APPEAL from the Circuit Court of Knox County; the Hon. SCOTT
KLUKOS, Judge, presiding.
MR. JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:
Defendant Lynn Pates appeals from a conviction of possession with intent to deliver more than 500 grams of cannabis, in violation of section 5(e) of the Cannabis Control Act (Ill. Rev. Stat. 1977, ch. 56 1/2, par. 705(e)). Following a jury trial, Pates was sentenced to four years probation, with 150 days to be served in the Knox County jail, and he was also fined $4,000. Pates had no prior criminal arrests.
The record discloses that on May 22, 1978, Craig Bultemeir, age 17, was arrested for unlawful delivery of cocaine. Bultemeir was informed that he would receive "hard time" unless he aided his arresting officers in making additional narcotics arrests. At the direction of Deputy William Muir, of the Knox County sheriff's department, Bultemeir telephoned defendant Pates, whom he had met on one previous occasion. He told Pates a story fabricated by Deputy Muir, which represented that he was in the company of two friends from Rockford who were interested in purchasing 10 pounds of marijuana. Pates replied that he had none.
The evidence is conflicting as to the degree of encouragement or discouragement given Bultemeir at this time. The first phone call occurred around 8 or 9 p.m. Bultemeir, again at Deputy Muir's request, called Pates back at least four more times, i.e., at midnight, 1:30 a.m., 3 a.m., and 7:30 a.m. Pates says that he received an additional call from Bultemeir about an hour after the first call. During the night, Gregg Bacon, who was a friend of Pates, told Pates that two friends of his, Stephen Hall and Ronald Boone, had marijuana for sale. When Bultemeir called at 1:30 a.m., Pates informed him that he knew someone with marijuana for sale. A meeting was arranged to take place at the Sheraton Motel to complete the transaction. An arrest squad was assembled at the Sheraton. At 3 a.m. and 7:30 a.m. calls were made from the Sheraton. At around 8:30 a.m., Pates appeared in his own car, a white and black MG, followed by Hall and Boone in a Datsun pickup truck. Agent Ziegenbein, of the Illinois Department of Law Enforcement, dressed in plain clothes, approached the defendant. The defendant offered him two marijuana cigarettes as samples. Agent Ziegenbein was accompanied by an Agent Blackburn. The two agents then approached the pickup truck, where they were shown two five-pound bags of marijuana. Agent Ziegenbein testified that he then asked defendant Pates the price and Pates replied, "$4,000." Agent Blackburn testified that he had heard "$4,000," but was not sure who made the statement. Agent Ziegenbein then gave a signal to the other agents, and all of the suspects were arrested.
Agent Blackburn testified that after the arrests he observed a partially burned marijuana cigarette in the ashtray of defendant's MG. He then searched the car and found a small quantity of marijuana under the driver's seat, and a few grams of marijuana in the pocket of a jacket in the back seat of the car. These were all introduced into evidence.
At the trial, the defendant asserted the affirmative defense of entrapment. An entrapment instruction was offered by the State, and an alternative instruction was offered by defendant. The court accepted the State's instruction and rejected the instruction tendered by defendant.
The defendant's proposed instruction was Illinois Pattern Jury Instructions, Criminal, No. 24.04 (1968) (hereinafter IPI Criminal):
"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 he was incited or induced by an agent of a public officer to commit a crime which he otherwise would not have committed.
However, the defendant was not entrapped if an agent of a public officer merely afforded to the defendant the opportunity or facility for committing a crime in furtherance of a criminal purpose which the defendant originated."
The instruction submitted by the State and actually read to the jury was a modification of the pattern instruction, the second sentence of which was in the following language:
"However, the defendant was not entrapped if an agent of a public officer merely afforded to the defendant the opportunity or facility for committing a crime which he was willing to commit."
The pattern instruction contains an optional clause, which may be added in an appropriate case. The second sentence of IPI Criminal No. 24.04 reads, in its entirety:
"However, the defendant was not entrapped if an agent of a public officer 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."
1 While the tendered clause, "which he is willing to commit," may be added to the instruction in an appropriate case, the last phrase of the sentence, "in furtherance of a criminal purpose which the defendant originated" is not optional. A showing that defendant is willing to commit the crime is not enough to overcome the defense of entrapment. A demonstration that he is willing to ...