Appeal from the Circuit Court of Kane County; the Hon. Patrick
J. Dixon, Judge, presiding.
JUSTICE UNVERZAGT DELIVERED THE OPINION OF THE COURT:
The defendant, Leon Robert Norks, was convicted after a bench trial in the circuit court of Kane County of the offense of unlawful delivery of 0.2 grams of cocaine (Ill. Rev. Stat. 1983, ch. 56 1/2, par. 1401(c)), and the trial court sentenced him to three years' imprisonment.
The defendant raises four issues in this appeal: (1) whether the defendant was entrapped; (2) whether the outrageous conduct of the police amounted to a violation of due process of law; (3) whether the defendant was prejudiced by the State's violation of discovery orders; and (4) whether the legal representative of the defendant was hindered by an actual conflict of interest.
We resolve all of these issues against the defendant and affirm the judgment of conviction entered below.
Detective Robert Wochner of the Batavia police department testified that on April 10, 1984, he was working in street clothes as an undercover investigator.
He drove a yellow Trans Am to the Pride Gas Station at Route 25 and Fabyan Parkway in Kane County. Three or four minutes after he arrived at the gas station, a station wagon arrived with two occupants who parked and got out. Detective Wochner knew one as Mike Mason, who introduced him to the other person who was the defendant, Leon Norks. The three then got into the station wagon at the suggestion of the defendant. The defendant handed Detective Wochner a small brown bottle which contained white crystalline powder. Wochner asked, "How much?" The defendant stated, "Fifty Dollars, right?" Wochner then counted out $50 and handed it to the defendant, who counted it and put it in his pants pocket.
Detective Wochner performed a field test on the substance found in the bottle and it turned pink. A Du Page County sheriff's office forensic chemist testified the material found in the bottle was 0.2 grams of "L" cocaine, a controlled substance.
The wife, Mary Jo Norks, testified that on April 10, 1984, at about 5 o'clock p.m., Mike Mason came to the Norks' house at 430 North River Street, Aurora. Both Norks and Mason were in the kitchen when Mason took a bottle of cocaine out of his pocket and placed it on the kitchen table. She related that Mason asked Leon if Leon knew where they could sell the cocaine and Mason said he could not sell it because he owed some guys some money, so he found Leon so that he would do it for him. Mason also asked the Norks if they wanted to use some of the cocaine but they declined. Mrs. Norks did not see her husband handle the cocaine bottle. Mason and Leon Norks left the Norks' home a half hour after Mason had arrived.
Detective Robert Wochner, at the request of the defendant, was called as a court's witness. He testified that on April 10, 1984, he was called on the phone at the police department at 4:30 by Mike Mason. Mason indicated that he had an individual who wanted to sell one-half gram of cocaine for $50. Wochner arranged with Mason for the transaction to take place at the Pride Gas Station in Batavia at 6 o'clock p.m. Mason informed Wochner that the person selling the cocaine would be Leon Norks. Wochner knew at this time that Mason was acting as a confidential informant for the police department of Batavia, but he was unaware of any deal that may have been struck with Mason but knew he had pending charges.
The parties then entered into a stipulation as to the testimony of Officer Bainer of the Batavia police department if he were called as a witness, which was:
"Officer Bainer would testify that he was involved in the arrest of Michael Mason on March 28, 1984, for possession of cannabis and theft. That shortly after his arrest on these charges, he had a conversation with Mr. Mason, wherein, he indicated to Mr. Mason that if Mr. Mason would participate with the police in setting up three deliveries of a controlled substance that it would be his recommendation to the State's Attorney's Office of Kane County they would recommend sentence be imposed that does not require imprisonment or jail time. With that understanding, Mr. Mason agreed to cooperate with the police in attempting to set up three deliveries of controlled substances. That conversation took place sometime in late March 1984."
The defendant, Leon Norks, testified in his own behalf. He stated that Michael Mason, whom he had known for two or three years, came to his house on April 10, 1984, at 5 p.m. Mason and he talked for about a half hour. Mason told Norks he had some cocaine that he wanted to sell. Mason showed him a vial of cocaine. Mason asked Norks if he knew anywhere he could sell it. Norks said, "Man, I can't. I got no connections like that." Mason then proposed that Norks sell the cocaine to a person named Bob for $50 and that they split the proceeds. At first Norks refused, but Mason kept pushing the issue. Finally, Norks agreed to do it. They left the Norks' apartment, and the transaction went off as Detective Wochner stated it.
The defendant contends his conviction must be reversed because the State failed to prove beyond a reasonable doubt that entrapment did not occur. Specifically, he asserts the trial judge confused his willingness to commit the crime with his predisposition to commit it. He argues a showing that he was willing to commit the crime is not enough to overcome the defense of entrapment, citing in support People v. Pates (1980), 80 Ill. App.3d 1062, aff'd (1981), 84 Ill.2d 82. The defendant further argues that his entrapment defense must prevail unless it is shown that it was he who originated the criminal purpose. That is, the defendant asserts that the State must prove that he originated the criminal purpose as well as prove that he was willing to commit the crime.
