTICE RECHENMACHER DELIVERED THE OPINION OF THE COURT:
Following a bench trial defendant, Faye Odell Waters, was convicted of unlawful delivery of a controlled substance. He was sentenced by the circuit court of Kane County to a term of 3 to 9 years. The only point made by defendant on appeal is that he was entrapped into making the delivery by an informer who provided him with the controlled substance and that the State's failure to call the informer as a witness to controvert that part of his testimony relating to entrapment is fatal to its case.
Special Agent James testified for the State that on July 8, 1974, he was with Agent Kazman, Detective Weaver of the Aurora Police Department and a "cooperating individual," whom Agent James did not name but who was later identified by the defendant as Robert Hamblen. James testified that the "cooperating individual" drove him to 425 Avon Street in Aurora about 4:05 p.m. on July 8, 1974. They parked the car west of that address on the south side of the street, waited there a couple of moments and then observed a vehicle pull up to 425 Avon Street and park there. James saw a female and a male exit from the vehicle, with the female walking to the residence and the male walking over to the driver's side of the vehicle James was in. At this point, James said, the "cooperating individual" introduced the defendant to him and they had a conversation for about 20 minutes.
James testified that he asked Waters (the defendant) about purchasing a tableting machine Waters said he had made. The defendant, according to James, answered that the people he had sold the machine to did not want to sell it at the present time. The defendant went on to say that the machine put out a pretty good tablet and handed two white tablets to James. The defendant asked James to notice the glaze effect or hard finish on them, saying this was due to the fact that he had provided for a heat treatment in the machine. James said he kept the two pills that Waters had given to him and they continued to talk about the tableting machine.
James further said that Waters told him that the tablets had been produced on the machine which was presently being operated by some people he had sold it to in Joliet. Waters told him that these people had $13,000 invested in the machine, which was running 24 hours a day and producing 600 tablets an hour with the liquid amphetamine he was providing them for use in the machine. Waters told James he was getting the liquid amphetamine from a legitimate source, paying $36 a pint for it.
About 4:30 p.m., James said he and the "cooperating individual" left the 425 Avon Street address, drove to the east side of Aurora, and met with Agent Kazmar and Detective Weaver. James showed them the tablets, which he delivered to the Drug Enforcement Administration chemist's office in Chicago the following day. Richard Gelsomino, the chemist who examined the tablets Agent James had obtained from the defendant, testified that his tests on the tablets indicated they contained amphetamine.
Also testifying for the State at trial were DEA Agent Richard C. Kazmar and Aurora Police Detective Raymond A. Weaver, who were on surveillance and observed the meeting between the defendant and Agent James on July 8, 1974. Kazmar and Detective Weaver testified to the same sequence of events that James had testified to. On cross-examination, Kazmar testified that James told him he had gotten two tablets from Mr. Waters, but Kazmar did not know where Waters had obtained them.
After the testimony of the State witnesses, the defendant, Faye Odell Waters, testified in his own behalf. Mr. Waters admitted meeting with Agent James at 425 Avon Street in Aurora on July 8, 1974. Waters testified that as he and his wife pulled into his driveway, he saw a Continental he recognized as belonging to a friend of his, Robert Hamblen, Sr., whom he had known for about three years.
Mr. Waters said he walked back and talked to Bob Hamblen, who introduced him to Randolph James, the DEA agent who had testified in court. According to the defendant, Hamblen was talking about a machine, one that was in Joliet which the defendant knew nothing about, and asking whether they could make one. Defendant testified that Hamblen said to the defendant, "You are a machinist, you can offer him some money or get someone to and we will build one," the defendant said he was not a machinist, although he did do some machine work.
After that, the defendant continued, "Bob asked me if I had any of those pills left." When the defendant said he had a few of them left, Hamblen asked to see them. The defendant handed them to Hamblen, who, in turn, gave them to Agent James, who asked if he could keep them. The defendant answered, "Well, they are Bob's."
The defendant testified that the day before, on Sunday, July 7, 1974, he and Hamblen were at Denny's drive-in at New York and Lincoln Streets in Aurora in the early afternoon when Hamblen told him he had something for him and gave him some "white cross pills," including the same two pills that he gave back to him on July 8, 1974. The defendant put the pills in a cigarette package container and later put them into a clear prescription bottle without any label. At this meeting on Sunday, July 7, Hamblen said he was going to rush an order and seemed to be in a hurry. Hamblen also asked Waters where he lived because he had not seen him in a while. The defendant explained that he had gotten married since he had last seen Hamblen. After the defendant told Hamblen his address, Hamblen said he might drop over and see him sometime, and the defendant told him to "come ahead."
On cross-examination, the defendant stated that he knew the pills he gave to Hamblen were amphetamines. The defendant also said that Hamblen had never before given him drugs or talked to him personally about drugs until the Sunday that he had given him the pills the defendant gave back to him the next day. Defendant testified that at the Sunday meeting, Hamblen gave the defendant 18 pills and said, "That will hold you until I can see you." The defendant indicated he understood what Hamblen meant by that because he had taken amphetamines before. When the defendant began to explain, "I used to drive on the road and ," Assistant State's Attorney Thompson asked another question before he finished his answer.
The defendant said that the agent had started the conversation about the machine, saying he had talked to Bob, who had told him that the defendant knew where there was one operating. The defendant stated he did not know of any machine operating in Joliet.
The defendant further testified that he was not paid for the pills he had given to Hamblen and Agent James. The defendant just handed the pills over to Hamblen because ...