Appeal from the Circuit Court of the Ninth Judicial Circuit, Knox County, Illinois. Honorable James B. Stewart Judge Presiding.
Released for Publication May 25, 1995.
Present - Honorable Allan L. Stouder, Justice. Honorable Tom M. Lytton, Justice. Honorable Michael P. Mccuskey, Justice. Justice Lytton delivered the opinion of the court: McCUSKEY and Stouder, JJ., concur.
The opinion of the court was delivered by: Lytton
JUSTICE LYTTON delivered the opinion of the court:
Lester W. Mixon, Jr., defendant, appeals from a final judgment of conviction entered in the circuit court of Knox County after a bench trial. He was found guilty of three counts of unlawful delivery of a controlled substance and one count of unlawful delivery of a look alike substance. We reverse and remand for a new trial.
Following defendant's indictment on four counts of unlawful delivery, defendant filed a waiver of his right to a jury trial and indicated his willingness to enter a plea of guilty to the charges. However, a short time later when defendant refused to agree with the factual basis for the plea as set forth by the State, the trial court rejected the guilty plea and set the cause for a bench trial.
At trial, Tazewell County Sheriff's Officer Shawn Meeks, an undercover agent with the Metropolitan Enforcement Group (MEG), testified that on three separate occasions during May and June of 1990, he arranged for a police informant to approach defendant about obtaining some cocaine for Meeks. Each time defendant was able to locate a supplier and obtain cocaine which Meeks purchased. The first transaction involved an eighth of an ounce for $300; the second, eight grams for $500; and the third, two quarter ounce bags for $800. A fourth transaction occurred in September of 1990 when Meeks encountered defendant in a tavern, and defendant offered to obtain some cocaine for him. This time the agent advanced defendant $125 for 1/16th ounce and received a white powder which was subsequently identified as not cocaine.
Defendant offered an entrapment defense as to the three counts charging unlawful delivery of cocaine. The informant testified on behalf of defendant, stating that although defendant was a cocaine user, he had never known defendant to deal in drugs. He testified that he had to talk defendant into obtaining the cocaine as a personal favor. Defendant testified that he had never sold drugs before these transactions and did so here only to help the informant, who was his friend.
In finding defendant guilty, the trial court specifically found that defendant was not induced to commit the first three crimes charged. The court sentenced defendant to a concurrent term of 15 years in the penitentiary on each of the first three counts and a concurrent term of five years on the fourth count.
In his post trial motion, defendant asked that the convictions be reversed because the evidence established the defense of entrapment. In the alternative, he asked for a new trial on the ground that the State failed to provide certain relevant police reports in advance of trial pursuant to the court's discovery order. After reviewing the documents involved, the trial court granted the motion for a new trial.
Defendant filed a motion to withdraw his waiver of a jury trial. The court denied the motion, indicating that it would not exercise its discretion in a manner that would allow defendant to use the first trial as a "test" run.
At the second trial, defendant and his counsel refused to participate in the proceedings on the ground that he would waive a possible double jeopardy claim. The trial court again entered a judgment of conviction on all four ...