Appeal from the Circuit Court of Johnson County. No. 98-CF-111 Honorable James R. Williamson, Judge, presiding.
The opinion of the court was delivered by: Presiding Justice Goldenhersh
After a bench trial in the circuit court of Johnson County, Thomas Ming (defendant), was convicted of four counts of unlawful delivery of a controlled substance (720 ILCS 570/401(c)(2) (West 1996)) and was sentenced to concurrent four-year terms in the Department of Corrections on each count. The issue raised on appeal is whether an undercover police officer's actions, which included allowing defendant to have for his personal use a small amount of the cocaine purchased by the undercover officer, were so outrageous as to constitute a violation of defendant's due process rights. We affirm.
The charges against defendant stemmed from his assistance in the purchase of cocaine for undercover agent Richard Malone. Malone was a Pulaski County deputy sheriff assigned as a narcotics investigator to the Southern Illinois Drug Task Force. Malone's confidential source was Tony Belden. Malone and Belden approached defendant, a person with a long history of drug abuse and a penchant for cocaine, to arrange a drug transaction with Ricky Goodman, a drug dealer who was moving cocaine and cannabis from Chicago. A series of five drug purchases was arranged by defendant in which Malone was present. On the first four occasions, defendant was present. On the fifth occasion, Malone purchased narcotics from Goodman, but defendant was not present. The transactions occurred between June 2, 1998, and July 9, 1998. On each of the deliveries in which defendant was present, defendant called Goodman and arranged for him to bring the cocaine to defendant's residence.
On September 17, 1998, defendant was charged by information with six drug offenses, including one count of calculated criminal drug conspiracy (720 ILCS 570/405(a) (West 1998)) and five counts of unlawful delivery of a controlled substance (720 ILCS 570/ 401 (West 1998)). At the preliminary hearing, Malone testified that defendant was not compensated for setting up the transactions. However, on February 16, 1999, defendant filed a motion to dismiss on the basis that he was given cocaine for his personal consumption, that he used the cocaine in the presence of Malone on more than one occasion, and that "delivery of drugs by the Government to an addict to obtain his cooperation is illegal, outrageous, and violates basic concepts of fairness and due process." Attached to the motion was the affidavit of Malone's confidential source, Tony Belden. The affidavit stated that Belden was present on several occasions in June and July 1998 when Malone purchased cocaine from Goodman. Belden stated: "[A]fter the delivery was completed, Malone would take some of the cocaine out of the package and give it to [defendant] for making the call to Goodman and for using the house. I have observed the delivery from Malone to [defendant] on more than one occasion." On March 4, 1999, a hearing was held on defendant's motion to dismiss.
Defendant's first witness was Officer Malone, who testified that he was present at four drug transactions, which occurred on June 2, June 4, June 12, and June 17, 1998, at defendant's residence, and that Belden was present at the first three transactions. In each instance, Malone purchased powdered cocaine from Ricky Goodman. Defendant introduced Malone to Goodman as a favor to Belden. At the preliminary hearing, Malone denied giving any narcotics to defendant as payment. He stated that during the last transaction on July 9, 1998, he left $50 with Goodman to give to defendant "as compensation for arranging the deal." However, during the hearing on the motion to dismiss, Malone admitted that defendant did receive a small amount of cocaine, but Malone explained that it only occurred during the first transaction on June 2, 1998, and only because defendant insisted. Malone described what happened after his transaction with Goodman was completed: "[Defendant] asked me if I could take care of him, if I could hook him up." The prosecutor then inquired what the above response meant, and Malone explained as follows:
"Meaning give him some of the cocaine out of the bag. I told him no and he persisted[;] he kept telling me that I was messed up because I had, correction, he had introduced me to Mr. Goodman and I needed to take care of him and what not, and at the time, not wanting to[,] I guess you'd say[,] blow the investigation, definitely there was going to be a larger transaction later, I complied with Mr. Ming. I wanted out of that house at that time. And I was under the impression that if I didn't give Mr. Ming something, we would not have another deal."
