APPEAL from the Circuit Court of Madison County; the Hon.
WILLIAM L. BEATTY, Judge, presiding.
MR. JUSTICE GEORGE J. MORAN DELIVERED THE OPINION OF THE COURT:
Defendant appeals from his conviction of the offense of unlawful delivery of a substance represented to be a controlled substance in violation of section 401 of the Illinois Controlled Substance Act (Ill. Rev. Stat. 1975, ch. 56 1/2, par. 1401).
He contends (1) that the State did not prove him guilty beyond a reasonable doubt on the issue of entrapment, and (2) that the trial court committed reversible error when it allowed evidence of a subsequent crime to be introduced into evidence on the theory that it was relevant to the issue of his predisposition to commit the offense for which he was being tried.
The affirmative defense of entrapment is defined by section 7-12 of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 7-12) which provides:
"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 originated."
The trial court gave the following instruction to the jury:
"It is a defense to the charge made against the defendant that he was entrapped, that is, that for the purpose of obtaining evidence against the defendant or another he was incited or induced by a public officer or employee or an agent of a public officer or employee to commit a crime which he otherwise would not have committed.
However, the defendant was not entrapped if a public officer or employee or an agent of a public officer or employee merely afforded to the defendant the opportunity or facility for committing a crime which he was willing to commit in furtherance of a criminal purpose which the defendant originated." Illinois Pattern Jury Instructions, Criminal, No. 24.04 (2d ed. 1971).
The case for the State was presented chiefly through the testimony of a special agent for the Metropolitan Enforcement Group of Southwestern Illinois (MEGSI).
Defendant was introduced to undercover MEGSI Agent Michael Boyne by paid informant Nancy Niehaus, a woman who defendant had recently dated for a period of three to four weeks. The initial meeting of the defendant, Agent Boyne, Agent Charles Nunn, and informant Niehaus took place at the home of Bill Tipton on September 1 or 2, 1975. Agent Boyne testified that a general conversation ensued and Nancy Niehaus asked the defendant if he could get some cocaine for Agent Boyne and her. Tipton made two or three phone calls in the presence of Agent Boyne but was unsuccessful in making contact with the person called. Boyne and Niehaus left the Tipton home without a commitment by the defendant to procure a source of cocaine for them. Tipton testified that he subsequently received three phone calls from informant Niehaus over the course of 36 hours inquiring as to whether a source of cocaine had been located. She reminded him continually that he would be "doing her a favor" if such a source could be located for her and Mike. The third call from Niehaus to Tipton produced the name of the source of the cocaine. The fourth call from Niehaus to Tipton was made for the purpose of setting up a meeting between Boyne and a person named Steve Jones. Niehaus indicated that she would give the money for the drug transaction to Boyne and that he would make the purchase of the cocaine.
During this same time period, defendant Tipton also received "two or three" calls from Agent Boyne asking if a source of cocaine had been lined up. The last call from Boyne, made just shortly after the fourth and final call from Niehaus, produced a scheduled meeting between Boyne and Steven Jones, the source of the substance. The meeting was set for 6 p.m., September 3, 1975, at the Funland Miniature Golf Course, Pontoon Beach, Illinois.
Agent Boyne proceeded from his office to the Tipton residence in Pontoon Beach. Boyne stopped the car in front of the house, sounded the horn, and Bill Tipton came out of the house. Tipton ultimately rode to the golf course with Boyne. Boyne and Tipton were playing pinball inside the premises when Steven Jones entered shortly before 6 p.m. Agent Boyne and Jones were introduced. Tipton asked Jones if he had the "stuff" and Jones replied that he did. Jones suggested that they leave the building and go out to the car. The testimony at this point is contradictory as to whether Boyne had to prompt the defendant to go to the car with him for the drug transaction, but it is clear that Tipton did in fact enter the car with Boyne and Jones. Jones sat behind the wheel, Boyne sat on the front passenger side, and Tipton sat behind Jones in the back seat.
