*1 ILLINOIS, Plaintiff-Appellee, THE PEOPLE OF THE STATEOF NORKS, Defendant-Appellant. LEON ROBERT District Second No. 2—84—1137 Opinion 23, 1985. filed October *2 NASH, P.J., dissenting. Hirschhorn, De- Appellate of State Joseph
G. Weller and Robert both Office, Elgin, appellant. fender’s of for Morrow, Attorney, (Phyllis Cyn-
Robert State’s Perko Geneva J. Schneider, Commission, thia N. Attorneys Appellate both of State’s Service counsel), People. JUSTICE UNVERZAGT delivered the of the court: opinion defendant, Norks, Leon Robert was convicted after a bench trial in the circuit court of Kane County of the offense of unlawful de 56 1/2, of 0.2 of cocaine livery grams (Ill. Rev. Stat. ch. par. 1401(c)), and trial court sentenced him to three years’ imprison ment.
The defendant raises appeal: (1) four issues in this whether the (2) defendant was whether the entrapped; outrageous conduct of the law; amounted to a violation of due process (3) whether orders; defendant was prejudiced by State’s violation of discovery and (4) legal whether representative defendant was hin- dered an actual conflict of interest. against
We resolve all these issues the defendant and affirm the conviction entered below. Detective Robert Wochner of the Batavia testi- police department fied that on as an April working street clothes undercover investigator.
He drove a Am the yellow Trans Pride Gas Station at Route 25 *3 and in Kane Three or Fabyan Parkway County. four minutes after he station, arrived at the gas a station arrived with two occu- wagon who pants parked got and out. Detective one as Mike Wochner knew Mason, who him the introduced other who was the defend- person ant, Leon Norks. The three then got wagon into the station at the suggestion the defendant. The defendant handed Detective Woch- ner a small crystalline powder. brown bottle which contained white asked, stated, Dollars, Wochner “How much?” The defendant “Fifty right?” defendant, then counted out and it Wochner handed $50 who counted it it in his put pants pocket. and
Detective a field test on the found performed Wochner substance in the bottle and it turned A Du sheriff’s office fo- pink. Page County grams rensic chemist testified the material found in the bottle was 0.2 cocaine, of “L” a controlled substance. wife, Norks, 10, 1984,
The April Jo testified that on at Mary p.m., about o’clock Mike Mason came to the Norks’ house at 430 Street, North Aurora. Both Norks and Mason were in the River kitchen when Mason took a bottle of cocaine out of his pocket it on the kitchen table. She related that Mason asked Leon if placed he Leon knew where could sell the cocaine and Mason said could they not sell it he because owed some some guys money, so he found Leon so that he would itdo for him. Mason also asked Norks if they wanted to use some of the cocaine they but declined. Mrs. Norks did not see her husband handle the cocaine bottle. Mason and Leon Norks left the Norks’ home a half hour after Mason had arrived. Wochner,
Detective Robert defendant, at the request called as a court’s witness. He 10, 1984, testified that on he was April called on the at phone at 4:30 Mike police department Mason. Mason indicated that he had an individual who wanted to sell one-half gram of cocaine for arranged Wochner with Mason for the trans- $50. action to take place at Pride Gas Station in Batavia at 6 o’clock p.m. Mason informed Wochner that the person selling the cocaine would be Leon Norks. Wochner knew at this time that Mason was act- ing as a confidential informant for the Batavia, police department but he was unaware of any deal that have been struck may with Ma- son but knew he had pending charges.
