APPEAL from the Circuit Court of Will County; the Hon. ANGELO
F. PISTILLI, Judge, presiding.
MR. PRESIDING JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:
Defendant, Arturo Estrada, appeals from two convictions for delivery of more than 15 grams of a substance containing heroin. (Ill. Rev. Stat. 1979, ch. 56 1/2, par. 1401(a)(1).) The first of these deliveries occurred on February 13, 1979. The second occurred two days later, on February 15. The defendant, who was 28 years old at the time of his jury trial on these charges, was sentenced to concurrent terms of 10 and 11 years in the Department of Corrections. The jury also convicted the defendant of possession with intent to deliver more than 15 grams of a substance containing heroin. (Ill. Rev. Stat. 1979, ch. 56 1/2, par. 1401(a)(1).) This charge was dismissed by the court as arising from the same occurrence as the February 15 delivery. Two counts of calculated criminal drug conspiracy were tried separately by the court, and the defendant was acquitted of both charges.
• 1, 2 The defendant's first contention on appeal is that he was improperly denied proposed jury instructions dealing with the defense of entrapment. Although the rule has been criticized (see, e.g., Sherman v. United States (1958), 356 U.S. 369, 385, 2 L.Ed.2d 848, 78 S.Ct. 819, (Frankfurter, J., concurring); People v. Moran (1970), 1 Cal.3d 755, 463 P.2d 763, 83 Cal. Rptr. 411 (Traynor, C.J., dissenting)), both the Federal courts> and the courts> of our State have determined that, "unless the court could decide the issue as a matter of law, the factual issue of whether a defendant has been unlawfully entrapped is for the jury as part of its function of determining the guilt or innocence of the accused. Sherman v. United States, 356 U.S. 369, 377, 2 L.Ed.2d 848, 854, 78 S.Ct. 819 (1958)." (People v. Carpentier (1974), 20 Ill. App.3d 1024, 1027, 314 N.E.2d 647.) "The issue, therefore, before the court was whether the evidence against entrapment was so clear and convincing that it could be said as a matter of law that there was no entrapment." (People v. Carpentier (1974), 20 Ill. App.3d 1024, 1027, 314 N.E.2d 647.) Because lack of entrapment was found by the court as a matter of law, we look at the facts in a light most favorable to the defendant. 20 Ill. App.3d 1024, 1027.
On February 13, 1979, the defendant met Agent John Beck and Janice Bianchi, a police informant, at a Holiday Inn in Will County. There the defendant delivered slightly less than two ounces of heroin. Agent Beck paid the defendant $3,600, $1,800 for the heroin delivered on that date and $1,800 for a previous transaction. The defendant again met with Agent Beck and Janice Bianchi on February 15 at a Skelly Truck Stop. This time, the defendant himself was not in physical possession of the heroin. After a discussion with Agent Beck, the defendant joined Janice Bianchi in the restaurant. The defendant's cousin, George Estrada (who was tried separately), arrived and delivered 22 ounces of heroin to agent Beck. Both the defendant and George Estrada were then arrested. Each of these heroin deliveries was preceded by a series of telephone calls from Janice Bianchi to the defendant.
Five of these conversations were tape recorded and transcribed and are part of the record. In each of these conversations, Janice Bianchi would specify the amount of "stuff" required and the location to which it was to be delivered. For the February 15 meeting, the defendant suggested the approximate time. Janice insisted that the defendant meet the buyer personally, although the defendant was reluctant to do so. According to the defendant's testimony, these conversations were merely the culmination in a long series of incidents in which Janice Bianchi induced him to supply her with heroin. In August 1978, the defendant met Janice Bianchi for the first time through a mutual acquaintance, a man called "Chicken." The defendant believed that Chicken was involved in drug trafficking. In October 1978, the defendant and Chicken again saw Janice Bianchi in a bar and restaurant in Chicago. When Chicken left to talk with Janice's sister, Janice began to hug and kiss the defendant and told him that she would like to see him alone sometime. The defendant agreed. She called him the following week and arranged to meet the defendant at a motel. There they engaged in sexual relations. Later, Miss Bianchi again called the defendant. The defendant's cousin gave him the key to a friend's apartment in Chicago. The defendant met with Janice Bianchi there and on subsequent occasions and engaged in sexual relations with her. It was after they started meeting in the apartment that Janice Bianchi asked the defendant for the first time if he could supply her with drugs. The defendant at first told her that he thought Chicken had some, but Janice insisted she wanted another source. The defendant agreed to ask around.
According to the defendant, his cousin George was a source of heroin, and the defendant would serve as a go-between and translator for Janice Bianchi and George. It is not clear from the testimony of any witness in this case whether Janice Bianchi at first told the defendant she wanted drugs for herself or others or what quantity of drugs were at first delivered. It is clear that at some point Janice Bianchi's interest in narcotics was, at least in part, financial. The defendant appeared to have little difficulty in obtaining 2 or even 20 ounces of heroin, although he expressed great reticence at the prospect of obtaining 40 ounces. The defendant claims that he never received any money for his deliveries of drugs to Janice Bianchi, but, on the contrary, would usually give her money each time they met. He acknowledges having agreed with George to receive $625 for the February 15 heroin delivery to Agent Beck. Agent Beck testified that Janice Bianchi became an informant for his agency on February 3, 1979. There was no other evidence of Janice Bianchi's history as a police informant. Janice Bianchi did not testify. The defendant had no prior criminal record.