According to Boyne, there was a general conversation between Agent Boyne and Jones. Tipton apparently did not participate in this conversation. Immediately thereafter, Steven Jones produced an aluminum foil package which he said contained half cocaine and half "speed." Agent Boyne tendered $30 of official MEGSI funds which was accepted and exchanged for the small aluminum foil package. Boyne left shortly thereafter, indicating that he had to pick up his father.
Neither Nancy Niehaus nor Charles Nunn was called to testify by the State in this case. In addition, Boyne did not have a record of his conversation with defendant, Niehaus and Nunn in the report he had made to MEGSI on this incident.
Defendant Tipton testified that he did numerous odd jobs in addition to attending school. He knew Nancy Niehaus as he went out with her for a short time. She came by his house in September of 1975 accompanied by Mike Boyne and "another guy." He had never met either of the men before. They did not talk about drugs that day. The next day Nancy called and asked if he could get her some cocaine. He replied that he would have to see. She called him later and asked him to try. She said he would be doing her a big favor. He did not think about it any more until she called him back and asked if he had found anyone to sell cocaine to her. He told her no, not yet. The next day he met Steve Jones. It was pretty common knowledge at school that Jones was into drugs. Nancy again called him back and he gave her Steve Jones' name. Later Mike Boyne came by his house and the defendant told Boyne he could meet Steve at the mini golf course but Boyne persuaded him to go along. He accompanied Boyne to the golf course where the sale was consummated.
Did the State prove beyond a reasonable doubt that the defendant was not entrapped by the MEGSI agents? In order to put the entrapment defense in its proper perspective, it is necessary to examine the evolution of the defense since its initial recognition by the Supreme Court in Sorrells v. United States, 287 U.S. 435, 77 L.Ed. 413, 53 S.Ct. 210 (1932). The court in Sorrells announced general public policy guidelines relevant to the recognition of the entrapment defense:
"When the criminal design originates, not with the accused, but is conceived in the mind of government officers, and the accused is by persuasion, deceitful representation, or inducement lured into the commission of a criminal act, the government is estopped by sound public policy from prosecution therefor." (287 U.S. 435, 445, 77 L.Ed. 413, 418, 53 S.Ct. 210.)
The majority in Sorrells stated that the conduct of the defendant, as well as the background of the defendant, be opened up for exploration by the State once the defense of entrapment was raised at trial.
"The predisposition and criminal design of the defendant are relevant. But the issues raised and the evidence adduced must be pertinent to the controlling question whether the defendant is a person otherwise innocent whom the government is seeking to punish for an alleged offense which is the product of the creative activity of its own officials. If that is the fact, common justice requires that the accused be permitted to prove it. The Government in such a case is in no position to object to evidence of the activities of its representatives in relation to the accused, and if the defendant seeks acquittal by reason of entrapment, he cannot complain of an appropriate and searching inquiry into his own conduct and predisposition as bearing upon that issue." 287 U.S. 435, 451, 77 L.Ed. 413, 422, 53 S.Ct. 210.
The Warren court stated the pivotal test of the entrapment defense succinctly in Sherman v. United States, 356 U.S. 369, 2 L.Ed.2d 848, 78 S.Ct. 819 (1958):
"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." (356 U.S. 369, 372, 2 L.Ed.2d 848, 851, 78 S.Ct. 819.)
Mr. Justice Rehnquist, writing for the majority in United States v. Russell, 411 U.S. 423, 36 L.Ed.2d 366, 93 S.Ct. 1637 (1973), expressly acknowledged this shift in emphasis by the court in Sherman and noted that "[t]his Court's opinions in Sorrells v. United States, supra, and Sherman v. United States, supra, held that the principal element in the defense of entrapment was the defendant's predisposition to commit the crime." 411 U.S. 423, 433, 36 L.Ed.2d 366, 374, 93 S.Ct. 1637, 1643.
