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07/24/87 the People of the State of v. Stewart Solomon

July 24, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

STEWART SOLOMON, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

511 N.E.2d 875, 158 Ill. App. 3d 432, 110 Ill. Dec. 698 1987.IL.1059

Appeal from the Circuit Court of Cook County; the Hon. Paul A. O'Malley, Judge, presiding.

APPELLATE Judges:

JUSTICE LORENZ delivered the opinion of the court. PINCHAM and MURRAY, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LORENZ

Following a bench trial defendant was convicted of delivery of a controlled substance, methaqualone, in excess of 30 grams. He was sentenced to the minimum six years' imprisonment for a Class X felony and was ordered to pay a $2,000 fine. Defendant appeals urging the following. First, he was deprived of effective assistance of counsel. Second, he was not proven guilty beyond a reasonable doubt because, among other reasons, the evidence established entrapment as a matter of law. Third, the trial court improperly refused to allow defense counsel the opportunity to personally view a State informant's Metropolitan Enforcement Group file.

We reverse and remand for a new trial.

The following pertinent testimony was adduced at trial. Officer Victoria Gadowski, a Cook County sheriff working as an undercover agent for the Northwestern Metropolitan Enforcement Group under the code name of Robbin, testified that on January 10, 1983, she met defendant for the first time in the parking lot of Jack's Restaurant in Skokie. Also present was Mitch Freilander, known also as Max Miller, who initially introduced defendant to Officer Gadowski. Freilander was paid by MEG for setting up the meeting. During this meeting, which took place in defendant's car, defendant handed Officer Gadowski a clear plastic bag which purportedly contained 20 methaqualone tablets, commonly known as quaaludes. Officer Gadowski paid him $100 for the quaaludes and inquired if defendant could get her a better price if she bought more. He replied that he could not sell the tablets for less than $5 apiece because he was presently negotiating a purchase for 20,000 quaaludes and his source was going to charge him $5 each. He also stated that when he sold quaaludes at Houlihan's he averaged $2,000 a week and received between $7.50 and $8 per tablet. Defendant told Officer Gadowski that if she were interested in larger quantities, he could be reached between 9 a.m. and 6 p.m. where he worked or in the evenings at home.

According to Officer Gadowski, on January 20, 1983, she called defendant at work in order to set up another meeting for the purpose of purchasing more quaaludes from defendant. Officer Gadowski left her number because defendant was not in at the time, and he later returned her call. Arrangements were made to meet defendant on January 21, 1983, at 6:30 p.m. This meeting took place again in defendant's car, although this time Mitch Freilander was not present. At this meeting defendant exchanged 60 quaaludes for $300. After the transaction defendant told Officer Gadowski he could handle larger orders of quaaludes if she was interested but that he would need a day's notice. He also told her that he was looking for a partner for a purchase of 5,000 quaaludes. Officer Gadowski told defendant that she would consider it and would call him the following week.

On February 16, 1983, at 1 p.m., Officer Gadowski called defendant at work. During this conversation, Officer Gadowski arranged to meet again with defendant for the purpose of purchasing 300 quaaludes. At 6:40 p.m. on February 17, 1983, they met. Defendant handed Officer Gadowski a manila envelope. The envelope contained three clear plastic bags, each containing 100 tablets. Officer Gadowski then handed defendant $1,500. She left defendant's car and notified surveillance officers, who took defendant into custody. Defendant was charged with delivery of a controlled substance solely with regard to the February 17 transaction.

During cross-examination of Officer Gadowski on March 5, 1985, defense counsel requested that the trial court order production of the MEG file on Mitch Freilander, for viewing by the defense, or by the court in an in camera inspection. The trial court ordered that the file be produced for in camera inspection. After reviewing the file the court ruled that it would not be tendered to defense counsel because nothing was found in the file which related in any way to the offense with which defendant was charged.

Also called to testify for the prosecution was Stephen Hampton, a forensic scientist. Hampton testified that the three bags that were sold by defendant to Officer Gadowski on February 17, 1983, each contained 100 white tablets which were individually marked with the lettering "Lemmon 714," the manufacturer's designation for methaqualone. The net weight of the tablets was 244.3 grams. Mr. Hampton also testified that he randomly selected 10 tablets from the first bag and performed various tests upon them which produced results consistent with the presence of methaqualone. Mr. Hampton further testified that when the same tests were performed on 10 tablets randomly selected from the second bag and five tablets selected from the third bag, the same test results were produced, which led to his Conclusion that the tablets contained methaqualone.

On March 5, 1985, after the prosecution had rested the defense called defendant, defendant's father and a chemist to the witness stand. The evidence submitted, which will be elaborated upon later, supported defendant's theory of entrapment. In order to further establish the defense of entrapment, the defendant also requested that the court order the State to produce Mitch Freilander. The trial court then ordered the State to release Mitch Freilander's last known address and Bureau of Identification sheet so that he could be located. The case was then continued until March 11, 1985, so as to provide time in which to locate Freilander.

On March 11, 1985, the trial court granted another continuance to March 20, 1985, to allow even more time to ascertain Freilander's whereabouts. However, on March 20, 1985, in light of the fact that further attempts in locating defendant had been fruitless, the trial court ruled ...


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