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03/13/87 the People of the State of v. Harold A. Foreman

March 13, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

HAROLD A. FOREMAN, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

505 N.E.2d 731, 153 Ill. App. 3d 346, 106 Ill. Dec. 184 1987.IL.308

Appeal from the Circuit Court of Lake County; the Hon. John L. Hughes, Judge, presiding.

APPELLATE Judges:

Justice Hopf delivered the opinion of the court. Nash and Dunn, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HOPF

Defendant, Harold A. Foreman, was charged by indictment with the offenses of unlawful delivery of a controlled substance (Ill. Rev. Stat. 1985, ch. 56 1/2, par. 1401(a)(2)) and unlawful possession of controlled substance with intent to deliver (Ill. Rev. Stat. 1985, ch. 56 1/2, par. 1401(a)(2)). Following a jury trial, defendant was found guilty on both charges. Judgment was entered on the verdict, and defendant was sentenced to 18 years' imprisonment and fined $100,000. Defendant appeals from the judgment and sentence.

In this court defendant contends: (1) that he was not found guilty beyond a reasonable doubt; (2) that the trial court erred in refusing his entrapment instruction; (3) that the trial court's sentence was improper and excessive; and (4) that the trial court erred in refusing to return bond money to defendant's uncle who had provided it.

Briefly summarized, the testimony at trial showed that Lawrence Oliver, an undercover police officer with the Lake County Metropolitan Enforcement Group , met defendant through George Seaverns. Seaverns had been previously arrested in November 1984 by another M.E.G. agent for possession of cocaine and subsequent to his arrest had agreed to introduce Oliver to various drug dealers. According to Oliver, no guarantees were made to Seaverns in return for these introductions. Seaverns was told only that his cooperation would be a consideration in the prosecution of criminal charges against him.

On February 7, 1985, Oliver and Seaverns met defendant and another individual at Bennigan's Restaurant in Northbrook, Illinois. At that meeting, defendant gave Oliver approximately three grams of cocaine for Oliver to try in the washroom. Upon returning from the washroom, Oliver and defendant reached an agreement concerning a sale for two kilograms of cocaine which was to occur on February 11, 1985, at the Lake Forest oasis. Defendant also informed Oliver that he could provide him with "two keys" per week.

On February 11 Oliver and defendant met in the parking lot of the Lake Forest oasis. Defendant parked next to Oliver's car, entered the car, and handed Oliver 1.5 kilograms of cocaine. Almost immediately thereafter, other drug-enforcement agents surrounded Oliver's car and arrested defendant. Defendant was taken to the Lake Forest police department, where he gave an incriminating, voluntary statement which was taped. This tape was admitted into evidence.

The defendant testified that he had first met George Seaverns in May 1984, at a party in the home of a mutual friend in Illinois while defendant was visiting from Florida. Persons at the party, including defendant and Seaverns, were doing lines of cocaine. Subsequently, in November of the same year, Seaverns phoned defendant in Florida inquiring about a source for buying cocaine. According to defendant, Seaverns contacted him about 20 times over the next two months. At the time of each contact, defendant denied knowledge of a source of cocaine until February 1985, when defendant contacted Seaverns and agreed to sell him two kilograms of cocaine for $82,000.

It was defendant's testimony that he agreed to deliver this cocaine because some Colombians in Florida who had given defendant cocaine at several parties attended by defendant had threatened to kill him if he did not either pay them for the cocaine or provide them with cocaine purchasers. According to defendant, he had no money, so he set up the sale with Seaverns.

Defendant stated that he was accompanied from Florida to Illinois by the Colombians and that at all times he was under their custody or surveillance. When defendant met with Seaverns and Oliver at Bennigan's Restaurant, he was accompanied by another individual named Terry who defendant maintained was working with the Colombians. Defendant testified that when he went to the oasis to meet Oliver, he was followed by the Colombians, who told him that if anything went wrong with the transaction, he would be killed. At the oasis, defendant pulled alongside of Oliver's car, entered it, and initiated the transaction by giving Oliver the cocaine. Defendant was then arrested by other agents and taken to the Lake Forest police station, where he gave a statement which did not mention any compulsion by the Columbians. Defendant explained to the officers at the station that a piece of paper, containing the name "Kiko" and a phone number, which was found on his person referred to his Colombian connection.

It was defendant's explanation that he did not mention the compulsion because he feared what the Columbians would do to him or his family. Defendant maintained that a beating he suffered at the hands of another inmate prior to his release on bond indirectly resulted from the Colombians. Defendant stated that the inmate who beat him up told him the beating was from Kiko and that Kiko had heard defendant had been talking. An inmate who witnessed the beating stated he never heard the word "Kiko" mentioned. On cross-examination defendant admitted that he never told his jailers what the inmate who hit him said. Also, on cross-examination it was shown that during the eight-month period defendant was out on bond and prior to his trial, no threats were made or injuries occurred to either his family or him.

The jury found defendant guilty of both unlawful delivery of a controlled substance and unlawful possession of a controlled substance with intent to deliver. The latter offense was dismissed based on defendant's conviction for the unlawful delivery of a controlled substance. The trial court entered judgment on the verdict. At a subsequent sentencing hearing, the court imposed a sentence of 18 years' imprisonment and a fine of $100,000. This appeal followed.

Defendant first contends that he was not proved guilty beyond a reasonable doubt since the State failed to sufficiently disprove defendant's affirmative defenses of entrapment and compulsion.

In Illinois the defense of entrapment is defined by statute as follows:

"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 ...


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