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05/09/96 PEOPLE STATE ILLINOIS v. DANA SHAWN DAY

May 9, 1996

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
DANA SHAWN DAY, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois. No. 94-CF-5294. Honorable Stephen D. White, Judge Presiding.

Released for Publication June 13, 1996.

Present - Honorable William E. Holdridge, Presiding Justice, Honorable Michael P. Mccuskey, Justice, Honorable John F. Michela, Justice. Justice Michela delivered the opinion of the court: Holdridge, P.j. and McCUSKEY, J., concur.

The opinion of the court was delivered by: Michela

JUSTICE MICHELA delivered the opinion of the court:

Defendant Dana Day was indicted by a Will County grand jury on two counts of unlawful delivery of a controlled substance within 1000 feet of a public park and one count of unlawful delivery of a controlled substance within 1000 feet of a school, and three counts of unlawful delivery of a controlled substance. 720 ILCS 570/401(c)(2); 720 ILCS 570/407(b)(1) (West 1994). Defendant pled not guilty and raised the affirmative defense of entrapment. 720 ILCS 5/7--12 (West 1994). Following a jury trial he was convicted and sentenced to concurrent terms of seven years incarceration.

The issue presented for our review is whether the evidence adduced during the State's case in chief was sufficient to rebut thedefense of entrapment beyond a reasonable doubt. For the reasons set forth below, we hold that the State's evidence did not rebut the defense of entrapment beyond a reasonable doubt and that the defendant was entrapped as a matter of law. Accordingly, the conviction is reversed.

The Metropolitan Area Narcotics Squad (MANS) launched a police investigation called Operation Cooperation Two. The investigation utilized undercover police officers to assist neighboring police agencies by making controlled buys of crack cocaine and other drugs outside of the undercover officer's home jurisdiction. Joliet police officer Anthony White was a MANS officer who assisted the city of Bolingbrook police department with Operation Cooperation Two.

In the early summer of 1994 Marla Nobles, a former gang member, approached police authorities to discuss becoming a paid informant. Nobles was referred to special MANS agent Jeff Lockard who recommended she become a confidential source working on Operation Cooperation Two. Nobles was paid $100 for each introduction she made between an undercover officer and an alleged drug dealer.

In May of 1994, twenty-two-year-old defendant Dana Day returned home to Bolingbrook for the summer from the University of Wyoming. Day and Nobles met coincidentally at a J.J. Pepper's gas and convenience store in Bolingbrook where they exchanged telephone numbers to resume an eighth grade acquaintanceship. One week later Day was at a friend's home in Bolingbrook when Nobles arrived. Day and Nobles were speaking about going out on a date when she asked him to get her cocaine. Day refused, telling Nobles he "had nothing to do with it, I didn't want to take part in it." A few days later he ran into Nobles and she again asked him to obtain cocaine for her. Day told Nobles, "I couldn't get any drugs for her, that I wasn't engaged in anything like that." Day and Nobles also spoke on the telephone and, on at least three occasions, Nobles asked Day to obtain drugs and he again stated he could not. Day testified he was romantically interested in Nobles and they went on a date. While on their date Nobles persistently requested drugs. This time Day stated, "I don't know, I'll see what I can do. I can ask somebody, but I don't know."

On June 23, 1994, a few days after their date, Nobles paged Day at 10:10 p.m. and said she and her girlfriend wanted to meet with him and his friend Jeff Arnold at the Speedway gas station at the corner of Boughton and Schmidt roads to "go out and do something." Day and Arnold drove in Arnold's car to the Speedway gas station and Nobles arrived unexpectedly with her friend "Tony" (Officer White). Nobles asked Day to get some drugs for her or her friend "Tony." Day asked his friend Arnold if he knew anyone who could get drugs and Arnold replied that he knew someone in Cicero. Noblesasked Day to get an eight ball. Day asked what an eight ball was and was told an eight ball is an eighth of an ounce of cocaine. Nobles claimed the cocaine was for her friend "Tony" who needed the cocaine as a favor. Day asked "Tony" to come to Cicero to get the cocaine. "Tony" declined to accompany Day saying he did not know and trust him well enough to travel to Cicero. Day requested money for the cocaine but "Tony" said he would pay for the drugs when Day returned.

When Day and Arnold returned to the Speedway gas station Day gave "Tony" the cocaine and received $160, earning a $10 profit on the $150 eight ball of cocaine. Although the indictment alleged this delivery occurred within 1000 feet of a public park, trial testimony revealed the delivery did not occur within the requisite 1000 feet. Consequently, the State dismissed this charge at trial.

Agent Lockard and other Bolingbrook police officers were engaged in a mobile surveillance of the drug transaction. Agent Lockard followed Arnold's car from the Speedway to a J.J. Pepper's gas station where Day and Arnold bought gasoline. Agent Lockard then instructed Officer Hild to make a traffic stop on the car, if at all possible, to positively identify the car's occupants. Officer Hild stopped the car for speeding and obtained identification verifying Jeff Arnold and the defendant as the car's occupants.

A few days later, White paged Day and asked for more drugs. Day stated "it was possible, but I don't know. I have to make some phone calls and ask some people." White said he would travel to Bolingbrook and contact Day from the Speedway gas station. When Day received White's page, he ignored it and did not return White's call. Nobles then spoke with Day and conveyed White's distress at Day's inability to "come through for him."

On July 12, 1994, at 6:15 p.m. Officer White paged Day several times and Day finally responded to the page. White requested an eight ball and Day agreed to meet with White at the Speedway gas station located at Boughton and Schmidt roads in Bolingbrook. At approximately 6:40 p.m. Day arrived with several other people and requested that White follow him. Day stopped at a cul-de-sac on Norman Road in Bolingbrook and delivered the cocaine to White. This delivery took place within 1000 feet of Winston Woods, a public park. After the drugs were delivered Day requested $150 for the cocaine admitting he had received too much money on June ...


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