APPEAL from the Circuit Court of Will County; the Hon. JOHN
VERKLAN, Judge, presiding.
MR. JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:
Donna Darling, the defendant, was after trial by jury in the Circuit Court of Will County found guilty of the offense of prostitution and sentenced to a 60-day term of imprisonment in the county jail.
In this appeal the defendant raises a number of issues which she assigns as reversible error and as we consider them we will set forth the facts which are pertinent to each issue.
The defendant first contends that the trial court committed error when it failed to instruct the jury on the issue of entrapment, an instruction which she tendered to the court. In order to make a determination of this issue it is necessary for us to set forth certain facts relating to the defendant's arrest and trial.
On February 4, 1974, James Prodehl, a City of Joliet police officer assigned to the prostitution detail, saw a parked yellow Plymouth motor vehicle in which the defendant was sitting behind the steering wheel. Prodehl approached the defendant and asked her "what was happening?" and the defendant replied "not much." Prodehl then said to the defendant "you are too good looking to be around this neighborhood," to which the defendant replied "but the money is good here." Prodehl then asked "how much?" and the defendant said $25. Prodehl then made the inquiry "Can you drop it down for a straight blow job?" and the defendant replied "are you fast?" This question Detective Prodehl answered by stating "just looking at you and I can make it right now." The final colloquy was when the defendant said, "O.K. if you are fast." Soon thereafter the defendant entered detective Prodehl's vehicle on the passenger side and at that time was placed under arrest.
During the trial of the defendant she did not produce any evidence or elect to testify, however, during the jury instruction conference she requested the judge to instruct the jury on the law of entrapment. The judge refused to give the entrapment instruction tendered by the defendant and the question now presented to us is whether such refusal was error.
We answer the question which has been posed by stating that the trial judge did not commit error by refusing to give the instruction on entrapment. This conclusion is inescapable since the defense of entrapment is an affirmative defense. (See Ill. Rev. Stat. 1975, ch. 38, par. 7-14.) An affirmative defense means that unless the State's evidence raises the issue involving the alleged defense, the defendant, to raise the issue, must present some evidence thereon. (See Ill. Rev. Stat. 1975, ch. 38, par. 3-2(a).) As we have stated, the defendant produced no evidence during the course of her trial, so the question remaining is whether the State's evidence raised the issue of the defense of entrapment. Again we must answer a pivotal question in the negative. Section 7-12 of the Criminal Code (Ill. Rev. Stat. 1975, ch. 38, par. 7-12) defines entrapment as follows:
"A person is not guilty of an offense if his conduct is incited or induced by a public officer or employee, or agent of either, for the purpose of obtaining evidence for the prosecution of such person. However, this Section is inapplicable if a public officer or employee, or agent of either, merely affords to such person the opportunity or facility for committing an offense in furtherance of a criminal purpose which such person has originated."
• 1, 2 The record in the instant case clearly demonstrates that the defendant had the intention and design to commit the offense of prostitution. Merely because a law enforcement officer afforded her the opportunity to commit the crime and encouraged her to agree to an act of fellatio does not establish entrapment. We have set out in detail and in verbatim the colloquy which ensued between the police officer and the defendant and after examining the same it can in no way be construed as evidence adduced by the State which would raise the issue of entrapment and require a jury instruction to be given on such defense. (See People v. Deppert (1973), 15 Ill. App.3d 361, 304 N.E.2d 499.) The evidence adduced by the State was uncontradicted and disclosed no evidence of entrapment and hence it was not necessary to submit the question of entrapment to the jury. See People v. Cash (1963), 26 Ill.2d 595, 188 N.E.2d 20; People v. Kadlec (1974), 21 Ill. App.3d 289, 313 N.E.2d 522.
Secondly, the defendant contends that reversible error was committed by the trial court when she was not granted an opportunity to make a statement in her own behalf. It is true that at the sentencing hearing the defendant was not afforded an opportunity to make a statement which on first impression is contrary to a mandate in our Criminal Code which provides:
"(a) After a determination of guilt, a hearing shall be held to impose the sentence. At the hearing the court shall:
(5) afford the defendant the opportunity to make a statement in his own behalf." (Ill. Rev. Stat. 1975, ch. 38, par. 1005-4-1(a).)
In spite of the foregoing statutory provision it is settled that within the facts of this case no error was committed when the defendant was not afforded an opportunity to speak on her own behalf. In the instant case the defendant's attorney was given an opportunity to present evidence in mitigation of sentencing and the trial court heard sentencing alternatives from both parties. The defendant did not specifically make a request to speak in her own behalf.
• 3 Where a hearing in mitigation and aggravation is held at which defense counsel's arguments are heard, the failure of the trial court to permit the defendant to make a statement on his own behalf prior to sentencing is a technical or formal error which does not require reversal. (See People v. Spiler (1975), 28 Ill. App.3d 178, 328 N.E.2d 201.) It (failure to permit defendant to speak in his own behalf) is not a fundamental defect which inherently results in a complete miscarriage of justice, nor an omission inconsistent with the rudimentary demands of fair procedure. (See Hill v. United States (1962), 368 U.S. 424, 7 L.Ed.2d 917, 82 S.Ct. 468.) While we do not condone the ...