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People v. Husted





APPEAL from the Circuit Court of Kane County; the Hon. JOHN A. LEIFHEIT, Judge, presiding.


Rehearing denied July 22, 1981.

The defendant was indicted on December 26, 1978, in Kane County for the December 3, 1978, unlawful delivery of more than 30 grams of a substance containing cocaine, a controlled substance. (Ill. Rev. Stat. 1979, ch. 56 1/2, par. 1401(a)(2).) Defendant pleaded not guilty and raised the affirmative defense of entrapment. (Ill. Rev. Stat. 1979, ch. 38, par. 7-12.) A jury found him guilty of the offense charged, his post-trial motion was denied, and he was sentenced to the Department of Corrections for six years, the minimum term permitted for this Class X felony.

The defendant asserts that he was denied a fair trial due to the trial court's refusal to allow him to testify about conversations he had with the State's informer whereby he was entrapped into committing the offense. He further asserts reversible error occurred as the result of the prosecutor's closing argument, and in permitting the testimony of a purported character rebuttal witness. We affirm.

The record disclosed the following sequence of events. In early October of 1978, the defendant made the acquaintance of Eugene "Big Mac" McWethy at a bar, at which time defendant gave him his home address. In mid-October, McWethy visited the defendant at his house and they had a conversation of several hours' duration. The court sustained the State's hearsay objection to the contents of the conversation and no offer of proof was made. The defendant next saw McWethy on October 31, when McWethy brought John Burns, a special agent of the Illinois Department of Law Enforcement, to meet him. The circuit clerk testified McWethy had been charged by information several days prior to this time on October 25 with unlawful possession of cannabis and theft, and that he had been released on October 30 on a recognizance bond. The clerk also testified McWethy's case was continued four times, once at defendant's request, once by agreement, and twice on motion of the State, and that a warrant for his arrest was issued on April 4, 1979. It was stipulated by the parties that the clerk's file on McWethy was true and correct.

Burns represented himself to be a "ramp rat" (a luggage handler) for Northwest Airlines. He asked the defendant if he had any cocaine and if he would sell him any. Defendant denied he had any cocaine, was in the business, or wanted to get into the business. McWethy then engaged the defendant in a 10-minute conversation outside the presence of Burns, the content of which was objected to as hearsay and sustained. No offer of proof was made. Burns renewed his request for cocaine, and the defendant repeated he did not have any and was not interested in getting any. Defendant testified he had never seen, tried or sold cocaine or any other drug in his entire life until he was entrapped into dealing with John Burns. Burns told defendant he would be able to get a new car and change his lifestyle if he got into the business. Burns and McWethy said they would be in touch, and McWethy telephoned the defendant a couple of hours later during the afternoon of the 31st. The State's hearsay objection to that conversation was sustained. No offer of proof was made. Burns and McWethy arrived at defendant's house shortly after the call, and Burns renewed his request for cocaine. McWethy motioned to the defendant to leave the house with him, and the defendant drove with McWethy to McDonald's in Dundee in the defendant's car. The defendant exited the car, and McWethy left with the car, saying he would go get the cocaine and scale. Defendant testified that in one of the earlier conversations that was not admitted by the trial court, McWethy had told him that he would make "$75.00 that day real easy." McWethy returned to McDonald's, gave defendant a bag saying it was a quarter ounce of cocaine and that he wanted $475 for it. McWethy also had a brown suitcase with him which contained a scale and various paraphernalia. The defendant testified McWethy instructed him how to use the scale and how to deal with Burns. They returned to defendant's house; two other persons were present there with Burns, one of whom was nicknamed "Rocky." The defendant testified Rocky had recently sold him a Doberman Pinscher, that he still owed him $100 for it, and that he went upstairs with Rocky for about five minutes because he was embarrassed to have a creditor there in front of the others.

The defendant's position at trial was that McWethy supplied him with the drugs that he was to sell. McWethy did not appear at trial in order to rebut the defendant's testimony. The State maintained that it did not know McWethy's whereabouts, and that no one except the defendant ever saw or heard from McWethy after the October 31 transaction. The State further maintained that Rocky conceivably was the defendant's source, since Rocky co-incidentally was present at the October 31 sale and at a later sale on November 15.

After Rocky left, the defendant and Burns went upstairs, where the defendant weighed the bag as instructed. Burns tested the substance by wetting his index finger and dipping it into the powder and then rubbing it between his upper lip and gum, and the defendant followed suit. Burns declared it was "good coke," and paid the defendant $550 for the bag which had weighed close to seven grams. Burns said he would be in touch because he would want to "cop" (procure) some more. Downstairs and out of Burns' presence, defendant handed the $550 to McWethy who gave him back $75. Before he and McWethy left, Burns chided the defendant for having a junk car and a "shack" house, noting that defendant would be in the money and his life would change if he kept on selling drugs. The defendant explained he did not have much money because he was just beginning to sell Amway products, and did not have a large clientele yet. He supplemented his income by working part-time as a waiter, and frequently borrowed money from his mother. The defendant denied ever stating to Burns that he could "do" a couple of ounces the next week or that "with a little notice" he could get Burns a quarter of a pound of cocaine.

