APPEAL from the Circuit Court of McLean County; the Hon. JAMES
A. KNECHT, Judge, presiding.
MR. PRESIDING JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:
After a jury trial, defendant, David Gresham, was convicted of the delivery of a controlled substance containing less than 200 grams of amphetamines. (Ill. Rev. Stat. 1977, ch. 56 1/2, par. 1401(c).) Defendant was sentenced to 3 years' imprisonment. On appeal, he contends that the trial court erred by refusing his Illinois Pattern Jury Instructions, Criminal, instruction on entrapment, and by refusing to disclose the identity of confidential source No. 250.
A recitation of both parties' accounts of the events leading up to the defendant's sale of amphetamines to a law enforcement officer is necessary. At trial, Bloomington Police Officer Steven Reeter testified that he drove to Miller Park in Bloomington on the evening of November 15, 1979. Another person — confidential source No. 250 — was also in the car. Defendant and a woman companion approached and asked if they could sit in the car. After the defendant entered the car, defendant asked Reeter if he knew anyone who needed "whites." Reeter said that he would be interested if the "whites" were good, and made arrangements to meet defendant at noon the following day. Reeter did not know defendant.
The next day Reeter returned to the park and waited for defendant. Upon arrival, defendant asked Reeter how many "whites" he needed. Reeter responded that he would buy 200 if the price was $20 per 100. Reeter gave defendant $40, and defendant left the park in his pickup truck. He returned to the park about 15 minutes later and handed Reeter four small plastic bags containing white tablets. Defendant left Reeter's car, and Reeter took the tablets to his office.
Reeter also testified that as an undercover agent he had made between 50 and 60 "buys" of hard drugs. He attempted to gain the confidence of the people with whom he dealt, but did not smoke marijuana or take hard drugs in order to ingratiate himself with prospective sellers. However, Reeter sometimes "simulated smoking" marijuana by smoking a regular cigarette, holding the smoke in his lungs, and pretending to smoke a marijuana cigarette. Reeter testified that he did not drink beer or smoke marijuana with defendant.
During cross-examination of Reeter, the trial court sustained an objection to defense counsel's request for disclosure of the name of confidential source No. 250, who was also present in the car when defendant and Reeter initially met. (Prior to trial, the defense counsel had made the same request. However, the trial court had taken the motion under advisement.)
Although the defendant admitted selling amphetamines to Reeter, his account of the events was substantially different from Reeter's account. Defendant testified that one evening he and his woman companion were in a park when a car containing three people drove by. One of the passengers, Dan Grover, yelled for defendant's woman companion to come to the car. She went to the car and talked to one of the participants for about five minutes. Then, Reeter called the defendant to the car and invited him in. Once inside, defendant observed the passengers smoking marijuana and drinking beer. Defendant and his woman companion shared a beer and several marijuana cigarettes with the other passengers in the car.
Defendant testified that he noticed that Reeter was sweating and shaking even though his window was down and it was cold outside. Defendant thought that Reeter was going through withdrawal pains. Defendant was familiar with withdrawal symptoms because several of his friends had gone through withdrawal. Reeter said that he needed "whites" "real bad" because his regular supplier had left town. Reeter said he would pay $20 for 100 "whites." Defendant testified that he did not usually sell drugs but he agreed to help Reeter because he was acting as if he was "really tormented" by withdrawal pains. Reeter wanted defendant to get the drugs immediately, but defendant said that he would have to make some phone calls. He agreed to meet Reeter at the same place at noon of the following day.
Defendant testified that after staying in the car approximately another 45 minutes, he left the park. About two hours later, at 8 p.m., he received a telephone call from Reeter who reminded defendant that it was important to get the drugs. Defendant again agreed to meet Reeter the next day. Defendant received a similar call from Reeter at 2 a.m.
The next day, the defendant testified that he went to work at the family business. When he returned from lunch, he was told that Reeter had called twice to tell him not to forget to come to the park. Defendant testified that he had forgotten about the appointment. He met Reeter in the park and Reeter said that he wanted 250 tablets. Reeter, who was still appearing as if he was going through withdrawal pains, gave defendant two $20 bills and a $10 bill. Defendant made a telephone call from a laundromat near the park, and purchased five bags of amphetamine tablets. Defendant gave the entire $50 to the seller and he gave all five bags of the contraband to Reeter.
In rebuttal, Reeter denied that he had feigned withdrawal symptoms on November 15 and 16, or that he had telephoned defendant on either day. Reeter also denied that he had "simulated smoking" marijuana during the conversation with defendant on November 15.
Defendant does not argue that his trial testimony established the affirmative defense of entrapment as a matter of law; rather, his contention is that his testimony raised a factual question of whether he was entrapped, which should have been decided by a properly instructed jury. The trial court refused the defendant's jury instruction on entrapment because it thought that the defendant's evidence, even assuming its veracity, did not prove entrapment as a matter of law. In other words, the trial court found that the defendant had not presented enough evidence of the defense of entrapment to justify a jury instruction on that defense. The trial court, noting that it was not the trier of fact, apparently found that there was no evidence of inducement — "[H]e [defendant] was presented with the opportunity to commit an offense and he chose to do so."
• 1 In a jury trial, it is well established that the issue of whether the defendant had been unlawfully entrapped is a factual question for the jury (People v. Tipton (1980), 78 Ill.2d 477, 401 N.E.2d 528; People v. Estrada (1980), 91 Ill. App.3d 228, 414 N.E.2d 512; People v. Pates (1980), 80 Ill. App.3d 1062, 400 N.E.2d 553; People v. Carpentier (1974), 20 Ill. App.3d 1024, 314 N.E.2d 647) unless the court can decide the question as a matter of law. (Tipton; Estrada; Carpentier.) Here, the court refused the jury instruction because it found that entrapment did not exist as a matter of law. Thus, on review of this case, we must not act as finders of fact nor ...