APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION
545 N.E.2d 1031, 190 Ill. App. 3d 63, 137 Ill. Dec. 270 1989.IL.1642
Appeal from the Circuit Court of Cook County; the Hon. Christy Berkos, Judge, presiding.
PRESIDING JUSTICE FREEMAN delivered the opinion of the court. WHITE and CERDA, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE FREEMAN
Eric Bjankini, a Northeast Metropolitan Enforcement Group undercover narcotics agent, in the summer of 1985, testified for the State. Working undercover as "Steve Hilton," Bjankini met with Edward Ruschinski on June 12, 1985, to discuss the purchase of cocaine. Ruschinski told Bjankini that he had access to cocaine. Three days later, Bjankini and Ruschinski again discussed the purchase of narcotics. Bjankini told Ruschinski that if he wanted to negotiate any transactions he could contact Bjankini via his pager. A week later, Ruschinski contacted Bjankini and asked if he was still interested in purchasing narcotics. Bjankini responded that he was, that he was always looking for a new supplier and that he would be willing to purchase whatever Ruschinski could get for him. Ruschinski told Bjankini that "he had a possibility of getting multiple ounces of cocaine" but did not name his source. Bjankini told Ruschinski to call him and let him know how much he could get and the price. Ruschinski contacted Bjankini a week later and told him that it looked like "we" would be able to get four ounces of cocaine around the 4th of July for $8,600.
Ruschinski contacted Bjankini on July 3 and informed him that he could get him four ounces of cocaine that day for $8,600. Bjankini picked Ruschinski up later that day and drove to the area of 70th and Harlem. During the drive, Bjankini and Ruschinski spoke about the impending transaction, about the fact that they would both benefit financially therefrom, about the fact that future transactions would be mutually beneficial, that "this could be a lucrative business" and that they "could have a longpermanent partnership." Ruschinski directed Bjankini to 6128 West 80th Place in Burbank, Illinois, and they were admitted by defendant into his home. Bjankini introduced himself to defendant as "Steve Hilton" and informed him that he was interested in purchasing four ounces of cocaine. Defendant told Bjankini that he did not have the cocaine at that time, that Bjankini should return in half an hour and that there was a possibility that he would have it at that time. While in his home, neither Bjankini nor Ruschinski threatened defendant.
After leaving defendant's home, Bjankini had Ruschinski count the $8,600. Upon returning, defendant informed Bjankini that his "connect" or supplier had nine ounces of cocaine but could not drop off the amount defendant had ordered because the supplier was at the Taste of Chicago festival. Bjankini told defendant that he was always interested in a new supplier, that he would still like to purchase more cocaine, that, if the cocaine came later that evening, Ruschinski could take possession and that he would get it from him. After defendant told Bjankini that he would try to get the cocaine on Friday, Bjankini left and Ruschinski stayed with defendant.
Ruschinski informed Bjankini on July 5 that defendant was having trouble getting the cocaine. Bjankini told Ruschinski to give defendant his pager number so that Bjankini could talk to him directly. Thereafter, Bjankini was paged with the code he had given Ruschinski for defendant. Bjankini called defendant, and defendant told him that he would be going over to his "connect's" house about 3:30 p.m. to get the okay to pick up the cocaine. Bjankini called defendant later and told him that he would be at his house at 3:45 to pick up the cocaine. Bjankini then called Ruschinski and told him he would meet him at 79th and Mobile at 3:30. Defendant paged Bjankini at 3:45 to tell him that he was on his way to pick up the cocaine.
After meeting Ruschinski, Bjankini had him count the $8,600 to be paid defendant for the cocaine. Upon arriving at defendant's home, defendant led them into the kitchen, and Bjankini observed a scale, some plastic "baggies" and a mound of white powder on a plate on the kitchen table. Defendant told Bjankini that "it was quality coke," and that "the weight was exact." He also asked Bjankini if he wanted to "zero out the scale," which meant to set the weight on the scale before weighing at no weight. Bjankini weighed the cocaine and informed defendant that it was correct. Ruschinski then advised defendant that he had counted the money and that it was in Bjankini's car. Bjankini took the cocaine, walked out to his car and gave a prearranged arrest signal. He and the team of agents surveilling the scene placed defendant and Ruschinski under arrest.
Defendant testified in his own behalf. In the summer of 1985, defendant was unemployed and was living with his mother. At that time, he had known Ruschinski for almost three years as a friend. Defendant had known Tony Creagh all of his life. Defendant denied ever having used, delivered or sold cocaine before June 1985. At that time, Ruschinski began telephoning defendant and asking for Creagh's phone number because he wanted to buy some cocaine from him. Defendant told Ruschinski that he did not "want to have any part of it." Between June and July 3, Ruschinski called defendant about 25 times and visited him about seven times. In one day during that period, Ruschinski called defendant five times. Ruschinski wanted defendant "to get a hold of [Creagh] for the purchase of cocaine." Defendant did not put Ruschinski in touch with Creagh nor did he agree to do anything with Ruschinski.
When Bjankini and Ruschinski came to his home on July 3, Bjankini asked defendant if the four ounces of cocaine were there. He also told defendant that he could make large amounts of money. Defendant responded that he did not have the cocaine and did not want any part in dealing with Bjankini and Ruschinski. Ruschinski, who was very upset, told defendant he thought the "arrangements were going to be worked out that day with Steve." Ruschinski also shook defendant by the shoulders and told him "that Steve had warned him and told him that it better be there that day." Ruschinski also told defendant "that Steve carried a gun at times." In response to defendant's statements, Bjankini asked defendant what was going on and said he "thought it was going to be here today." Bjankini also asked defendant whether he had gotten hold of Creagh. Defendant responded that he had not. Ruschinski again told defendant "that he meant business" and "[t]hat he wanted these four ounces of cocaine."
Defendant then told Bjankini and Ruschinski that he would contact Tony and for them to come back in half an hour. However, defendant did not call Creagh. When Bjankini and Ruschinski returned, they again told defendant that he could make thousands of dollars and asked if he "was going to set them up with Tony." Defendant again refused. Defendant had made no arrangements prior to this meeting to supply or deliver any cocaine to Bjankini or Ruschinski and never had any intention to do so. After Bjankini left defendant's home, Ruschinski asked defendant to take him to Creagh's house and defendant agreed. However, Creagh was not home. Defendant had not decided to deliver any cocaine to Bjankini when he returned from Creagh's house. He decided to do so later that evening when Ruschinski called him and told him that Steve was threatening Ruschinski and telling him that "his people were waiting for this product" and that "he was very fed up with it." Ruschinski also told defendant that he was in a bad situation and needed defendant's help. Thereafter, defendant called Creagh.
Upon calling Creagh, defendant told him that he knew that he dealt cocaine, that he knew someone interested in buying four ounces and that he wanted to send Bjankini and Ruschinski to his house. After telling defendant that "he didn't want any part of anyone he didn't know," Creagh agreed to "do the four ounces of cocaine" directly with defendant and told him "that if [he] did this for him, . . . [he] would make a lot of money as well." Creagh and defendant then agreed on a price of $7,500 for the cocaine. Defendant spoke with Ruschinski ...