Malone testified that he did not see defendant consume any drugs and that defendant did not receive any additional drugs during the later transactions.
Malone changed his report nearly three months after Belden's affidavit was filed and nearly seven months after the first transaction, to reflect that defendant removed and ingested approximately one line of cocaine from the bag. At the time the charges were filed, the State was unaware that defendant had ingested cocaine out of the bag purchased by Malone from Goodman. Malone acknowledged that all cocaine amounts delivered to the lab weighed less than the amounts allegedly purchased. Malone explained that dealers routinely try to short-change the purchasers in order to increase profits and that once the drugs are taken out of the packages in which they are sold, the weight is reduced.
During all the transactions, Malone wore a body microphone. Defense counsel played portions of those tapes and suggested that there were sniffing and scratching noises that were the ingestion and cutting of cocaine provided to defendant by Malone. Malone denied defense counsel's allegations.
Tony Belden testified that he was with Malone on three occasions in June 1998 during which Malone purchased cocaine from Goodman. Defendant arranged the meetings between Goodman and Malone. Belden testified that it was his understanding that defendant, "the middle man," would ultimately be cut out of the transactions but that he would be paid for his involvement by getting to consume some of the drugs for his personal use. Belden never saw defendant actually consume any of the drugs because he left the room after the transactions were completed. On cross-examination, Belden explained that he instigated discussions about a "turn on" for defendant with Malone because he knew that defendant would not "keep getting [Malone] hooked up with drugs without getting something." Belden told Malone to give defendant some drugs or cash if defendant asked for either.
Defendant testified that while growing up in California, he began using marijuana in the eighth grade and gradually started doing other drugs, including acid, mushrooms, and cocaine, which he particularly enjoyed but could not often afford. Defendant agreed that he was approached by Malone and Belden to arrange some drug deals with Goodman. According to defendant, he was to receive some cocaine "out of the bag" for introducing Malone to Goodman. Defendant claimed that after each transaction, Malone gave him a portion of the cocaine for his personal consumption and that on one occasion Malone used a razor to cut the cocaine and form it into lines for defendant's consumption. Defendant testified that he asked Malone to "cut" the cocaine for him because he was too shaky to do it himself; however, the tapes fail to reflect that such a conversation occurred. Defendant claimed that scraping sounds on the tape were caused by chopping up lumpy cocaine and that sniffing sounds were caused by defendant "snorting" the cocaine. At one point, defendant asserted that he had been involved with cocaine since he was a freshman in high school. He later stated that he had not been involved with drugs for a long time but that he became involved again when Malone and Belden came by to speak with him. Defendant admitted that he had been convicted of burglary in California.
The State recalled Officer Malone to rebut defendant's testimony. Malone testified that he interviewed defendant on September 17, 1998, after defendant was arrested. At that time, defendant told Malone that he remembered Malone coming over to his house and purchasing cocaine but that he could not remember the specific details. Defendant told Malone his memory was limited due to habitual drug use. Malone insisted that defendant only took some cocaine out of the bag after the first transaction on June 2, 1998, and not after any other transaction. Malone testified that between the second and third transactions, sometime between June 4 and June 12, 1998, he told one of his supervisors that he allowed defendant to take cocaine out of the bag. Malone admitted that he was under investigation by internal affairs based upon information provided to the department by defense counsel.
The trial court denied defendant's motion to dismiss, and a stipulated bench trial ensued. Counts I and II were dismissed, and defendant was found guilty on the remaining four counts of delivery of a controlled substance on the theory that he was accountable for the conduct of Goodman. At the sentencing hearing, the trial court remarked that Officer Malone's conduct was "not a glowing example of what law enforcement should demonstrate ***." The court stated: "I don't think there's any question he exceeded the bounds of zealousness here. Whatever his motives were to ferret out crime, but ...