The parties then entered into a as to the stipulation testimony Officer Bainer of the Batavia police department he were called aas witness, which was:
“Officer Bainer would that he testify was involved in the arrest of Michael Mason on March 1984, for possession of cannabis and theft. That after his shortly arrest on charges, these he had a conversation with Mason, wherein, Mr. he indicated to Mr. Mason that if Mr. Mason would participate police in setting up three deliveries of a controlled substance would be his recommendation to the State’s Office Attorney’s of Kane County they would recommend sentence imposed be that does not require imprisonment or time. jail With that un- derstanding, Mr. agreed to cooperate with the attempting to set up three deliveries of controlled substances. That conversation took place sometime in late March 1984.” defendant, Norks, Leon testified in his own behalf. He stated that Michael Mason, whom he had known for two or three years, came to his house on April at 5 p.m. Mason talked about half hour. Mason told Norks he had some cocaine that he wanted to sell. Mason showed him a vial of cocaine. Mason asked Norks if he knew anywhere said, “Man, he could sell it. Norks I can’t. *4 I got no connections like that.” Mason then proposed that Norks sell person cocaine named Bob for they split $50 proceeds. At first refused, Norks but Mason kept pushing issue. Finally, agreed Norks to do it. left They the Norks’ apartment, the transaction went off as Detective Wochner stated it.
1082
The defendant contends his conviction must be reversed because the State failed to prove beyond a reasonable doubt that entrapment did not occur. Specifically, asserts the trial judge confused his will ingness to commit the crime with his predisposition to commit it. He argues a showing that he willing to commit the crime is not enough to overcome the defense of entrapment, citing in Peo support ple v. (1980), 1062, Pates 80 Ill. App. 3d Ill. (1981), 84 2d 82. aff’d The defendant further that his defense must entrapment pre vail unless it is shown that it was he who originated the criminal pur is, That pose. the defendant asserts that the State must that he prove originated the criminal as purpose well as that he prove was willing to commit the crime.
It is true as defendant argues that the mere showing that he “willingly” committed the crime charged does not defeat his defense However, of entrapment. a demonstration that he willing to com mit it in furtherance of a criminal purpose which he originated is enough overcome the {People defense. (1980), App. v. Pates 80 Ill. 1062, 1064, 3d (1981), Pates, 84 Ill. In 82.) 2d the court consid aff’d ered the propriety stated, essence, an instruction that no entrapment of the defendant could be said to have if occurred defendant was offered simply opportunity for commit facility ting crime which he was willing commit. that instruc rejecting tion as an inept law, reflection of the the court pointed out that case, such were the the defense of entrapment would un virtually be available in cases, narcotics delivery since the defendant’s intent to deliver the substance in question could not be shown without a simul taneous showing some degree willfulness. “The is not question whether the defendant commit crime, intended to but whether the intent originated (People mind.” (1980), Pates 3d 1062, 1066, (1981), 84 82.) Ill. 2d critical inquiry is “[T]he aff’d whether the ‘criminal purpose’ of selling originated [the substance] with the (1979), 396, v. Cross [defendant] [citation].” 404, cert. denied U.S. 63 L. Ed. 2d 100 S. Ct. determining whether the originated the criminal purpose, and the predisposition governmental involve ment should be considered. People v. Dempsey (1980), 699, 701; People v. Cross 111.2d cert. denied 762,100 U.S. 63 L. Ed. S. Ct. 1316.
