Appeal from the Appellate Court for the Fifth District; heard
in that court on appeal from the Circuit Court of Madison County,
the Hon. William L. Beatty, Judge, presiding.
MR. JUSTICE KLUCZYNSKI DELIVERED THE OPINION OF THE COURT:
Steven Jones and defendant, Bill Tipton, were charged by indictment with selling a substance represented to be a controlled substance (Ill. Rev. Stat. 1975, ch. 56 1/2, par. 1404). The white powder that they had sold contained no controlled substance. Jones pleaded guilty and testified on behalf of the State at defendant's trial. A jury returned a verdict of guilty against defendant, and the circuit court of Madison County entered judgment and sentenced defendant to two years' probation, with conditions. The appellate court reversed, finding entrapment as a matter of law (68 Ill. App.3d 193), and we allowed the State's petition for leave to appeal.
The State's first witness was Michael T. Boyne, a narcotics agent with the Metropolitan Enforcement Group of Southwestern Illinois (MEGSI). Boyne first testified that on September 1 or 2, 1975, he went to defendant's home, accompanied by fellow agent Charles Nunn and an informer, Nancy Niehaus. Niehaus, who had briefly dated defendant, arranged the meeting to see if defendant could find any cocaine. Defendant's nine-year-old brother was also present.
Relating his account of the meeting, Boyne testified, "We had a general drug conversation and Nancy had asked him if he got the cocaine for us. * * * He said that he would have to make some phone calls. * * * He was telling us how he had taken some acid and he was out looking at the swimming pool and he kept telling the little brother to get out of the room and he told us that he was really funny when he gets him high." In his own testimony, defendant later admitted making the statement about getting his brother high. Also during the meeting, according to Boyne, defendant attempted two or three times to telephone someone whom he referred to as "Steve" in an effort to locate cocaine.
Boyne further testified that on September 3, 1975, he called defendant at 4:30 p.m., and defendant informed Boyne that a meeting was arranged with a third party for 6 p.m. that day at the Funland Miniature Golf Course. According to Boyne, defendant indicated that the third party had $30 worth of cocaine which could be broken down into six or seven "dime" bags. Boyne drove to defendant's home, picked up defendant, and they then proceeded to Funland. On cross-examination, Boyne explained that he picked up defendant because he did not know the party with the cocaine.
Boyne testified that they arrived at Funland at approximately 5:40 p.m. and began playing pinball. A few minutes later, Steve Jones arrived and defendant introduced him to Boyne. According to Boyne, he, defendant and Jones engaged in general conversation, and defendant shortly thereafter asked Jones if he had the "stuff." Jones suggested that they go to his car.
Boyne testified that, while in the car, he, defendant and Jones again held a general conversation on different topics, including drug usage, and that Jones handed him an aluminum package in exchange for $30 in MEGSI funds. Boyne testified that Jones said that the package contained "half cocaine and half speed." Laboratory tests, however, later indicated that no controlled substance was present.
Boyne also testified that Jones offered to get Boyne LSD, cocaine or anything else that Boyne wanted. According to Boyne, Jones said that Boyne could contact him through defendant. Over objection of defense counsel, Boyne then testified that defendant arranged a similar sale with Jones approximately one month later, on October 1, 1975.
On cross-examination, defense counsel asked a series of questions to ascertain the nature of Boyne's contacts with defendant. In response to these questions, Boyne testified that he never met defendant before September 1975; that, following their initial meeting, plans for a drug sale were not consummated; that he never saw defendant handle or receive money for drugs; that defendant did not say that he had any drugs but that he could get some; that defendant used the word "cocaine" rather than some slang term; that defendant never solicited Boyne to sell drugs; that, following the September 3 sale, Boyne called defendant; and that, following the October 1 sale, Boyne called defendant once or twice more without any results, either because defendant could not get anything or because Boyne failed to follow up on his initial effort.
On redirect examination, Boyne testified that, if he called defendant and defendant did not then have anything, defendant would tell him to call back.
Steven Jones also testified on behalf of the State. Jones first testified that he received several phone calls from defendant in which defendant asked whether Jones had obtained any cocaine for Nancy Niehaus' "boyfriend," referring to Boyne. Jones reiterated the details of the September 3 meeting and sale, and he then testified that he knew defendant from school and had known him for approximately 1 1/2 years.
On cross-examination of Jones, defense counsel again propounded a series of questions to ascertain the nature of the witness' contacts with defendant. Jones testified that defendant never touched the drugs sold or received any money from their sale; that defendant never before had brought anyone to buy drugs; and that he had no agreement with defendant to arrange sales. Though apparently not anticipated by defense counsel, Jones also testified that, following the September 3 sale to Boyne, defendant brought a friend to buy drugs but that no more drugs were actually sold.
In his defense, defendant pleaded entrapment (Ill. Rev. Stat. 1975, ch. 38, par. 7-12), claiming improper inducement by Boyne and Niehaus, the latter said to be an agent of the government by virtue of her role as a paid informer. Defendant testified that he had dated Niehaus for three or four weeks but had ceased dating her a couple of weeks before Niehaus brought Boyne and fellow MEGSI agent Nunn to defendant's home. At his home, according to defendant, the parties talked on various topics but not drugs.
Also according to defendant, on the next day, Niehaus called and asked if defendant could get her some cocaine, and he replied that he did not know and would have to see what he could do. According to defendant, Niehaus called him again, asking defendant again to try to get some cocaine and saying that the favor would be returned. Defendant testified that he had thought no more of finding cocaine until Niehaus called and again asked if he had found anyone to sell cocaine to Boyne.
Defendant testified that he saw Steve Jones at school the next day, and Jones said that he was selling cocaine and that defendant should let him know if he knew of anyone who wanted to buy any. Defendant testified that he had known Steve about six months and that it was known around school that Steve was "into drugs."
Defendant testified that, following the discussion with Jones, he received a call from Niehaus asking if he found anyone who would sell her cocaine, and he gave her Jones' name. According to defendant, he then informed Jones that he knew someone who wanted to buy cocaine, and Jones suggested Funland as a meeting place. Defendant testified that he never used drugs, never had done anything like this before, and had arranged the sale only to do Niehaus a favor. He also testified that Niehaus thanked him for arranging the sale and said that she would return the favor.
Defendant next testified that, on the day of the sale, September 3, he, his brother and a friend were planning on going to Funland to play pinball and were waiting for the friend to finish washing dishes when Boyne arrived, asking where Funland was located. According to defendant, he gave Boyne directions but Boyne asked defendant to accompany him since both were going to Funland and since Boyne was not sure where it was located. Defendant agreed, and he and his brother left with Boyne.
Defendant's account of the details of the actual sale followed and was substantially similar to that related by Boyne. On cross-examination, defendant admitted that the idea of getting the cocaine from Jones originated with him, but he reiterated that the ...