The defendant received a phone call from Burns a few days or a week after October 31, asking defendant to sell him another quarter ounce. He continued to call every day for about a week. McWethy then telephoned the defendant on November 13 and they had a conversation, the subject of which was the quarter-ounce McWethy could deliver to him the next day. The State's hearsay objection to this conversation was sustained, and no offer of proof was made. When Burns called November 14, the defendant told him he thought he could get the cocaine for him. He explained he expressed no reluctance about securing the cocaine because McWethy had already delivered the quarter-ounce to him and he had temporarily stored it in an old refrigerator in a horse barn at his parents' home. The defendant explained that he put the cocaine there so that no one would accidentally find it at his house. He said he had allowed McWethy to bring him the cocaine because he succumbed to McWethy's suggestions of the amount of money he could make by selling drugs. McWethy stated he wanted $475 for the quarter-ounce, and cautioned the defendant against "messing up" on the money. He suggested that he take a little of the cocaine out of the bag and replace it with baking soda so he would be able to have a little for himself and still make $75. The defendant testified that he did do this.

At approximately 9 p.m. on November 15, Burns came to the defendant's house and was ushered upstairs where he and the defendant performed the testing ritual once again. Burns complained about the quality and refused to pay $550. They haggled about the price and at one point Burns told the defendant that a two-ounce transaction would be more profitable, and that Burns had a ready market in Madison, Wisconsin, "crying for it." The defendant testified Burns spent 15 to 20 minutes trying to convince him to make a two-ounce sale. Defendant then agreed to accept $530 and threw in the separate small package of cocaine that he had previously removed from the quarter-ounce bag.

Burns testified contrarily that the defendant had offered him a discount on the transaction since the defendant did not have the cocaine when he first arrived at 9 o'clock because Rocky, the defendant's source, was running late. Special Agent Petersik, who was observing the exterior of the house, testified that two male subjects and a female arrived and entered the house sometime after 9:30 p.m., and that Burns emerged with one small and one larger bag about 10 minutes after the female had come back out to the car, appeared to be looking for something there, and then re-entered the house. Burns testified the small package was given to him by the defendant as a sample of the kind of "killer coke" the defendant could get for him. Burns also testified that while he and the defendant were waiting for Rocky to arrive, the defendant received several telephone calls. After one such call, the defendant took out of the closet a small-size plastic garbage bag containing a leafy green substance that smelled to Burns like marijuana. Burns said the defendant divided the substance between two smaller bags while explaining to Burns that he wished to get out of the marijuana trade and get into cocaine exclusively, but that he had only four regular cocaine customers and couldn't make enough money with such a limited clientele. The defendant left the room with the two bags to answer a knock at the door downstairs, and returned upstairs without the bags. Agent Petersik testified that about six or eight cars came to and left the house during the time Agent Burns was inside.

Burns' testimony reflected that when Rocky arrived with a female and another man shortly after 9:30, Burns was asked to go downstairs while Rocky and the two others went upstairs. Burns testified the female came back downstairs, went outside, and then came back into the house. She talked with him for a few moments about the dog, and someone hollered to her from upstairs, whereupon she handed something from her pocket to someone on the stairs. The defendant testified that he still owed Rocky $100 for the dog at that time; the defendant opined that Rocky's girl friend was embarrassed by the debt discussion, and she went downstairs to get a pack of cigarettes and go to the bathroom.

The defendant denied he had any cocaine customers or ever sold or gave away any marijuana except to the extent he had infrequently smoked and then passed on a marijuana cigarette to someone else. The pre-plea report prepared by an adult probation officer after an interview with the defendant, who was described as having been "very open and honest," reflected the defendant used marijuana with his friends one to three times per month and used cocaine one to two times a week up until January of 1979. At trial, the defendant testified he never used cocaine before he met Burns on October 31, and that he never heard the expression "coke" until McWethy and Burns used the term. During rebuttal, a witness called by the State, Detective Donahoe of the Carpentersville Police Department, testified to a conversation he had with the defendant during June or July of 1977. During the conversation, the defendant expressed a desire to inform on persons in Elgin who he believed were dealing in drugs. He said he knew a lot about drugs because he had spent five or six thousand dollars of his parents' money on drugs when he was away at school, and that he had used and sold all kinds of drugs. On surrebuttal, the defendant denied he knew anything about drugs, and that during his conversation with Detective Donahoe he admitted he used marijuana occasionally but knew nothing about any hard drugs.

The defendant testified he next heard from Burns about a week after the November 15 transaction and that Burns wanted to "cop" (buy) a two-ounce amount of cocaine. Defendant said he told him he "didn't have any," "didn't want to get in on this level," "didn't know if [he] could get any even if [he] wanted to," "wasn't pleased with the business," and "it made [him] nervous." Burns told him he could make a lot of money, could get a nicer car, and should not worry because it would be safe. Another week passed and Burns began to call every day for about three consecutive days. The first two days' calls were repeats of his entreaty to sell him two ounces of cocaine. The third call, late on November 24, was to tell the defendant he had to go out west to attend his girl friend's funeral. The defendant had seen McWethy the ...

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