Appeal from the Circuit Court of Cook County. The Honorable William Cousins, Judge Presiding.
DiVito, Scariano, McCormick
The opinion of the court was delivered by: Divito
Presiding Justice DiVito delivered the opinion of the court:
Defendant Michael Walker was indicted with four other men for delivery of more than 100 grams of a powder containing cocaine, a controlled substance. A jury found him guilty of the charged offense, and the court sentenced him to nine years' imprisonment and fined him $5,600 as street value of the seized cocaine. Defendant appeals, contending that the circuit court erred in refusing to instruct the jury on the entrapment defense and in denying his motion for disclosure of the identity of a confidential informant. He also contests the amount of his fine. We reverse the judgment and remand for a new trial.
At defendant's jury trial, *fn1 first to testify was Michael J. Cooper, an undercover Illinois State police officer, who met defendant for the first time on July 13, 1988, when a confidential informant, whom he identified under her alias name of Kim James but whom defendant knew as "Jennifer," took him to defendant's house. Defendant, Cooper, "Jennifer," and another man drove to a nearby location to purchase one-eighth ounce of cocaine for $180; defendant and the other man alighted from the car and made the purchase. Cooper then asked defendant if he could get eight ounces of cocaine. Defendant replied that he could, and Cooper wrote down his beeper number for him. Cooper did not see or hear from defendant until two weeks later, on July 27, when defendant called Cooper's beeper number at 11:30 a.m. When Cooper returned the call, defendant offered him eight ounces of "good quality" cocaine for $7,600; Cooper accepted the terms. In the same telephone conversation, a man who identified himself as "Silkie G." said that he could deliver eight ounces of good quality cocaine. They arranged a meeting at 4 p.m. that day in a shopping center parking lot.
Cooper arrived ten minutes early with another undercover officer, Clem Ferguson, in the car and others on surveillance. Defendant was already there; he and another man, later introduced by defendant as Silkie G., approached Cooper's car from different directions. After telling Cooper he would fetch the cocaine and return momentarily, Silkie G. drove away in a brown Cutlass. Meanwhile, Ferguson moved to the back seat of Cooper's car and defendant sat in the front seat. Defendant told Cooper that Silkie G.'s real name was Eric Jones.
After waiting a while, Cooper asked defendant to call Jones. Defendant made a ten-minute call from the nearby pay phone, returned to the car, and went back to make a few other calls. When defendant returned to Cooper's car again, Jones arrived alone in the Cutlass. Jones explained to Cooper that the runner had car trouble, and he left after saying he would return in a few minutes. When Jones returned at 4:30 p.m., another car followed him into the parking lot. The two cars parked about 100 feet from Cooper's car. Four men, including Jones, alighted from the cars and talked for 30 seconds. Jones walked towards Cooper's car, clutching the front of his shirt with his right hand. Defendant left Cooper's car, and Jones took his place. Cooper asked if Jones had the cocaine, and he said he did. Jones then pulled a white Walgreen's bag from under his shirt and gave it to Cooper, who examined it and then handed it to Ferguson for his inspection. It contained four clear plastic bags of white powder. Cooper pulled out a "flash roll of money" and began counting it. Cooper then gave a prearranged signal to the other law enforcement agents. After defendant, Jones, and the other men were arrested, Cooper field-tested the white powder for the presence of cocaine; the test was positive. He sealed the Walgreen's bag and each of the four clear bags with tape, placing his initials and I.D. number on the tape. Cooper kept the bags at his home overnight in a locked cabinet and took them the next day to the crime lab, where he gave them to Richard Paulas for testing.
Sergeant Clem Ferguson's testimony paralleled that of Cooper. The testimony of Officer James Kizart, who was on surveillance, was substantially similar.
After Cooper gave him the bags, Richard A. Paulas, a forensic scientist for the Illinois State Police in 1988, tested the white powder for the presence of controlled substances. Until Paulas began the tests, the bags were sealed and placed in an evidence vault; when he retrieved them, they were still sealed. Before testing, Paulas weighed the white powder on a scale that had been tested for accuracy; it totaled 106.7 grams. *fn2 He performed a preliminary screening test on powder from each of the four bags, the results of each indicated the presence of cocaine. Paulas then conducted a number of other tests, the results of which led him to form his expert opinion that the white powder here contained cocaine. He taped the bags closed after analyzing the powder, and he noted that the tape he saw in court was the same he had used to seal them.
After his motion for a directed verdict was denied, defendant testified in his own defense. He first met a man named Greg in late 1986, when defendant worked for him delivering telephone books. Defendant did not hear from Greg again until late May 1988, when he began calling defendant repeatedly at home. Defendant described conversations in which he told Greg that he "didn't get involved in those type of things" and that he purchased only in quantities sufficient for his own consumption. Eventually, Greg asked if defendant wanted to meet his sister, "Jennifer." Defendant and "Jennifer" conversed on the telephone, and he told her he used cocaine and that he wanted to do cocaine with her. Defendant first saw "Jennifer" in person on July 13, when she came to his house with Cooper, whom she introduced as her cousin. When she asked defendant if he knew where to obtain a small amount of cocaine, he took her, Cooper, and another friend to get it. Cooper and "Jennifer" gave him money to buy the cocaine. When defendant returned to the auto, he gave Cooper the cocaine, which Cooper inhaled and announced was "pretty good."
The following day, "Jennifer" called him and said Cooper wanted more cocaine. She called again that night and asked him to get eight ounces of cocaine; Greg too called daily with the same request. Defendant told each of them that he did not get involved in purchases of such large quantities. Tired of Greg's calls, and in hopes of receiving some cocaine for himself as a reward, defendant admitted to calling Cooper on July 18, 1988 to arrange a cocaine connection. On that day, he and Cooper unsuccessfully attempted to purchase cocaine from the seller in the earlier transaction and three other sellers. Although "Jennifer" ceased her calls, Greg continued his almost daily barrage of telephone calls. On the morning of July 27, defendant found a cocaine source, called Officer Cooper, and helped arrange a place and time for the delivery. He denied, however, seeing the transaction involving cocaine, and when asked about his knowledge of the cocaine transaction that was to occur that day, defendant gave the following testimony in response to the prosecutor's questions:
"Q. And you knew that a cocaine transaction -- that there was going to be a sale of cocaine when Cooper and Silky G[.] got together, right?
Q. Well, you thought Cooper and Silky G[.] were going to try ...