Appeal from the Circuit Court of Winnebago County; the Hon.
David F. Smith, Judge, presiding.
JUSTICE UNVERZAGT DELIVERED THE OPINION OF THE COURT:
The defendant, Ricky T. Johnson, was found guilty of unlawful delivery of 30 grams or more of a controlled substance containing cocaine (Ill. Rev. Stat. 1981, ch. 56 1/2, par. 1401(a)(2)) by a jury in the circuit court of Winnebago County, and the trial court sentenced him to six years in the Department of Corrections.
He appeals raising three issues: (1) whether the conduct of the law enforcement officers was so outrageous that the defendant's constitutional right to due process of law was violated; (2) whether the trial court erred in failing to instruct the jury on the defendant's defense of outrageous government conduct; and (3) whether the trial court erred in limiting the defendant's cross-examination of special agent LaBarge.
The thrust of the defendant's arguments are that special agent LaBarge of the Illinois Department of Law Enforcement used a house of prostitution as his "front" and a prostitute and a pimp actively engaged in prostitution in order to engage individuals in the commission of offenses, thus abusing governmental power.
The evidence at trial disclosed the following: Joseph J. LaBarge, a special agent of the Illinois Department of Law Enforcement, with responsibilities in the undercover surveillance of narcotics traffic, testified that he first met the defendant on February 3, 1981, while he was working in an undercover role out of the Joliet area in Will County. In that capacity, LaBarge related that he and his supervisor, Carlos Hevia, went to a private "swingers" sex club in Aurora, Illinois. He admitted that he had been there on a number of prior occasions. The State's objection was sustained when LaBarge was asked who invited him. Officer LaBarge stated that he did not know if there was a membership or entry fee for this "club" because he was always allowed to enter without paying. LaBarge was admitted to the club by a man known as Frankie Herbert who LaBarge knew managed the club. Objections by the State to questions regarding LaBarge's prior relationship with Frankie Herbert and Herbert's prior drug sales to LaBarge were sustained.
LaBarge described the club as a two-story dwelling with a bar and stereo on the first floor and four bedrooms containing nothing other than mattresses on the second. LaBarge stated that after their arrival on February 3, 1981, he and Hevia went upstairs with Herbert's girl friend, Rhonda. In spite of their tousled and disheveled appearance when they returned downstairs, LaBarge claimed that they did not have any sexual relations with Rhonda but wanted to appear as though he had. LaBarge stated that he, Hevia and Rhonda were waiting for the defendant to arrive. LaBarge was unclear as to who introduced the defendant to them, stating that it was either Frankie or Rhonda. LaBarge told the defendant that he was self-employed in the home remodeling business. LaBarge and the defendant had a short conversation on narcotics. LaBarge told the defendant that he wanted to buy a gram of cocaine.
LaBarge stated that later that night he took a gram of cocaine off a triple beam scale that was on a desk by the front door of the club. He did not pay any money for the cocaine. LaBarge stayed at the club after the defendant left. LaBarge noticed that the scale remained at the club.
LaBarge also stated that there was another person, Hugh Farrell, at the club that night when his conversation with the defendant took place. LaBarge stated that he had known of Hugh Farrell before that night. The State's objections were sustained when counsel for the defense sought information regarding prior arrests of Farrell by Agent LaBarge.
Officer LaBarge testified that his next contact with the defendant occurred in the afternoon of April 1, 1981, when the defendant unexpectedly called the agent's "undercover" telephone number at his Joliet office. The defendant asked LaBarge if he was still interested in buying "two tickets" which LaBarge understood to mean two ounces of cocaine. The defendant stated that the price was $2,000 per ounce. LaBarge accepted. Although LaBarge wanted the defendant to come to Will or Kane County, he agreed to meet the defendant the next day about 3 p.m. at a K mart shopping center in Rockford, Illinois.
LaBarge said that on April 2, 1981, he and his six special agents from Joliet arrived in Rockford shortly after 3 p.m. They went to the Cherry Valley Mall where they met with Detective Kennett of the DeKalb County sheriff's office and deputies from the Winnebago County sheriff's office and officers of the Rockford police department.
LaBarge drove to the K mart shopping center. He parked in the middle of the parking lot. The other police officers were scattered throughout the lot. After about 10 minutes, a man LaBarge identified as the defendant arrived in his car. The defendant pulled alongside LaBarge's car and they discussed the transaction. The defendant wanted to leave the area but LaBarge did not want to go. Finally, LaBarge told the defendant that he had to check with some people because not all of the money was his.
LaBarge said he went into the K mart and met with special agent Earl Hernandez. LaBarge returned to his car and told the defendant he would follow him. The defendant told LaBarge that the "stuff" was in the defendant's pickup truck at a body shop.
LaBarge stated that he followed the defendant's car to the Keller Body Shop on Kishwaukee Street in Rockford. After parking their cars, the defendant pointed to a pickup truck and told LaBarge to go over to the truck and act like he was interested in purchasing it while the defendant got the keys. LaBarge went to the truck, opened the hood and looked inside. The defendant returned with the keys and told LaBarge to start the truck as though he was interested in it. He complied.
After LaBarge turned the engine off, he asked the defendant where the "stuff" was. The defendant replied that it was under the right floor mat. However, LaBarge could not find it when he picked up the mat. The defendant told the agent to slide over and he would show LaBarge where it was. LaBarge partially slid down the seat and the defendant got in the truck. The defendant pointed underneath the center section of the seat.
LaBarge testified that he reached under the seat and found two plastic bags. The two men sat up at that point to get out of the truck. They were surrounded by police officers and the defendant was placed under arrest.
LaBarge said that there was $4,000 in official advance funds in the trunk of his car during the transaction. He identified the two plastic bags taken from the pickup truck, which had white powder in them, later identified as cocaine.
Richard Paulas, a forensic scientist with the Illinois Department of Law Enforcement, testified that People's exhibit No. 1 contained cocaine. There was 27.6 grams in one bag and 27.9 in another.
Following the State's case in chief, the defendant renewed his motion to suppress the evidence, which was denied. His motion for a directed verdict was denied.
The defendant testified on his own behalf. His presentation of the facts differed from LaBarge's. The defendant admitted that he used cocaine. He knew Rhonda for about three or four years. She was a prostitute who worked out of the "swingers" club in Aurora. Rhonda had introduced the defendant to Frankie Herbert about three or four years ago. The defendant knew of the club through Herbert. He had been there on several occasions. The defendant saw people use cocaine at the club and he had also used cocaine there. He said he had been upstairs with Rhonda in the bedrooms.
The defendant said he never sold any drugs at the club. He went to the club on February 3, 1981, after Herbert called him. Herbert wanted the defendant to bring the registration papers on a dog which the defendant had sold to Herbert. Herbert told the defendant that Rhonda was free that night if he wanted any sexual activity. When the defendant arrived, Herbert took the papers and gave the defendant some money for them.
Herbert told the defendant that Rhonda was busy with someone. He asked the defendant for some cocaine for the man (LaBarge) upstairs with Rhonda. The defendant had about half a gram to a gram with him. The defendant gave the cocaine to Herbert but took no money for it. He said that ...