The denial of defendant’s petition for a certificate of innocence pursuant to section 2-702 of the Code of Civil Procedure was upheld, notwithstanding the fact that his convictions for unlawful possession of a controlled substance and unlawful possession of a controlled substance with intent to deliver were reversed on appeal, since defendant had to show his actual innocence by a preponderance of the evidence in order to prevail on his petition, and the mere reversal of his convictions due to the failure to prove his guilt beyond a reasonable doubt was insufficient, especially when his convictions arose from the steps he voluntarily took to arrange a drug transaction with an undercover police officer
Appeal from the Circuit Court of Kane County, No. 09-CF-75; the Hon. James C. Hallock, Judge, presiding.
James E. Dumas, of Gilbert, Arizona, appellant pro se.
Joseph H. McMahon, State's Attorney, of St. Charles (Lawrence M. Bauer and David A. Bernhard, both of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
Justices Zenoff and Hudson concurred in the judgment and opinion.
¶ 1 Defendant, James E. Dumas, appearing pro se, appeals the trial court's order denying his petition for a certificate of innocence under section 2-702 of the Code of Civil Procedure (735 ILCS 5/2-702 (West 2010)). We affirm.
¶ 2 I. BACKGROUND
¶ 3 On March 11, 2009, defendant was indicted on charges of unlawful possession of a controlled substance (720 ILCS 570/402(a)(2)(D) (West 2008)) and unlawful possession of a controlled substance with the intent to deliver (720 ILCS 570/401(a)(2)(D) (West 2008)). On October 9, 2009, a bench trial commenced.
¶ 4 Detective Mario Elias testified that he was an Elgin police officer and worked undercover in drug enforcement. On September 19, 2008, he met defendant at an IHOP restaurant in Elgin to discuss future narcotics transactions. Defendant told Elias that he was looking for a consistent supplier of cocaine if the price was right. In response, Elias stated that he could supply a kilogram of cocaine for $26, 000. Defendant indicated that he intended to resell the same kilogram for $28, 000. Elias told defendant that he was expecting a shipment to arrive any day and that he would call defendant when it came in.
¶ 5 On September 22, 2008, Elias called defendant, and they made arrangements to meet the next day to discuss the cocaine purchase. On September 23, 2008, Elias met defendant in the parking lot of the same IHOP restaurant. The meeting did not last long. Defendant told Elias that he was waiting on friends to arrive from Detroit who were going to purchase the cocaine from him. Defendant wanted a sample of the cocaine, to see the quality. Elias refused to break down the cocaine for sampling but assured defendant that it was of good quality. Elias offered to stay with defendant and his friends, at the time of the sale, until they determined whether they were satisfied with the quality of the cocaine. Although defendant continued to ask for a sample, he eventually agreed to try to work it out with his friends.
¶ 6 Numerous phone calls then took place to arrange the sale, and defendant continued to request a sample. The sale was arranged to take place on September 24, 2008. The plan was for defendant to show the money and Elias to show the cocaine, and then to do an exchange.
¶ 7 On September 24, 2008, defendant and Elias met in the parking lot of a supermarket. Elias arrived first, exited his car, and opened the hood to make it look like he was doing something. When defendant arrived, he exited his car and approached Elias. Elias asked defendant if he was ready to go. Defendant insisted on seeing the cocaine, and they both entered Elias's vehicle, where they went back and forth over the sampling issue. A transcript of the conversation in the car indicated that defendant did not wish to actually try the cocaine but that he wanted to see it in order to verify the amount. Elias exited the vehicle to retrieve from his trunk a black bag containing the cocaine. He then reentered his car and handed defendant the bag. Defendant opened the bag, took out the kilogram of cocaine, and looked at it. He then put it back in ...