It is axiomatic, however, that it is not the trial court’s reason ing which is the review, but, of this subject rather, court’s its judg ment. The issue of whether a defendant has been en unlawfully trapped is a factual for the trier question of fact v. Gresham {People
1083 of whether Ill. 3d and the determination (1981), App. 581), 96 rests the facts upon commit the offense defendant was predisposed case, 1041.) Ill 3d this (1980), App. of v. Ball 91 (People each case. fact, entrapment trier and once the trial was the of judge a beyond the State to raised, prove incumbent upon became v. Dollen (People not occur. entrapment reasonable did doubt its 280, A not substitute (1972), 284.) reviewing may involving of the trier of fact on questions for that witnesses, and should or the of weight credibility of the evidence as to is so improbable not reverse a conviction unless the evidence 92 Ill. Myers (1980), App. doubt of v. guilt. People raise a reasonable 699, 235-36; 82 Ill. 3d 703. 229, People Dempsey (1980), App. 3d v. court’s introduced to justify Sufficient evidence was entrapped. that the defendant was not finding the evi if established by is an affirmative defense Entrapment 330; 74 Ill. 3d Ill. Rev. Stat. (1979), App. dence. v. Fisher (People of 1961 1983, 38, Section 7—12 of the Criminal Code 14.) ch. par. 7— defines the defense: A is not of an offense Entrapment. person guilty
“Sec. 7—12. em if is incited or induced a officer or public his conduct either, agent obtaining or for the of evidence ployee, purpose However, in this Section is person. for the such prosecution either, or employee, agent officer or applicable public or person opportunity facility affords to such merely of a purpose an offense in furtherance criminal committing 1983, 38, Ill. Stat. ch. originated.” which such has Rev. person par. 7—12. the evidence entrapment,
To the affirmative defense of establish part government must disclose inducement on the of the improper of the part and a lack of to commit crime on the predisposition rev’d, 628, v. Ill. 3d on other (1978), App. defendant. Cross 63 929, 396, denied, Ill. 63 grounds (1979), 77 2d Cert. 445 U.S. must, for the government pur L. 100 S. Ct. Ed. 2d “[T]he evidence, the crime and induce the defend obtaining originate pose it; person ant the defendant must be an ‘innocent’ who to commit he not Peo committed the crime had been induced.” would not have v. 3d ple App. Johnson 229, 235, 3d it was stated: Myers (1980), App. determining predisposed
“In whether a defendant was crime, looked at a of factors: variety commit a courts have drug trafficking prior whether a engaged defendant was otherwise in criminal activ- present engaged incident had [citations]; ity easily in the acquiesced request supply drugs and had ready source to purchase drugs from [citations]; famil- iarity drugs [citations]; or initial reluctance or refusal to enter into a narcotics transaction. [Citations.]” Some additional factors found to be indicative of a defendant’s predisposition appear People v. Husted Ill.
170-01; to-wit: the defendant’s willingness make a profit from the act, illegal his one-two-three times-per-month use marijuana, participation in the ritual, cocaine testing and his “cutting” co caine with baking soda to increase the quantity from one to two ounces thereby justifying higher price. In People v. Dennis (1981), Ill. the defendant’s “ready response” to the al leged inducement and the defendant’s initiation of the final transac *6 tion were viewed as showing a propensity commit the offense. The defendant there agreed to supply cocaine after intermittent con tacts informant over course of only three days’ time seek ing to know the defendant cocaine, knew a source for because the $4,000 informant had a $6,000 friend who had to buy cocaine. Defendant there stated that he made the delivery because he was promised $1,000.
A review of the evidence presented in the case at bar establishes this defendant was predisposed to commit the offense. As the State out, points the evidence shows the defendant was not induced to com- crime, mit the but was predisposed commit it.
Although defendant he was induced to sell the cocaine be- cause the informant, Mason, kept “going on and on” and “pushing issue,” the record shows he testified as follows regarding his ini- tial reaction to Mason’s inquiry:
“A Look, told me: got I’ve this co- [The defendant]: [Mason] caine, and I’d like to sell it. And do know you anywhere I could sell it. And I Man, told him: I I got can’t. no connections like that.”
Mason then asked to use the phone. Afterward, he proposed the defendant sell the cocaine person to a to whom Mason was in debted. This plan was to avoid Mason’s having just creditor deduct the value cocaine from the Mason owed him. This same $100 ruse was used informant v. Marshall (1981), a case in defendant was found to have predisposition. in that case had to sell finally agreed informer, cocaine as a “favor” to the a person whom he had known since childhood and whom trusted. The there consid ered that one perhaps such sale could have resulted from the in- former’s coaxing, but the defendant made deliveries on three separate occasions several This days apart. indicated to the court the defend- ant’s desire to become involved in the trade and a intent to deliberate case, do so. however, Unlike this it does not the defendant in appear Marshall any use, had history knowledge drug or that he re- ceived any from the money informer in return for the “favor.”
