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
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
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
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
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
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
[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 ...