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People v. Trice

Court of Appeals of Illinois, Fourth District

November 1, 2017

JOHN EDWARD TRICE, Defendant-Appellant.

         Appeal from Circuit Court of McLean County No. 13CF1462 Honorable Scott D. Drazewski, Judge Presiding.

          JUSTICE STEIGMANN delivered the judgment of the court, with opinion. Justices Appleton and Knecht concurred in the judgment and opinion.



         ¶ 1 In January 2015, a jury convicted defendant, John Edward Trice, of delivery of a controlled substance at a truck stop (720 ILCS 570/407(a)(2)(A) (West 2012)) and delivery of a controlled substance (720 ILCS 570/401(c)(2) (West 2012)). The trial court later sentenced him to seven years in prison.

         ¶ 2 Defendant appeals, arguing that his convictions ought to be reversed and his case remanded for a new trial because (1) the trial court erred by refusing to instruct the jury on entrapment, (2) trial counsel was ineffective for failing to request a jury instruction about paid informants, and (3) the State committed prosecutorial misconduct. We disagree with these contentions and affirm.

         ¶ 3 I. BACKGROUND

         ¶ 4 In October 2013, following a controlled drug transaction, defendant was charged with two Class 1 felonies: (1) delivery of a controlled substance at a truck stop (cocaine) (720 ILCS 570/407(a)(2)(A) (West 2012)) and (2) delivery of a controlled substance (cocaine) (720 ILCS 570/401(c)(2) (West 2012)). (We note there was a scrivener's error in the charging instrument, which indicated defendant was charged under section (b)(2) (720 ILCS 570/407(b)(2) (West 2012)) as opposed to section (a)(2)(A) (720 ILCS 570/407(a)(2)(A) (West 2012)).) The case proceeded to a jury trial in January 2015, and the following testimony was presented.

         ¶ 5 Beverly Throgmorton testified that she became a paid informant for the Bloomington police department in March 2013, following her arrest for possession of a crack pipe. She agreed to work for the Bloomington police department as an informant in exchange for the charges against her being dropped and, later, in exchange for money. She described her "steady employment" as working for the Bloomington police department. It paid her "a couple of thousand dollars." In her role as an informant for the Bloomington police, Throgmorton had bought drugs from 10 or more individuals.

         ¶ 6 Throgmorton had previously been addicted to crack cocaine for over 20 years, but at the time of defendant's trial, she had been sober for over 17 months. She had convictions for forgery, possession of a controlled substance, and retail theft, but she explained that her criminal behavior had all stemmed from her addiction to cocaine. She had begun a culinary career by taking classes through a local church, which led to her culinary arts degree and her currently managing a restaurant and catering company.

         ¶ 7 Throgmorton testified that she informed Bloomington police detective Stephen Brown in October 2013 that she could purchase crack cocaine from defendant. Throgmorton explained that she first met defendant because he lived in an apartment across from her brother. She told him she knew some truckers who bought crack, and he gave her his phone number. When she later told defendant that one of her truck drivers was coming to town, defendant told her that he could get whatever she wanted. Several days later, she called defendant and spoke with him on a speakerphone while Brown was in the room. She told defendant that she knew of a truck driver who wanted to purchase $400 worth of cocaine. Defendant said "okay, " and they arranged to meet at the Pilot gas station in Bloomington.

         ¶ 8 Throgmorton and Brown went to the gas station, but defendant was not there. She called defendant multiple times but learned he had left his phone somewhere. Defendant later called her and said he was on his way and she should not leave. When he got there, she got into the back passenger seat of his vehicle. Another black male, whom she did not know, was in the car. Defendant handed her a bag of what she believed was crack cocaine, and she handed him $400 of marked bills she had received from Brown. She then returned to Brown's car and handed Brown the bag.

         ¶ 9 Brown field-tested the contents of the bag and determined it contained crack cocaine. (At trial, the parties stipulated that the contents of the bag tested positive for 1.3 grams of cocaine.)

         ¶ 10 Brown then contacted police officer Jared Johnson, who had followed defendant's car from the scene. Johnson pulled defendant's vehicle over and eventually arrested defendant and the vehicle's other occupant, Jovon Wilder. When the police searched Wilder, they found a small plastic bag of crack cocaine.

         ¶ 11 Detective Jared Bierbaum performed surveillance of the transaction at Pilot and met Johnson at the traffic stop. Bierbaum searched defendant's person and recovered a cellular phone and $200 in bills marked for the controlled transaction. Bierbaum later confirmed that the number to the cellular phone recovered from defendant matched the number that Throgmorton used to communicate with defendant to arrange the transaction.

         ¶ 12 At the Bloomington police department, Brown strip-searched defendant and recovered $200 from defendant's underwear. Brown later determined that cash was comprised of the remaining marked bills from the controlled transaction.