• 1 It is true as defendant argues that the mere showing that he "willingly" committed the crime charged does not defeat his defense of entrapment. However, a demonstration that he was willing to commit it in furtherance of a criminal purpose which he originated is enough to overcome the defense. (People v. Pates (1980), 80 Ill. App.3d 1062, 1064, aff'd (1981), 84 Ill.2d 82.) In Pates, the court considered the propriety of an instruction which stated, in essence, that no entrapment of the defendant could be said to have occurred if the defendant was simply offered the opportunity or facility for committing a crime which he was willing to commit. In rejecting that instruction as an inept reflection of the law, the court pointed out that if such were the case, the defense of entrapment would be virtually unavailable in narcotics delivery cases, since the defendant's intent to deliver the substance in question could not be shown without a simultaneous showing of some degree of willfulness. "The question is not whether the defendant intended to commit the crime, but whether the intent originated in his mind." (People v. Pates (1980), 80 Ill. App.3d 1062, 1066, aff'd (1981), 84 Ill.2d 82.) "[T]he critical inquiry is whether the `criminal purpose' of selling [the substance] originated with the [defendant] [citation]." (People v. Cross (1979), 77 Ill.2d 396, 404, cert. denied (1980), 445 U.S. 929, 63 L.Ed.2d 762, 100 S.Ct. 1316.) In determining whether the defendant originated the criminal purpose, the defendant's predisposition and the governmental involvement should be considered. People v. Dempsey (1980), 82 Ill. App.3d 699, 701; People v. Cross (1979), 77 Ill.2d 396, 405, cert. denied (1980), 445 U.S. 929, 63 L.Ed.2d 762, 100 S.Ct. 1316.
• 2 It is axiomatic, however, that it is not the trial court's reasoning which is the subject of this court's review, but, rather, its judgment. The issue of whether a defendant has been unlawfully entrapped is a factual question for the trier of fact (People v. Gresham (1981), 96 Ill. App.3d 581), and the determination of whether the defendant was predisposed to commit the offense rests upon the facts of each case. (People v. Ball (1980), 91 Ill. App.3d 1041.) In this case, the trial judge was the trier of fact, and once the entrapment defense was raised, it became incumbent upon the State to prove beyond a reasonable doubt that entrapment did not occur. (People v. Dollen (1972), 53 Ill.2d 280, 284.) A reviewing court may not substitute its judgment for that of the trier of fact on questions involving the weight of the evidence or the credibility of the witnesses, and should not reverse a conviction unless the evidence is so improbable as to raise a reasonable doubt of guilt. People v. Myers (1980), 92 Ill. App.3d 229, 235-36; People v. Dempsey (1980), 82 Ill. App.3d 699, 703.
• 3 Sufficient evidence was introduced to justify the trial court's finding that the defendant was not entrapped.
Entrapment is an affirmative defense if established by the evidence. (People v. Fisher (1979), 74 Ill. App.3d 330; Ill. Rev. Stat. 1983, ch. 38, par. 7-14.) Section 7-12 of the Criminal Code of 1961 defines the defense:
"Sec. 7-12. Entrapment. 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." Ill. Rev. Stat. 1983, ch. 38, par. 7-12.
To establish the affirmative defense of entrapment, the evidence must disclose improper inducement on the part of the government and a lack of predisposition to commit crime on the part of the defendant. (People v. Cross (1978), 63 Ill. App.3d 628, rev'd on other grounds (1979), 77 Ill.2d 396, cert. denied, (1980), 445 U.S. 929, 63 L.Ed.2d 762, 100 S.Ct. 1316.) "[T]he government must, for the purpose of obtaining evidence, originate the crime and induce the defendant to commit it; and the defendant must be an `innocent' person who would not have committed the crime had he not been induced." People v. Johnson (1984), 123 Ill. App.3d 363, 369.
In People v. Myers (1980), 92 Ill. App.3d 229, 235, it was stated:
"In determining whether a defendant was predisposed to commit a crime, courts have looked at a variety of factors: whether a defendant was engaged in drug trafficking prior to the present incident or had otherwise engaged in criminal activity [citations]; easily acquiesced in the request to supply drugs and had ready source to purchase drugs from [citations]; familiarity with drugs [citations]; or initial reluctance or refusal to enter into a narcotics transaction. [Citations.]"
Some additional factors found to be indicative of a defendant's predisposition appear in People v. Husted (1981), 97 Ill. App.3d 160, 170-01; to-wit: the defendant's willingness to make a profit from the illegal act, his one-two-three times-per-month use of marijuana, his participation in the cocaine testing ritual, and his "cutting" of the cocaine with baking soda to increase the quantity from one to two ounces thereby justifying a higher price. In People v. Dennis (1981), 94 Ill. App.3d 448, 453, the defendant's "ready response" to the alleged inducement and the defendant's initiation of the final transaction were viewed as showing a propensity to commit the offense. The defendant there agreed to supply the cocaine after intermittent contacts by the informant over the course of only three days' time seeking ...