The deal arranged here between Mason and the defendant was that they split would received for the cocaine from the buyer. $50 Defendant testified Mason him kept “pushing” on for 15 or 20 min- “ on, utes: Leon, ‘Come do this. I’ve known you long time.’ I *** thought, what the hell. I’ll do it.”
Defendant testified he was willing do because he going to make some He money. testified he did not kick the “inducer” out of the apartment when he made the suggestion concerning the co- caine; rather, he negotiated him for about 15 minutes. Defendant testified: “When brought me, first it to I ‘Look, said: why [Mason] ” hell should I do something for nothing?’ He testified he knew it was illegal cocaine, to sell the but since friend, Mason was a he decided he go would ahead and “do a favor.” He testified that no threats were made, and he admitted that all Mason did was him give an opportu- to make nity some money. assertion,
Contrary the evidence does not show he did not want to sell the cocaine until Mason talked him “finally Rather, into it.” he stated he “couldn’t” sell it because he did not have “any connections like that.” When such a connection was sup- plied profit added, and a incentive the defendant decided he could do this “favor.” The defendant testified he had marijuana used prior marriage, stated he “assumed” that the drug contained *7 small vial produced the by because, informant was cocaine according to him: “I’ve been I around. know.”
The defendant named cocaine; two of his friends who used he had seen them “dealing up around High.” West He had seen them pos- or sessing using drugs cocaine, other than such as “reefer [marijuana] or heroine He testified he did not in the buy marijuana past, [sic].” but he had brothers who gave used and who him some without charge. sources, As to their the defendant stated: “there is fifty [sic] million in Aurora can you reefers from.” He testified to buy his of the knowledge cocaine, various means of ingesting and to the vari- ous substances used to “cut” cocaine. The evidence also State’s showed the defendant offered to set a second sale for in up the buyer case he “liked” this delivery of cocaine. sum, the evidence showed the defendant was familiar with the the milieu, that he was to make When
drug predisposed delivery. the him the to commit the offense opportunity informant offered the profit, and a of a defend- supplying drug, buyer, promise the trial court’s is Consequently, jus- ant readily responded. tified and no reversal is warranted. evidence that, notwithstanding predisposi next contends his
The defendant tion, conduct here his should be reversed because conviction of due of law. process so as to amount to a violation outrageous was People v. Johnson 123 Ill. court’s decision in points He this “in of this defense was rec validity 3d as a case which App. ognized.” this contends that the defendant has waived issue
The State in The defendant urges for to include it motion. failing post-trial doctrine, however, error plain that the issue be considered under in the certainly implicit entrapment since the issue “was since though, No such is implication possible, which was asserted.” in recognized conduct” defense was “outrageous governmental that of Johnson separate entrapment. as a defense from Di ex rel. 363, 370; Johnson see also fur v. Boston 964-67.) Defendant’s fanis should not be waived due to ineffective argument ther that the issue first, merit, that issue of counsel at trial is without because assistance second, the first time on appeal, presented in this context sup in argument authority failed to offer any because defendant of it. the issue is waived. port Accordingly,
Moreover, considered on its merits as even the issue were defense, of arguendo ad the circumstances validity suming is “so not conduct which present picture government this case do matter of the defendant as a to bar overreaching prosecution as States v. conclusion was reached United due of law.” That process of the first and one of the few Twigg (3d Cir. 1978), 588 F.2d one outrageous on the in which a conviction was reversed based cases governmental conduct defense. the manufac- Twigg, was convicted of the nominal defendant substance, com- methamphetamine hydrochloride,
ture a controlled codefendant, Neville, was convicted as His monly “speed.” known initial offense, related offenses. Neville was the four other plus the re- informant, Kubica, contact made at contact of ap- and Kubica had It that Neville government. appears quest earlier; laboratory together years several operated speed parently Neville, he owed into the because Twigg operation by was then drawn minimal; offense involvement Twigg’s a debt to Neville. *8 Neville assumed primary responsibility raising capital and ar- rangement for distribution of informant, Kubica, product. un- dertook the acquisition materials, of the necessary equipment, raw and the production site, and completely charge was of the entire laboratory. Any production assistance provided Neville and by Twigg was minor and at the specific direction of Kubica.