The court in Russell rejected an entrapment defense raised by a defendant who had been supplied a scarce ingredient by a government agent which was necessary for the manufacture of "speed." Although the ingredient was legal to possess, it was difficult to legitimately obtain except by regulated drug manufacturers. The majority opinion in Russell disallowed the entrapment defense and asserted:
"Sorrells and Sherman both recognize `that the fact that officers or employees of the Government merely afford opportunities or facilities for the commission of the offense does not defeat the prosecution,' [citations]. Nor will the mere fact of deceit defeat a prosecution, see, e.g., Lewis v. United States, 385 U.S. 206, 208-209, [17 L.Ed.2d 312, 87 S.Ct. 424] (1966), for there are circumstances when the use of deceit is the only practicable law enforcement technique available. It is only when the Government's deception actually implants the criminal design in the mind of the defendant that the defense of entrapment comes into play." 411 U.S. 423, 435-36, 36 L.Ed.2d 366, 375-76, 93 S.Ct. 1637, 1644-45.
The court in Russell rejected the entrapment defense on two grounds. First, and most significant, the defendant-respondent conceded that he was predisposed to engage in the type of illegal drug manufacturing activities with which he was charged. Second, the court sanctioned the conduct of the law enforcement officer who sold the propanone to the respondent.
"The illicit manufacture of drugs is not a sporadic, isolated criminal incident, but a continuing, though illegal, business enterprise. In order to obtain convictions for illegally manufacturing drugs, the gathering of evidence of past unlawful conduct frequently proves to be an all but impossible task. Thus in drug-related offenses law enforcement personnel have turned to one of the only practicable means of detection: the infiltration of drug rings and a limited participation in their unlawful present practices. Such infiltration is a recognized and permissible means of investigation; if that be so, then the supply of some item of value that the drug ring requires must, as a general rule, also be permissible." (411 U.S. 423, 432, 36 L.Ed.2d 366, 373-74, 93 S.Ct. 1637, 1643.)
The conclusion of the court was that the concession of the defendant that he was predisposed to commit the offense with which he was charged essentially made unnecessary an inquiry into the conduct of the law officials in supplying the propanone to the defendant.
"While we may some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction, cf. Rochin v. California, 342 U.S. 165, [96 L.Ed. 183, 72 S.Ct. 205, 25 A.L.R.2d 1396] (1952), the instant case is distinctly not of that breed." 411 U.S. 423, 431-32, 36 L.Ed.2d 366, 373, 93 S.Ct. 1637, 1643.
The most recent Supreme Court case to entertain the entrapment defense, Hampton v. United States, 425 U.S. 484, 48 L.Ed.2d 113, 96 S.Ct. 1646 (1976), also involved an admission by the defendant that he was predisposed to sell heroin. The heroin, illegal to possess or sell, had been supplied to the defendant by a government agent. Mr. Justice Rehnquist, again writing for the majority, reaffirmed and extended the holding of Russell:
"The remedy of the criminal defendant with respect to the acts of Government agents, which, far from being resisted, are encouraged by him, lies solely in the defense of entrapment. But, as noted, petitioner's conceded predisposition rendered this defense unavailable to him." (425 U.S. 484, 490, 48 L.Ed.2d 113, 118, 96 S.Ct. 1647, 1650.)
The court in Hampton seemingly adopted a per se rule that a defendant conceding predisposition to engage in illegal endeavors is precluded from raising an entrapment defense.
Was the defendant predisposed to commit the crime with which he was charged? Certainly the defendant has not conceded that he was predisposed to engage in drug-related activities. On cross-examination by defense counsel, Agent Boyne testified to the extent of his knowledge concerning the tendency of Bill Tipton to deal in drugs:
"Q: When was the first time in your life that you saw Bill handle drugs?
A: I've never seen him handle drugs.
Q: When was the first time in your life that you saw Bill get money for drugs?
Q: Neither time, did you?
Q: You've never seen Bill handle drugs, have you?
Q: Have you ever seen Bill around any drugs? Were there drugs in his room the day you were there?
Q: Did he offer you any drugs?
Q: Officer, at any time did Bill solicit you ...