APPEAL from the Circuit Court of Cook County; the Hon.
BENJAMIN S. MACKOFF, Judge, presiding.
MR. PRESIDING JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:
After a jury trial, Walter Ball (defendant) was found guilty of delivery of a controlled substance, to wit, more than 15 grams of heroin on May 16, 1978. (Ill. Rev. Stat. 1977, ch. 56 1/2, par. 1401(a)(1).) He was sentenced to 6 years and fined $6000. Defendant appeals.
In this court, defendant contends the State did not prove beyond a reasonable doubt that he was not entrapped and also, his due process rights were violated by the State's failure to disclose evidence favorable to him.
Melvin Alexander, an undercover Chicago police narcotics officer, testified that on May 16, 1978, he telephoned defendant and told defendant he wished to purchase an ounce of heroin. He had spoken to defendant twice before. The two men agreed on a price of $1000 and also agreed to meet 15 minutes later. They did meet in Alexander's car. Defendant gave Alexander a plastic bag containing a brown substance and the officer gave defendant $1000. Officer Alexander had obtained this premarked money from Lawrence Evans, a Federal Drug Enforcement Agent. After defendant left him, Alexander met Evans and two other Chicago police officers, James Arnold and Wayne King. Alexander gave the plastic bag to Arnold. Alexander stated he did not inform anyone other than his fellow police officers of the transaction before it occurred and no one other than fellow police officers participated in the transaction.
Alexander further stated he first met defendant on May 9, 1978, when he bought some heroin from defendant for $100. An informant had arranged that meeting by telephone. Defendant was not arrested after the initial transaction. The officer also purchased heroin on May 12 from defendant.
Officer Arnold testified that on May 16, 1978, while he was with Officer King, he observed defendant leave his residence, enter a car and then drive to where Officer Alexander's car was parked. Defendant entered Alexander's car where he stayed 5 minutes. Defendant then returned to his car and drove away. Arnold and King met Alexander, who handed Arnold a plastic bag containing brown powder. Arnold took the bag to police headquarters. Arnold and King subsequently arrested defendant at his residence on May 22.
Arnold had previously seen defendant on May 9 and 12. Arnold did not set up the May 16 transaction and never contacted the defendant. He had no contact with anyone other than police officers concerning this transaction.
Federal Agent Evans and Officer King corroborated the testimony of Alexander and Arnold as to events that transpired on May 16. Evans also stated he had not discussed the purchase of narcotics on that date with anyone before it occurred. He did not talk to defendant, whom he had seen on one previous occasion. Officer King stated he searched defendant's residence at the time of his arrest on May 22, but none of the premarked bills given to defendant on May 16 were found.
Gerald Pazin, a Chicago police chemist, testified he tested the contents of the plastic bag. The bag contained 24.62 grams of heroin.
Sarah Simmons testified for the defense that she had lived with defendant for 7 years. Defendant had financial troubles in April and May 1978. In April 1978, Simmons and defendant entertained some people at their home, including a woman named Lee Etta. On May 8, Lee Etta called Simmons and asked to speak to defendant. Simmons gave her a telephone number where defendant could be reached. On May 13, Officer Alexander, using the name "Al", called and asked to speak to defendant. Simmons gave Alexander a number where defendant could be reached.
Defendant testified he was a carpenter working for the city of Chicago. He had never been arrested before. Sometime prior to May 9, 1978, Lee Etta came to defendant's home with some friends. Defendant had known Lee Etta for several years. Defendant told her he was in financial trouble. She told him she knew an easy way to make money. When she told defendant what it was, he told her he wasn't interested and he "was too old for that." Later that evening, he told her he'd think about it and gave her his number at work. Next morning, Lee Etta called him at work and they met in the park. Lee Etta gave him a small package and told him how much money he could make by delivering the package the next day. Defendant put the package in the glove compartment of his car.
The next day, Lee Etta called defendant at work and made an appointment to meet her and "Al" (Officer Alexander). Defendant got there, entered an automobile occupied by Lee Etta and Al, gave Lee Etta the package and was given money. He did not know if "Al" or Lee Etta gave him the money.
The next day, Lee Etta called defendant at work, and they met in the park again. She told him Al was a boyfriend of hers, and she did not want Al to know the package belonged to her. She also told defendant she could make a lot of money from Al and defendant could "make some money by bringing the package to her and Al." Defendant gave Lee Etta $100, the money he had received the night before, and she gave him $20 back. The next day, Lee Etta met defendant in the park and gave him another small plastic bag out of her purse. She told him to keep it until she called. She called defendant that same evening and told him to meet her and Al. They met on May 12 at the same place. At this meeting, defendant handed Lee Etta the package and he was given $500. Defendant then went home. Next day, defendant met Lee Etta at the park and gave her the money. She gave him $50 back.
On May 16, 1978, Lee Etta called defendant at work and then met him at the park. She gave him a larger package and told him to wait at home until she called. However, Al called instead and told defendant "Lee Etta couldn't make it." He told defendant to meet him at the same location. Defendant met Al and gave him the package. Al gave him $1000 in return. Lee Etta called defendant about midnight. They met at a designated time and place. She was with her sister. Defendant gave Lee Etta the money, and she gave him $50 back. That was the last time defendant saw Lee Etta. Defendant conceded he believed this plastic bag contained narcotics.
After this testimony had been heard, the State acknowledged there was an informant named Lee Etta involved in these transactions. The trial court ordered the police officers to undergo further examination by counsel and ordered the State to produce the informer in court.
Officer Alexander was recalled and testified he met Lee Etta twice prior to May 9, 1978, through another police officer. She had not previously been utilized by the police. To the best of his knowledge she was not then under the influence of narcotics. Lee Etta set up the controlled purchase of narcotics from defendant on May 9. She made a telephone call in Alexander's presence. She then told Alexander he could meet defendant at the time and place the officer ...