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06/30/88 the People of the State of v. Joe Schillaci

June 30, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

JOE SCHILLACI, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

526 N.E.2d 871, 171 Ill. App. 3d 510, 122 Ill. Dec. 478 1988.IL.1025

Appeal from the Circuit Court of Livingston County; the Hon. Charles E. Glennon, Judge, presiding.

APPELLATE Judges:

JUSTICE KNECHT delivered the opinion of the court. GREEN, P.J., and McCULLOUGH, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE KNECHT

Defendant Joe Schillaci was charged by indictment with two unlawful deliveries of cocaine to the State's confidential source, Ted Dunlap (Dunlap), on October 2 and October 16, 1986. Defendant's wife, Brenda, was also charged with the October 16 delivery. Defendant admitted the deliveries and presented the affirmative defense of entrapment. Brenda denied the charge against her and was acquitted. A Livingston County jury acquitted defendant of the October 2, 1986, delivery but found defendant guilty of the October 16 delivery. Defendant was sentenced to four years' imprisonment, fined $1,100 for the street value of the cocaine and ordered to pay an additional $5,000 discretionary fine, plus court costs. Defendant appeals the conviction, sentence and fine. We affirm the judgment of the trial court and modify the amount of the fine.

At defendant's trial, Special Agent Gary King from the Division of Criminal Investigation and Deputy Sheriff Robert Brandt testified they met with Dunlap on the morning of October 2, 1986, searched him and his vehicle for narcotics, and gave him $320 to purchase one-eighth of an ounce of cocaine from defendant. Dunlap was not carrying any drugs. King and Brandt followed Dunlap to and from defendant's home after which Dunlap handed over a plastic bag and advised the officers he had just purchased $320 worth of cocaine from defendant. King again searched Dunlap and his vehicle and found no narcotics.

Agent King and DCI Inspector Paul Joseph Lehmann testified that on October 16, 1986, they gave Dunlap $1,150 to purchase one-half of an ounce of cocaine from defendant. Again Dunlap and his vehicle were searched for narcotics. The officers separately followed Dunlap's truck from the meeting spot to a tavern in Pontiac.

King testified he saw defendant get into the driver's side of Dunlap's vehicle. The two drove around for awhile and then went to the entrance of the American Legion. King was parked about a quarter of a mile away from the building and observed a maroon Buick pull up behind Dunlap's vehicle. Defendant exited the truck and got into the Buick. The Buick went around the truck, made a U-turn and came back alongside the truck, where it stopped briefly. After the transaction, Dunlap and the agents met and Dunlap handed them a Crown Royal bag containing a clear plastic bag filled with cocaine that Dunlap said he had just purchased from defendant. Dunlap and his vehicle were searched and no narcotics were found.

Ted Dunlap testified he had been employed for six months in 1986 by Agent King as a confidential source to seek out alleged drug dealers in the Pontiac Caterpillar plant. A job was created for him with the plant cleaning service. The State compensated Dunlap for each prosecutable case.

Defendant was employed by Caterpillar as a labor bargaining chairman. Dunlap and defendant first met at Big Dad's Tavern in Pontiac. Dunlap testified since then he had seen defendant ingest and sell cocaine on several occasions. While at work at the plant, Dunlap asked defendant to sell him one-eighth of an ounce of cocaine and defendant agreed. The transaction took place on October 2, 1986, at defendant's home, where the cocaine was exchanged for $320. Dunlap saw defendant put the money in a briefcase containing an inch-thick stack of money. Dunlap said he delivered the cocaine to the State agents. He did not keep for himself any of the drugs he bought on behalf of DCI.

At work and via telephone, Dunlap arranged to purchase one-half of an ounce of cocaine from defendant on October 16, 1986. The purchase price was $1,150. According to Dunlap, on October 16, he met defendant in a downtown Pontiac parking lot. Defendant insisted on driving Dunlap's truck with Dunlap in the passenger seat. Defendant seemed nervous and expressed fear Dunlap was a government agent. When defendant threatened Dunlap, the latter offered to back out of the deal, but defendant refused and demanded the money.

Defendant drove Dunlap's truck to the American Legion entrance, where Brenda joined them in the Buick. Defendant grabbed the $1,150 and stuffed it into his pocket saying "just wait a minute." Dunlap testified defendant drove the Buick around the truck and tossed the cocaine, which was in a Crown Royal bag, through the truck window and drove away. Dunlap said he immediately drove to a prearranged meeting place and handed the cocaine to the State agents.

Dunlap testified he had used illegal drugs several times during the 1986 investigation to keep his cover intact even though such usage was against DCI rules. Dunlap did not report his drug use to Agent King. Dunlap admitted to taking prescription medications in quantities greater than directed by his physician.

Defendant took the stand and testified Dunlap approached him frequently in Big Dad's and asked to buy cocaine. Dunlap told defendant he ingested cocaine intravenously and needed some "real bad." Defendant said he told Dunlap he did not sell cocaine.

Defendant said Dunlap was especially desperate on October 1, 1986, and offered to trade defendant some prescription pills for cocaine. Dunlap was shaking and begged defendant for help. Defendant testified he reluctantly agreed to the sale. Dunlap asked defendant to divide the cocaine into two separate bags, one containing pure cocaine and one containing cut cocaine. The next day Dunlap came to defendant's home and exchanged $270 and some pills for the two bags of cocaine. Defendant said Dunlap stuffed the smaller bag into his crotch before he left the house.