         ¶ 13 During Brown's interview of defendant, a recording that was ultimately played for the jury, defendant stated Throgmorton contacted him and asked if he could get her $400 worth of cocaine. He indicated that he "knew a guy." Defendant explained to Brown that he really did not know Wilder, but defendant's sister was dating Wilder. However, defendant called Wilder after Throgmorton asked him for the cocaine. He told Wilder that Throgmorton needed $200 worth of crack cocaine rather than $400 worth. A transaction was arranged, and on the date of the transaction, Wilder called defendant for a ride to Pilot to meet Throgmorton. When Wilder and defendant arrived at the gas station, Throgmorton got into his vehicle and placed $400 on the center console. Defendant stated he immediately pocketed $200 of the cash because he intended to use the money for gas. Wilder handed Throgmorton the cocaine, and Throgmorton exited the vehicle. When defendant noticed the police attempting to pull him over after the transaction, defendant grabbed the remaining $200.

         ¶ 14 Defendant's trial testimony conflicted with the above statement he gave to Brown following his arrest. Defendant testified that he was on social security disability and worked transporting children to his sister's day care center. He knew Throgmorton from having given her a ride home when it was raining. He gave her his phone number at her request. He had been to her apartment twice, and the second time they watched a movie.

         ¶ 15 Throgmorton called him and asked if he knew anybody, which he took to mean whether he knew someone from whom she could purchase drugs. Defendant testified he stated, "I know one guy, but I don't know."

         ¶ 16 On the day of the controlled transaction, defendant testified he left his cellular phone at his sister's day care, and his sister called him on his landline because Throgmorton had called his cellular phone several times. Defendant retrieved his phone and saw a text from Throgmorton that said, "I'm here, " which defendant understood to mean that she was at Pilot. According to defendant's testimony, Throgmorton had called a few days before and told him she would be at Pilot, and if he got a chance to go there, that was where she would be. Defendant responded to her text, stating, "I'm on my way." Defendant then received a call from Wilder, who said that he was walking to Pilot and asked defendant to pick him up because "that one girl called." Defendant responded, "What you want me to do about it, " and Wilder stated, "I just want you to know, Man, she called me." Defendant agreed to give him a ride to Pilot but said that was all he would do.

         ¶ 17 Defendant picked up Wilder, and when they arrived at Pilot, Throgmorton entered the vehicle. Defendant did not say anything while she was in the vehicle, and he looked out the window the entire time. He testified he did not know what Wilder did, but "he had his hands back there." Defendant testified he "didn't even look that way, " and he did not "see anything else, no drugs or nothing." Throgmorton then left the vehicle, and defendant told Wilder he wanted his gas money. After driving for a few minutes, defendant noticed the police attempting to pull him over. Defendant stated he pulled over and looked around the car as the officers approached. He noticed the cash and grabbed it.

         ¶ 18 Defendant testified he considered that he did Throgmorton a "favor" by giving Wilder a ride to Pilot. Defense counsel asked defendant, "And you were unwilling to answer her call and do any further work as far as finding drugs for her?" Defendant responded affirmatively. Defense counsel asked defendant if he understood Wilder's phone call to mean that Wilder was meeting Throgmorton to sell drugs to her, and defendant responded affirmatively. Defense counsel then asked, "And knowing that, you provided the ride anyway; is that right?" Defendant responded, "I just gave him a ride. I didn't know-it was his business whatever he was doing." Defense counsel later asked, "That was a ride which you understood was likely to lead to criminal activity; is that right?" Defendant responded, "I felt like this: I gave him a ride, but he's a grown man. Whatever he do [sic] is his business, as long as I'm not involved. I didn't put my hands on anything. I didn't touch anything at all." Defendant then denied receiving cash directly from Throgmorton or seeing or handling "any bag."

         ¶ 19 During closing argument, the State argued defendant was guilty either as a principal or by accountability because he either delivered the drugs himself or caused the drugs to be delivered by Wilder. The State argued defendant not only arranged the transaction, but he also intended to "rip off" Throgmorton by delivering only $200 worth of crack cocaine but still charging her $400. The prosecutor indicated that defendant's statement that he intended to keep the remaining $200 as gas money made him "chuckle" because gas was not so expensive that driving Wilder to Pilot would consume $200 worth of gas. The State also attempted to rehabilitate Throgmorton's credibility, stating:

"This was a crack addict. This is a person that we know, or can infer from all that we know about her, is someone that had such a bad crack addiction, that she went from prostituting herself to get her next high, to-as she sat before you yesterday clean and sober for 17 months, working 60 hours a week in order to further her culinary career."

         ¶ 20 During its closing argument, defense counsel argued Throgmorton was not credible because she was biased due to her role as a paid informant and due to her addiction. On rebuttal, the State stated:

"And another thing for you to consider, because obviously you have to weigh-you've heard conflicting stories, so you have to weigh believability. And one of the ways that you get to weigh believability is by your personal observations of the demeanor, and the way the person conducted themselves, and what they said when they testified. [Throgmorton] looked healthy. [Throgmorton] looked clean."
[DEFENSE COUNSEL]: I'm going to object to the opinion.
THE COURT: All right. Counsel should refrain from stating personal opinions or beliefs. Ladies and gentlemen, personal opinions or beliefs of the attorneys are not proper and should not be considered by you ...

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