In Illinois, the defense of entrapment is established by statute. Section 7-12 of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 7-12) reads:
"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 has originated."
It has been held by the courts> that entrapment will lie only when the police officer or agent induced the commission of the crime and when the defendant has no predisposition to commit the crime charged. (See People v. Cross (1979), 77 Ill.2d 396, 405, 396 N.E.2d 812.) Neither party contends that the defendant was not induced to commit this crime by a police agent. The tape-recorded conversations between Janice Bianchi and the defendant reveal that the sales for which the defendant was charged were proposed by Janice Bianchi. Miss Bianchi established the amount of drugs to be delivered and their place of delivery, with the defendant merely affirming in extremely broken English. Beyond perfunctory agreement with the plans of Janice Bianchi, the extent of defendant's declaration during the whole of the five recorded phone conversations were as follows: He indicated that he would be available for the February 15 meeting at the noon hour; he expressed fear at handling the amount of money that would be involved were the purchase to involve 40 ounces; he expressed general fear at meeting with third parties; he expressed a desire to see Janice Bianchi alone; and he wished to exchange Valentine's Day greetings with Janice Bianchi. The trial court, however, concentrated on defendant's "predisposition." The court noted the 30 or so deliveries of heroin which defendant admits to have arranged for Janice Bianchi, and the court concluded "beyond a reasonable doubt" that the defendant was predisposed to commit the crimes with which he was charged. For this reason, the court refused to tender the proposed entrapment instructions.
In the case of People v. Carpentier (1974), 20 Ill. App.3d 1024, 314 N.E.2d 647, this court stated the rule, previously established by our supreme court, that the court does not weigh the evidence upon a question of whether any instruction is proper on a certain theory. Very slight evidence upon a given theory of a case will justify the giving of an instruction. (People v. Khamis (1951), 411 Ill. 46, 53, 103 N.E.2d 133.) It is not contended by defendant that the evidence presented at the trial is sufficient to constitute entrapment as a matter of law. Defendant contends merely that there was enough evidence to entitle him to benefit of an entrapment instruction to the jury. As we have already indicated, both the Federal courts> (Sherman v. United States (1958), 356 U.S. 369, 377, 2 L.Ed.2d 848, 854, 78 S.Ct. 819) and Illinois courts> have determined that the factual issue, of whether a defendant has been unlawfully entrapped, is for the jury as part of its function of determining the guilt or innocence of the accused (People v. Carpentier (1974), 20 Ill. App.3d 1024, 314 N.E.2d 647). The Illinois Pattern Instructions, approved by our supreme court, provide an instruction defining the entrapment defense, based upon the Illinois entrapment statute, set out in this opinion. (IPI Criminal No. 24.04 (1968).) In addition, there is a pattern instruction for those cases in which entrapment is at issue which charges a jury that the State must prove beyond a reasonable doubt all of the elements of the offense and "[t]hat the defendant was not entrapped." IPI Criminal No. 25.04 (1968).
Our supreme court recently stated that, when the defense of entrapment is raised in the circuit court, it becomes incumbent upon the State to prove beyond a reasonable doubt that entrapment did not occur. (People v. Cross (1979), 77 Ill.2d 396, 401, 396 N.E.2d 812.) We interpret these words to mean, as we have previously held, that when a defendant "elected to have a jury trial and not a bench trial he was entitled to have the jury determine the validity of his entrapment defense * * *." (People v. Carpentier (1974), 20 Ill. App.3d 1024, 1029, 314 N.E.2d 647.) However, in the same opinion, the supreme court stated:
"Cross contends, however, that his conviction should nonetheless be reversed because the circuit court refused to instruct the jury on entrapment. The circuit court specifically held that defendant had not met the qualification for the defense of entrapment, and it therefore refused the tendered instruction. We find no error in the ruling. The State's evidence established beyond a reasonable doubt that Cross was predisposed to commit the offense and that the idea for the sale originated with him. People v. Cash (1963), 26 Ill.2d 595, 597-98; People v. Guagliata (1936), 362 Ill. 427, 433." People v. Cross (1979), 77 Ill.2d 396, 407, 396 N.E.2d 812.
In the first case cited therein, People v. Cash, the supreme court stated: "[W]e believe the undisputed testimony of the People proves that the crime originated in the mind of the defendant and that he was apprehended by lawful artifice in the execution of a criminal act of his own conception. The trial court properly refused to instruct the jury in regard to the law of entrapment, since no question of fact was presented." (26 Ill.2d 595, 598, 188 N.E.2d 20.) In the other case cited by the supreme court in Cross, People v. Guagliata, the court stated: "Here the officers did no affirmative act whatever to incite or persuade the defendant to sell the morphine, but they did, as they had the right to do, afford him an opportunity to violate the statute. The court, under the evidence, would not have been justified in giving the requested instruction." 362 Ill. 427, 433, 200 N.E. 169.
As to defendant Cross, the defendant's own testimony indicated that he was predisposed to sell the heroin, and it was undisputed that the sale was originally proposed by the defendant himself. Thus, there was no evidence of any of the elements of entrapment. In light of these facts and the cases upon which the supreme court relied, we do not believe that the supreme court has, in the Cross case, removed the fact-finding function from the jury as to the issue of entrapment. In the absence of a specific statement by the supreme court to the contrary, we hold ...