APPEAL from the Circuit Court of Madison County; the Hon.
HAROLD R. CLARK, Judge, presiding.
MR. JUSTICE JONES DELIVERED THE OPINION OF THE COURT:
Rehearing denied November 3, 1978.
Defendant was found guilty by a Madison County jury of the crime of unlawful delivery of less than 30 grams of a substance containing heroin and sentenced to a term of two to six years in the penitentiary. Defendant appeals from the conviction and from the sentence imposed presenting as issues for review whether the evidence adduced at trial established the defense of entrapment as a matter of law and whether the trial court abused its discretion in imposing a prison sentence of two to six years.
This case arose from the transfer of 10 capsules, containing a total of 1.9 grams of heroin, from the defendant to agent Dennis Higgins of the Illinois Bureau of Investigation. The transfer was arranged by a female IBI informant named Terry Butler.
The defendant admitted at trial that the subject transfer had taken place, the sole issue raised being whether the affirmative defense of entrapment was available to the defendant. Therefore the following facts are summarized from testimony at trial which was entirely unrebutted. Terry Butler called the defendant on the afternoon of August 24, 1976, and arranged to meet him later that evening at My Old School Tavern in Collinsville. Higgins and Butler met the defendant and the defendant's girlfriend Barbara Marchiando in the tavern at about 8:30 that night. The four of them shared one table and conversed.
During this conversation, defendant said that he was going to call "his connection" to make sure he was home. While defendant was calling, Marchiando asked Higgins and Butler how much heroin they wanted to buy. Higgins replied that they wanted about 10 capsules. Higgins agreed to pay $100 for the heroin and give the defendant and Marchiando another $20. Defendant then returned to the table and said that he had spoken to his connection and could obtain heroin. All four people then left the tavern, and Higgins gave Marchiando $120 while outside. Defendant told Higgins that he would return in about 1 1/2 hours; defendant then left with Marchiando in defendant's car. Higgins and Butler reentered the tavern and waited.
Defendant and Marchiando rejoined Higgins and Butler in the tavern about 10:15 p.m. Defendant said that he and Marchiando were on a methadone program and were trying to "cut down on their habit." Soon after receiving the heroin, Higgins and Butler left the tavern.
Agent Higgins had been introduced to Butler in June 1976. They worked together on about 15 drug cases between June and August 24, 1976. Her salary depended upon the quantity and quality of drugs involved, and she was not paid when no drugs were seized. She received $40 or $50 in defendant's case. She was acquainted with people who dealt in drugs in the Collinsville area, and before going to the tavern August 24, 1976, she had informed Higgins that defendant would probably purchase heroin in St. Louis.
About 10 days before August 24, 1976, Butler and her husband had seen defendant, with whom they were acquainted, leaving a methadone clinic on Olive Street in St. Louis, Missouri. Defendant was leaving the clinic that afternoon after receiving his medicine when he heard someone shout his name. He saw a man and a woman sitting in an orange Volkswagen across the street and walked over to greet them. Defendant recognized the Volkswagen and then remembered that its occupants were Dennis and Terry Butler. Defendant informed the Butlers that he was attending a detoxification program there.
Butler and her husband were also acquainted with the Sharells of St. Louis, and knew that many people in the Collinsville area purchased drugs from the Sharells. Butler occasionally babysat the Sharells' children. As of the trial Butler had earned "$200 or $300" as an informant.
Three I.B.I. agents followed defendant from the tavern to St. Louis, looking for his source. They lost defendant in St. Louis, and returned to the tavern.
Defendant was 24 years old at the time of trial. In the summer of 1976 he was employed by his father's company as a sales representative and traveled extensively in a five-state area. He had used heroin in 1975, but had not become heavily addicted until the summer of 1976. Sharell was his only heroin source. Defendant's parents did not know that he was addicted to heroin, and he did not tell them he was attending the methadone clinic. He asked the clinic to keep his record confidential because he was working for his father and was ashamed of his involvement with the drug. While defendant was on the methadone program he continued to use heroin occasionally on business trips when he could not work without it.
The above facts summarize the unrebutted testimony heard at the trial. The disputed and conflicting testimony is summarized as follows. There was substantial difference in the accounts given by witnesses at trial concerning how many times Butler called the defendant before defendant agreed to procure heroin for her. Butler testified that only one telephone call was made to defendant's residence prior to the call on August 24, 1976. That call was made a few days before August 24; a man answered and told her that the defendant was not home. The first witness for the defendant, his brother Kip Andreano, was home the weekend before August 25, 1976. He stated that during the weekend he answered a telephone call from a woman who did not identify herself, but said that she was feeling bad, needed a fix, and asked what Kip could do for her. Kip replied that he could not help the woman and told her not to call again.
The defendant's mother, Betty Andreano, testified that in the summer of 1976, just before Kip left home to return to school on August 25, she received a series of telephone calls from a woman who did not identify herself and who asked to speak with the defendant. Mrs. Andreano stated that it was unusual for a woman to be ...