APPEAL from the Circuit Court of Morgan County; the Hon.
GORDON D. SEATOR, Judge, presiding.
MR. JUSTICE MILLS DELIVERED THE OPINION OF THE COURT:
Was Garcia entrapped by the police into committing this burglary?
He was already predisposed to perpetrate the offense.
A jury found Jesus Garcia guilty of committing a burglary at the Grace Corey residence in Jacksonville, and he was sentenced to imprisonment for 5 years.
On appeal, defendant contends (1) that the State failed to prove beyond a reasonable doubt that he was not entrapped into committing this offense, (2) that his representation by appointed counsel was ineffective, and (3) that the victim was erroneously permitted to testify that her home had been burglarized on a prior occasion.
The evidence presented at trial focused on the defense of entrapment. On the evening of May 12, 1980, Detectives Randy Duvendack and Dale McKenna were positioned in the bushes behind the Corey residence and observed defendant and another man enter the backyard of the residence. (Defendant was inside the Corey garage when he was arrested by Detective McKenna.)
Officer John Lael and Detective Gerry Lieb, who had been cruising the area in a pickup truck, went to the Corey residence when they heard Officer McKenna yell. Lael testified that Randy Walden — who was with defendant — was working with the police in exchange for an agreement that he would not be prosecuted for certain alleged offenses.
Detective Lieb and Officer Lael had discussed Walden's willingness to work with the police. Walden had informed Detective Lieb of earlier occasions when he and defendant had committed burglaries. (The defendant had already been investigated for an earlier burglary.) During the afternoon of May 12, Walden informed Detective Lieb that defendant would do a burglary with him that evening. It was Detective Lieb's idea to use the Corey residence as the site of this burglary.
Randy Walden — the informer — testified that the police officers wanted to catch defendant. Walden suggested committing this specific burglary to defendant after Garcia expressed a willingness to commit a burglary and led the defendant to the Corey residence. Officer Lieb had earlier told Walden to be there between 9 and 11 p.m. Walden denied, however, that he and defendant had ever committed any other burglary.
Assistant State's Attorney Tim Olsen was called as a witness by defense counsel. He had discussed entrapment with Detective Lieb in March 1980. Lieb had asked whether it would be entrapment for an informant, who had committed burglaries with a certain person, to set up a burglary and tell the police when the burglary would occur. Olsen told Lieb that such a situation is not entrapment.
• 1 Defendant contends he was entrapped into committing this offense and requests this court to reverse his conviction. The defense of entrapment is found in section 7-12 of the Criminal Code of 1961:
"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 ...