The outrageous government conduct the Twigg court found it could not countenance by reason of fundamental fairness was that of the DEA agents who had requested the initial contact of Neville be informant, made by made, Kubica. After that contact court’s opinion details what the extent of the DEA’s involvement was:
“The Government proved to be of considerable assistance to Kubica in carrying out his part operation. DEA agents him supplied with two and one-half gallons of phenyl-2-pro- panone chemical essential to the manufacture of speed —a the most difficult of the ingredients to obtain. The cost $475.00, Government was although the chemical could retail for twice as much. The DEA provided Kubica with about 20 per- cent of the glassware needed rented farmhouse in New Jersey which to set up addition, laboratory. the DEA officials made arrangements with chemical houses to fa- supply cilitate the purchase of the balance of the materials Kubica under the business name of ‘Chem Kleen.’ Kubica personally all bought of the supplies (with the exception one separatory funnel) with approximately supplied Neville.” $1500.00 United (3d States v. Twigg 1978), Cir. 588 F.2d 375-76. The Twigg court concluded that fundamental fairness would not permit them to countenance such officials, actions lawby enforcement and prosecution for a crime so fomented by them will be barred. F.2d here, marked contrast there was no such government assist- Mason;
ance provided to the police here did not pinpoint defend- contact, ant as a potential and they supplied in the nothing way as- sistance to Mason save for providing the buyer for cocaine. there is no between Clearly parallel government conduct in this case and that which was eschewed in Twigg. argument
Defendant’s is that it very lack direc- tion of Mason which warrants He reversal. contends it was the unsu- pervised police use of an informant of unsavory through character of- fers of leniency which was so as to outrageous amount to a violation process due of law. The court in (2d United States v. Cir. Myers 1982), 692 F.2d acknowledged: like
“The and deceitful informants use of dishonest [self-de- Weinberg scribed con man creates risks to which Melvin] called, Pro- attention of must be but the Due juries forcefully *9 cess Clause does not their detail their su- employment, forbid 823, their pervision, nor F.2d specify compensation.” Myers The fund there no constitutional rule special also that a the of crim- required person subject prior suspicion be governmen- inal that confronted with a activity person may before be 823, 835.) Con- (692 created to commit a crime. F.2d tally opportunity here specifically the fact that the informant was not sequently, defendant, the the of the trial directed to contact but was—in words cannon,” set loose in the much like loose “merely community, court — does not amount of the defend- right to an affront to constitutional ant. The defense such individuals is provided “non-suspicious” best 823, de- (692 835.) the traditional defense of F.2d That entrapment. because, here, the though simply fense is not established as defendant caught the ruse. by to outrageous The conduct of the in this case was not so as police as discussed “outrageous government fall within the conduct” defense v. Twigg United States (3d 1978), recognized Cir. 588 F.2d of, People Johnson in, (1984), rejected but likewise under the facts 3d 363. to find The defendant next it was error for the court Ma (1) provide concerning harmless the State’s failure to information police depart son’s use as a confidential informant the Aurora by ment, (2) summary its failure to the defense with a provide an him an assistant by Mason’s oral statements made in interview of before trial. Defendant asserts court’s Attorney day State’s finding by “misunderstanding of harmlessness was affected its the defense of the term and that had legal meaning predisposition,” Mason, counsel full “he would have provided discovery regarding been a defense witness.” called as no violation occurred and no State counters that discovery agree.
