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September 26, 1997


Appeal from the Circuit Court of Cook County. No. 93-CR-19851. Honorable Joseph J. Urso, Judge Presiding.

Released for Publication November 10, 1997.

The Honorable Justice Theis delivered the opinion of the court. Greiman, P.j., concurs. Zwick, J., dissents.

The opinion of the court was delivered by: Theis

The Honorable Justice THEIS delivered the opinion of the court:

A jury found defendant James Placek guilty of delivery of a controlled substance. This was the second time defendant was tried on that charge. Initially, defendant was tried and convicted of delivery of a controlled substance, possession of a controlled substance with intent to deliver, and theft. However, the trial court granted defendant's motion for a new trial because defendant demonstrated that the Illinois Supreme Court found the theft charges upon which he was tried unconstitutional in People v. Zaremba, 158 Ill. 2d 36, 630 N.E.2d 797, 196 Ill. Dec. 632 (1994).

Prior to his second trial, defendant argued a motion in limine to exclude certain evidence. The court ruled that the State could introduce evidence that marijuana and stolen auto parts were recovered on defendant's Will County property, without addressing the admissibility of a recovered stolen gun.

Defendant then filed a motion to dismiss the indictment. Defendant argued that because the State knew or should have known that the theft statute was unconstitutional, the subsequent prosecution violated constitutional guarantees against double jeopardy. The court denied the motion.

In response to the State's charges, defendant raised the defense of entrapment at trial. Defendant claimed that he did not have the propensity to commit the crimes with which he was charged. The evidence established that defendant was the focus of an undercover police investigation from the summer of 1991 until the fall of 1993. This investigation targeted auto theft crimes in south suburban Chicago. In March of 1993, defendant was introduced to undercover police officer Kim Castro. Over the next few months, Officer Castro sold defendant what defendant believed to be stolen automobile parts. At trial, Officer Castro testified that, during his interactions with defendant, their conversations often turned to drugs. Defendant stated that he used marijuana. Defendant informed Castro that he had connections for both marijuana and cocaine. After defendant informed Castro that his drug connection had been arrested, Officer Castro indicated that he could introduce defendant to a supplier. On at least three occasions, defendant did not accept Officer Castro's invitation to engage in drug transactions. On one occasion, however, defendant agreed to assist Officer Castro's "boss" in obtaining drugs.

Officer Castro approached defendant and informed him that Castro's boss was in need of a cocaine supplier. On July 14, 1993, defendant informed Castro that he could obtain four ounces of cocaine at $1,000 per ounce. Defendant claimed that he was unable to make the connection immediately, and arranged for a meeting on the morning of July 22, 1993. On July 22, 1993, defendant and Castro met at a McDonald's restaurant. Castro was with undercover police officer Cornier, whom defendant believed to be an associate of Castro's boss. Defendant directed Castro to meet him at defendant's storage locker in the Space Place storage facility. Upon arrival, defendant let Castro and Cornier into the facility and the group proceeded to defendant's locker. Defendant retrieved four large plastic bags, and then began to weigh the substance on a triple-beam scale. While defendant was weighing the substance, other officers arrived and arrested defendant.

Officer Castro testified on direct examination that subsequent to defendant's arrest, defendant signed a consent to search defendant's property in Will County, Illinois. As a result of the search, officers recovered a stolen gun, stolen automobile parts, and marijuana. The defendant objected to the State's reference to the stolen gun and the stolen automobile parts and the court sustained the objection. However, on cross-examination defense counsel questioned Officer Castro about defendant's possession of the gun. When Officer Castro testified on redirect that the gun was stolen, the defendant objected and the court sustained the objection.

Defendant testified on his own behalf. In his direct testimony, defendant acknowledged that the gun recovered on his Will County property was reported stolen. Defendant testified that he bought and sold auto parts under the name of Sans Dealer Service. Defendant claimed that he only agreed to obtain cocaine for Castro because defendant wanted Castro to continue supplying him with auto parts.

At the close of evidence, the trial court instructed the jury that:

"Evidence has been received that the defendant has been involved in conduct other than those [sic] charged in the indictment.

This evidence has been received on the issues of the defendant's design and Predisposition to commit a crime and may be considered by you only for that limited purpose.

It is for you to determine whether the defendant was involved in that conduct and, if so, what weight should be given to this evidence on the issues of ...

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