APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION
545 N.E.2d 331, 189 Ill. App. 3d 524, 136 Ill. Dec. 807 1989.IL.1490
Appeal from the Circuit Court of Cook County; the Hon. Thomas J. Maloney, Judge, presiding.
JUSTICE DiVITO delivered the opinion of the court. BILANDIC, P.J., and HARTMAN, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE DIVITO
Defendant John Elvart was charged by indictment with two separate deliveries of less than 10 grams of cocaine. Following a bench trial, he was convicted and sentenced to four years' probation with the first six months in the custody of the Cook County Department of Corrections. He now appeals his conviction and sentence, raising as issues whether his trial counsel's assistance was ineffective; whether the prosecution was barred by either double jeopardy or collateral estoppel; whether the trial court improperly precluded testimony regarding an informant; and whether the trial court erroneously denied his motion for modification of his sentence. We affirm.
On March 27, 1985, defendant delivered one gram of cocaine to Special Agent Brian Kelly, an undercover Northeastern Metropolitan Enforcement Group police officer. This delivery occurred in the bedroom of defendant's apartment in the presence of a female informant who had introduced Kelly to defendant.
On April 5, 1985, Kelly purchased six-tenths of a gram of cocaine for $100 from defendant. This transaction also occurred in defendant's apartment and, according to defendant, the informant was also present. According to Kelly, the informant was not present during this transaction.
On April 16, 1985, Kelly purchased 2 1/2 grams of cocaine for $300 from defendant. Again, this transaction occurred in defendant's apartment. It is undisputed that the informant was not present during this transaction.
On May 13, 1985, Kelly, defendant, and Mark Allen, who had previously been introduced to Kelly as defendant's source, met in defendant's apartment to complete arrangements for the delivery of two ounces of cocaine for $3,500. After some conversation, Allen left defendant's apartment and returned with Daniel Interian. Kelly received a brown paper bag containing two clear plastic bags of cocaine. Defendant, Allen, and Interian were then arrested.
In connection with the May 13, 1985, transaction, defendant, Allen, and Interian were charged by indictment with calculated criminal drug conspiracy and delivery of more than 30 grams of cocaine. Defendant was tried separately before a jury and found not guilty. At that trial, defendant raised the defense of entrapment and the State introduced the April 5 and 16, 1985, transactions for the purpose of establishing defendant's preDisposition to commit the May 13, 1985, delivery.
Defendant was subsequently charged by indictment with two separate deliveries of less than 10 grams of cocaine in connection with the April 5 and 16, 1985, transactions. These charges are the subject of this appeal.
Defendant was represented at trial and sentencing on the subject charges by a person admitted into practice in Illinois in 1970, but who, at the time of defendant's trial, had been removed from the Master Roll of Attorneys, pursuant to Illinois Supreme Court Rule 756(d) (107 Ill. 2d R. 756(d)), for failing to pay his registration fee for 1987. The same person represented defendant at sentencing and was suspended from practice six months later because of a "mental infirmity, mental disorder, or addiction to drugs or intoxicants."
At trial, defendant admitted making the deliveries on April 5 and 16, 1985. As in the previous trial, he relied for his defense on the theory of entrapment. Defense counsel motioned to compel production of the informant, but that motion was denied. Without the benefit of a transcript from the former proceeding, defense counsel stipulated into the record the cross-examination of Kelly from the previous trial. He then cross-examined Kelly further regarding the entrapment defense. Kelly admitted that the informant was present during the March 27, 1985, transaction, but denied that the informant was present during either the April 5 or 16, 1985, transaction. Kelly was not permitted to reveal the identity of the ...