new is warranted. We oral Attorney’s The content of the assistant State’s interview not to The en subject with Mason the trial was disclosure. day before un by titlement to a written of same claimed the defendant summary v. Szabo does clearly authority der does not persons prosecution not extend to oral statements in which memoranda summariz to call as its witnesses. Instances plan ing oral statements which must be disclosed to defendant and are lim- 412(a)(i), codified in Court Rule prosecution Supreme are ited only to those whom the State intends to call as wit persons (87 Ill. 412(a)(i).) nesses. 2d R. Mason was not listed as a potential witness, State stated he did not intend prosecutor specifically and, fact, call Mason as a witness Mason was not called at trial. Thus, no be said to have occurred. discovery may violation
Likewise, oc warranting no a new trial discovery violation curred failure of the the defend regard provide State ant with “all of Michael Mason as a confi information as use informant As dential in other cases the case involved here.” besides out, points State counsel to trial prior was aware Mason had a department, connection with Aurora chose yet Mason, not pursue clearly either with who was available to be trial, interviewed with the prior defendant Aurora police department. error
Claimed from nondisclosure of information which is already possessed by the has nonprejudicial been found and insuffi cient to warrant a new trial. v. Bouska 118 Ill. App. 600-01; Further, People v. as Mitchell *10 argues, the State the defendant’s so non request ambiguous was specific as to negative possible of fault on the the any finding part of prosecutor for failing to it. supply the
Ostensibly, defendant’s motion for disclosure of this material on was based Supreme 412(c), Court Rule the Illinois codification of 83, the principle enunciated in 10 Brady Maryland (1963),373 U.S. 215, held, L. 2d 83 (87 Ed. S. Ct. 1194. Ill. It 412(c).) 2d R. has been though, determining that alleged whether the error the violated defendant’s constitutional right disclosure, is to con necessary sider the first nature of the defendant’s When the is request. request general, here, as it was is error there constitutional if the omit only ted creates a evidence reasonable doubt of the guilt defendant’s 97, did not otherwise (United (1976), exist. States v. 427 Agurs U.S. 108, 352, L. 342, 2392, 2399; Ed. 2d 96 People S. Ct. v. Bouska (1983), 599.) 3d The mere that an item of possibility might undisclosed information have have might aided the or the outcome of the materiality affected the does not establish the in the v. Bouska evidence constitutional sense.
Ill. The defendant here failed to the materiality has demonstrate the sought any, information or if he was caused prejudice, what nondisclosure State’s of such information.
Even for has request defendant’s this information viewed having brought Supreme 412(h), grant been under Court Rule a upon of the court denial is within the discretion request of such Ill. 2d R. (87 defense. showing materiality preparation it felt the State hearing, At the the court noted 412(h).) post-trial respect answering should more than it did with provided have However, it also motion for disclosure. supplemental of the Aurora police depart found the defender’s office knew public informant. ment’s activities with Mason in the role of a confidential defeated the de testimony Because the court found the Norks’ own to the in any testimony fense of it determined other as entrapment, would have had no volvement of Mason as a confidential informant bearing whatever on the issue.