Defendant testified Dunlap attended parties and ingested drugs 8 to 10 times with defendant in his home between October 2 and October 16, 1986. Defendant refused to become Dunlap's supplier. However, he agreed to purchase for Dunlap one-half of an ounce of cocaine to be delivered on October 16 and divided into two bags.

Defendant said he met Dunlap on October 16 in downtown Pontiac, drove around in Dunlap's truck for awhile and eventually went to the Legion billet. Defendant testified he gave Dunlap a Crown Royal bag containing two bags of cocaine in exchange for $1,150 even though defendant suspected Dunlap might be a government agent. Dunlap put one bag in his crotch and kept the other bag visible. After both men took two snorts of cocaine, defendant drove away in his Buick.

Defendant admitted he and his wife were habitual cocaine users and addicts at the time of the sales. They had been using cocaine intravenously for two months until they started to run out of money. The couple had a two-gram-a-day habit. Defendant said he paid for drugs with money he received from the sale of his home, with his Caterpillar paycheck and with funds in a bank account. Defendant denied owning chemical scales which would have enabled him to measure, bag and sell cocaine. Defendant named Ross Konrad as his drug supplier.

Prior to trial defendant made a motion to dismiss the indictment on the grounds that the cocaine delivery was made by defendant to Dunlap, a known drug addict and dealer. During discovery, defendant requested information which would tend to negate his guilt or reduce his punishment. The State responded it did not possess such information, although the State's Attorney had interviewed numerous individuals regarding Dunlap's illegal activities while working undercover for DCI. Defendant was denied an evidentiary hearing on the issue of Dunlap's conduct and credibility. In addition, a motion in limine precluded defendant from presenting evidence of his drug rehabilitation subsequent to the October 16, 1986, delivery.

Brenda Schillaci's testimony corroborated that of her husband. Several other witnesses for the defense described incidents when Dunlap had offered them illegal drugs and had used illegal drugs in their presence.

Ross Konrad, another Caterpillar employee, testified he had recently pleaded guilty to delivering cocaine to Dunlap and one other person. The State promised to recommend a two-year prison term in exchange for the plea and his testimony in this case. Konrad said he had been in the drug buying and selling business since November 1985. He and his girlfriend often went to the Schillacis' home, where he observed defendant use cocaine, pills and marijuana 75 to 100 times. At least 25 times, Konrad saw defendant cut cocaine, bag and weigh it on a triple beam scale. Konrad testified defendant bought cocaine in large quantities and paid for it with money and prescription pills.

Konrad and defendant once drove to Aurora, Illinois, where they purchased one ounce of cocaine for $1,900 which defendant said he intended to sell. Konrad said on a weekly basis from November 1985 until January 1986, defendant gave Konrad $1,100 to go to Aurora to purchase one gram of cocaine for defendant to sell. Konrad saw defendant sell cocaine at Big Dad's tavern at least five or six times. Defendant had bragged that in one hour in December 1985 he had sold 55 one-half-gram bags of cocaine.

Defendant admitted he bought drugs from Konrad and accompanied him once to Aurora but was merely along for the ride. Konrad had bought one ounce of cocaine that day but defendant denied he took part in the delivery. Defendant said he never sold cocaine at Big Dad's. The two deliveries to Dunlap were his only sales.

Following jury deliberations, Brenda was found not guilty of the October 16 delivery. Defendant was convicted of selling and delivering cocaine on October 16, 1986, but he was acquitted on the October 2 delivery.

At the sentencing hearing defendant and Brenda both testified as to their rehabilitation from drug dependency and their religious conversion. Several witnesses for the defense testified to their belief that defendant's religious conviction was sincere and that he no longer uses drugs. The couple testified they signed themselves into separate chemical dependency units on October 20, 1986, to be treated for their cocaine habits. They did not complete the programs. Later the two were treated on an outpatient basis. The treatment was cut short for lack of funds. Defendant again admitted himself into a hospital on November 12, 1986, and requested detoxification for cocaine addiction. He was discharged three days later.

The trial court sentenced defendant to four years' imprisonment in the Department of Corrections, fined him $1,100, for the street value of the cocaine, and a discretionary fine of $5,000, plus costs.

At trial defendant presented the defense of entrapment. On appeal he argues the State's evidence was insufficient to overcome his entrapment defense beyond a reasonable doubt. We disagree.

Entrapment exists "when the criminal design originates with the officials of the Government, and they implant in the mind of an innocent person the Disposition to commit the alleged offense and induce its commission in order that they may prosecute." (Sorrells v. United States (1932), 287 U.S. 435, 442, 77 L. Ed. 413, 417, 53 S. Ct. 210, 212-13; Ill. Rev. Stat. 1985, ch. 38, par. 7-12.) Whether the affirmative defense of entrapment was established as a matter of law depends on if (1) the government initiated the crime and induced the defendant to commit it and (2) the defendant had no preDisposition to commit the offense. People v. Marshall (1981), 101 Ill. App. 3d 244, 427 N.E.2d 1333.

Defendant argues he sufficiently proved the defense of entrapment. (People v. Fisher (1979), 74 Ill. App. 3d 330, 392 N.E.2d 975.) He maintains the trial court record indicates the idea of the cocaine sale originated with the State of Illinois through its agent, Ted Dunlap. Dunlap was employed and placed by DCI at the Caterpillar plant in Pontiac for the purpose of investigating the delivery of controlled substances there. As a result of this ...


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