It been held that factors which must be considered deter has rule mining comply discovery whether the State’s failure with evidence, the retrial include the of the undisclosed strength warrants that notice could have the defense discredit prior helped likelihood evidence, failing and the of the State in to disclose. willfulness comply v. Weaver Sanctions failure (87 court Ill. 2d R. with are within discretion of the discovery when a reviewing court will find an abuse of discretion 415(g)); defendant is violation and the trial prejudiced by discovery that v. Weaver prejudice. People fails eliminate 545, 559. confidential sought concerning
It the information Mason’s appears in- police department informant with the Aurora relationship that it Mason who was establishing tended to aid the defense in the defendant the cocaine. “prime supplied mover” and who drugs, yet The court found it was Mason who specifically supplied that the Norks’ established their testimony predisposition. determined error is seen in the court’s that the defend- Accordingly, no part ant was caused no failure of disclosure on prejudice by any the State. next two circumstances which
came to after his trial demonstrate that the light legal representation him of interest which de afforded was hindered an actual conflict *11 on hearing nied him a fair to the Specially, points post-trial trial. discussed in discovery his claim that he was denied the information investiga that an foregoing hearing issue at which it was revealed office had ob tor the Kane defender’s employed by County public Mason’s use during tained information an interview with Mason about the Aurora Defendant asserts by police department. as an informant counsel, or at least appointed this information was not shared with The second in- the information was not shared with him. completely
1091 during post-trial occurred he notes also stance of conflict which Mason to question counsel wanted time, At that defendant’s hearing. de- police the Aurora with concerning on the his involvement stand on Mason’s appearing Kane defender County public but the partment, since he the subpoena, motion to quash in the State’s joined behalf too would be self-incrimination right against felt the to Mason’s risk he to great testify. were was that Mason to assume”
Defendant asserts it is “reasonable inter- conflict of witness at trial because not called as a defense each were he and Mason of the fact that both est created virtue by of- defender’s Kane County public from the by attorneys represented much infor- how Further, asserts: “One must wonder fice. counsel.” to the defendant’s mation Mason was denied regarding to the effective assistance right that a defendant’s It is clear vir by free of restraint representation him to faithful counsel entitles of his attor on the loyalties part tue of inconsistent duties or divided 680, 62 86 L. Ed. States U.S. ney. (Glasser v. United here, Ill. The record 457; People S. Ct. v. Stoval this however, affecting right. no conflict of interest at trial shows out, no idea un- it is clear defense counsel had points As State trial, hearing, post-trial til sometime after the before the shortly office. It is also defender’s being represented by public was a client of actually not clear from the record whether Mason was clear, trial. It is defender’s at the time of the defendant’s public office which however, charge on a being burglary that he was represented The information case. unrelated defendant’s completely the defendant’s shared” with completely was “not allegedly con- of Mason gathered information an interview counsel was October office on public investigator ducted defender’s by trial ended. interview more than two weeks after burglary unrelated regard conducted with to Mason’s being some information about charge, incidentally generated but further informant the Aurora the actual extent of Mason’s use as an trial, his at time of the defendant’s department. It is clear that had that Mason investigator counsel been this same had advised that he in fact did have stated in a interview September pretrial police depart- the Aurora relationship confidential informant ment. ineffective on a claim of prevail
It held that in order to has been must a defendant joint representation, assistance of counsel due to trial, mere hypo- manifested at show an actual conflict of interest v. Robinson not suffice. thetical or conflicts will speculative *12 (1979), 79 Ill. 2d The here not suffic provide record does ient facts from it which be concluded that defendant’s counsel may was restrained in at any in his of the way representation defendant trial, or that affecting crucial information his was strategy with held. See also v. People Kendrick 3d 426. regard
With
the
the
public defender’s motion
sub
quash
for
poena
appear
issued
Mason to
at the post-trial hearing, we note
the record shows the court
the post-trial hearing
continued
to a later
date so that substitute counsel other than the
defender
public
could be
for
appointed
Mason. We further note that the court
this action
took
even after defense
agreed
counsel
with the
State’s Attorney
assistant
that his understanding
public
of the law
that
was
one
defender could
advise
it
(Mason)
long
the witness
“so
as
is a
public
different
defender
than
that
defendant.”
(Cf. People
Miller
Although argues alarming” defendant “it is that Mason was never recalled the stand in connection the post-trial allega with tions, the record shows that it post-trial hearing was at the continued that the public investigator defender’s that testified defendant’s coun sel was privy the information that Mason in fact used Aurora police department as confidential informant. this Upon rep court, being resentation made to determined State’s insuffi cient response supplemental motion for disclosure defendant, not prejudice already did since it appeared attorney actual, constructive, had if not notice of information supplemental sought. The court that determined further information about the any extent of Mason’s police department involvement the Aurora not have The had already specifi would affected its judgment. defendant, that cally found the cocaine for the and supplied that primary judgment finding guilty basis its was the fact of the defendant’s and of his own wife testimony his predisposition showed to commit the offense. Accordingly, the court denied the motion and post-trial quashed subpoenas. significant
Defendant that at the least a conflict interest the post-trial hearing existed at and the cause should be re stage, hearing manded for on the raised this supplemental questions v. Blakes problem. support, cites Blakes, however, a conflict of interest was found to have arisen defender, appointed the defendant’s public purposes because motion, argue called upon preparing arguing post-trial counsel, another defender public of defendant’s trial incompetence here, no such conflict existed who was from the same office. No remand for further warranted. any hearing circuit court of Kane is affirmed. County
Affirmed. J.,
SCHNAKE, concurs. *13 NASH, dissenting: PRESIDING JUSTICE First, after the determining I dissent on two bases. respectfully trial defendant’s denying court an incorrect standard of law applied the judg- affirmative defense of this court should reverse entrapment, ment remand for a new trial rather than undertake to review the and Second, evidence as the finder of fact. to the conclusion of contrary I consider that the State has not the absence of majority, proved entrapment reasonable doubt. beyond
As noted in the the trial opinion, court considered erroneously that was met if the evidence showed entrapment (See defendant committed the offense. v. Pates “willingly” People 82, (1981), 84 Ill. 2d 417 rendering N.E.2d its verdict after bench the court stated the circumstances of the case raised Mason, suspicions where an individual as the set police agent, such is loose in cannon,” like a that Mason did community supply “loose the drugs to defendant that the Mason. The originated idea with considered, however, court that because defendant understood Ma it, son’s idea and was that constituted a ready accept predisposition and removed the defense. In a entrapment post-trial hearing, willingness also stated defendant’s to enter into the sale was and, the decisive in the case at point the court character sentencing, shot,” ized the transaction as “cheap but that defendant was not in nocent of criminal because he in it. activity willingly participated brief,
In its State the trial court did the correct apply standard, otherwise, alternatively suggests, but this court finds use of an in a improper standard law bench trial would be compara- giving ble to the of an for jury proper erroneous instruction is remedy reversal and new trial. however,
The majority, undertook a de novo evaluation of the evi- which, dence in it determined the presumably, weight given be thereto and the I credibility suggest the witnesses. correct rule where a case has been tried re- theory under an incorrect law is to trial, for a do so here.
verse and remand new would 184, 161; v. People People Francis 73 Ill. 2d 383 N.E.2d v. 332, 335, Thompson (1967), N.E.2d If this court could review the in these circum- properly evidence stances, I did entrapment would find that the State failed to establish not take to commit the of- place predisposed or that defendant was fense. offenses,
It that after for unrelated undisputed his arrest Michael Mason if he to set police agreed was offered leniency up three deliveries of a as a acting po controlled substance. While so (see lice agent People v. Dollen 290 N.E.2d 879), Mason a small brought amount of cocaine to defendant’s home where, after it to urging, agreed considerable defendant to deliver Mason’s customer. thereupon meeting drove defendant to a an police with undercover officer to whom defendant handed the co caine and Defendant his payment. received earned service $25 friend, Mason. It seems clear to me that the induced police agent drug obtaining sell the for the evidence for purpose prosecution; agent it seems clear the did equally commit more than afford defendant merely opportunity purpose. the offense and that defendant did not the criminal originate See Ill. Rev. Stat. ch. 7—12. par. respects the facts here are similar to those many 837, 839,
Martin
appeal
Ill.
464 N.E.2d
*14
denied
101 Ill. 2d
where the court
reversed
convic
tion, finding,
for the
coercion of the
informant
unrelenting
paid
“[B]ut
***, who did not come
the fact
not only
forward
rebut
distribution,
the source of the narcotics
mover in their
prime
but
the of
the defendant would
have
to commit
predisposed
never
been
***
doubt that
question.
say beyond
fense
cannot
a reasonable
[W]e
charged originated
idea for the crime
defendant.
[Cita
See also