delivered the opinion of the court:
Defendant Michael Walker was indicted with four other men for delivery of more than 100 grams of a powder containing cocaine, a controlled substance. A jury found him guilty of the charged offense, and the court sentenced him to nine years’ imprisonment and fined him $5,600 as the street value of the seized cocaine. Defendant appeals, contending that the circuit court erred in refusing to instruct the jury on the entrapment defense and in denying his motion for disclosure of the identity of a confidential informant. He also contests the amount of his fine. We reverse the judgment and remand for a new trial.
At defendant’s jury trial,
Cooper arrived 10 minutes early with another undercover officer, Clem Ferguson, in the car and others on surveillance. Defendant was already there; he and another man, later introduced by defendant as Silkie G., approached Cooper’s car from different directions. After telling Cooper he would fetch the cocaine and return momentarily, Silkie G. drove away in a brown Cutlass. Meanwhile, Ferguson moved to the back seat of Cooper’s car and defendant sat in the front seat. Defendant told Cooper that Silkie G.’s real name was Eric Jones.
After waiting a while, Cooper asked defendant to call Jones. Defendant made a 10-minute call from the nearby pay phone, returned to the car, and went back to make a few other calls. When defendant returned to Cooper’s car again, Jones arrived alone in the Cutlass. Jones explained to Cooper that the runner had car trouble, and he left after saying he would return in a few minutes. When Jones returned at 4:30 p.m., another car followed him into the parking lot. The two cars parked about 100 feet from Cooper’s car. Four men, including Jones, alighted from the cars and talked for 30 seconds. Jones walked towards Cooper’s car, clutching the front of his shirt with his right hand. Defendant left Cooper’s car, and Jones took his place. Cooper asked if Jones had the cocaine, and he said he did. Jones then pulled a white Walgreen’s bag from under his shirt and gave it to Cooper, who examined it and then handed it to Ferguson for his inspection. It contained four clear plastic bags of white powder. Cooper pulled out a "flash roll of money” and began counting it. Cooper then gave a prearranged signal to the other law enforcement agents. After defendant, Jones, and the other men were arrested, Cooper field-tested the white powder for the presence of cocaine; the test was positive. He sealed the Walgreen’s bag and each of the four clear bags with tape, placing his initials and I.D. number on the tape. Cooper kept the bags at his home overnight in a locked cabinet and took them the next day to the crime lab, where he gave them to Richard Paulas for testing.
Sergeant Clem Ferguson’s testimony parallelled that of Cooper. The testimony of Officer James Kizart, who was on surveillance, was substantially similar.
After Cooper gave him the bags, Richard A. Paulas, a forensic scientist for the Illinois State Police in 1988, tested the white powder for the presence of controlled substances. Until Paulas began the tests, the bags were sealed and placed in an evidence vault; when he retrieved them, they were still sealed. Before testing, Paulas weighed the white powder on a scale that had been tested for accuracy; it totaled 106.7 grams.
After his motion for a directed verdict was denied, defendant testified in his own defense. He first met a man named Greg in late 1986, when defendant worked for him delivering telephone books. Defendant did not hear from Greg again until late May 1988, when he began calling defendant repeatedly at home. Defendant described conversations in which he told Greg that he "d[id]n’t get involved in those type[s] of things” and that he purchased only in quantities sufficient for his own consumption. Eventually, Greg asked if defendant wanted to meet his sister, "Jennifer.” Defendant and "Jennifer” conversed on the telephone, and he told her he used cocaine and that he wanted to do cocaine with her. Defendant first saw "Jennifer” in person on July 13, when she came to
The following day, "Jennifer” called him and said Cooper wanted more cocaine. She called again that night and asked him to get eight ounces of cocaine; Greg too called daily with the same request. Defendant told each of them that he did not get involved in purchases of such large quantities. Tired of Greg’s calls, and in hopes of receiving some cocaine for himself as a reward, defendant admitted to calling Cooper on July 18, 1988, to arrange a cocaine connection. On that day, he and Cooper unsuccessfully attempted to purchase cocaine from the seller in the earlier transaction and three other sellers. Although "Jennifer” ceased her calls, Greg continued his almost daily barrage of telephone calls. On the morning of July 27, defendant found a cocaine source, called Officer Cooper, and helped arrange a place and time for the delivery. He denied, however, seeing the transaction involving cocaine, and when asked about his knowledge of the cocaine transaction that was to occur that day, defendant gave the following testimony in response to the prosecutor’s questions:
"Q. And you knew that a cocaine transaction — that there was going to be a sale of cocaine when Cooper and Silky G[.] got together, right?
A. I didn’t know.
Q. Well, you thought Cooper and Silky G[J were going to try to get it, right?
A. That’s correct.
Q. And you were willing to put Cooper and Silky G[J together?
A. That’s correct.
Q. And you thought there was a good possibility of cocaine?
A. I thought they were going to talk.
Q. And you figured that if a deal didn’t occur that day you would have hooked up Cooper and Silky G[.] and they could work it out?
A. They were gain’ do what they wanted to do.
Q. And what they wanted to do probably would have been a cocaine deal, right?
A. I don’t know.”
Defendant’s mother also testified. She met Greg around 1985. In 1986 or 1987, when Greg was looking for people to deliver phone books, she recommended her son. She corroborated her son’s testimony that Greg had called a number of times for defendant in the days between July 13 and July 27. Defendant’s sisters, Cassandra Wilson and Genevosineo Welch, testified similarly.
In the State’s rebuttal case, Cooper denied knowing or working with an informant named Greg. He also denied inhaling the cocaine that he had purchased on July 13. During his earlier testimony, Cooper had denied that he had any contact with defendant on July 18.
At the jury instruction conference, defense counsel objected to the absence of an entrapment instruction. The State countered that according to the supreme court decision in People v. Gillespie (1990),
While deliberating, the jury sent out the following question: "Does the law allow for a person to be set up in entrapment?” The court responded, "Relative to your question, you have received instructions regarding the law in this case.” Defense counsel responded "right” when the court stated that nobody had any objection to this response. The court then added, "Read the instructions and apply the instructions according to the facts in this case.” Defendant challenged this as an instruction to come to a conclusion.
"The fines are required now. $5600 the Court considers to be the street value based upon the agreement of the amount to be paid for[ ] the cocaine that was involved in this transaction, and accordingly each defendant is so fin[e]d $5600.”
I
Defendant first argues that the circuit court abused its discretion in not instructing the jury on the defense of entrapment. He concedes that, to avail oneself of this defense, one must admit to having committed a crime, but he contends that he did so by testifying that he secured a supplier for four ounces of cocaine, called Cooper to arrange the meeting, and called Jones to tell him of the arrangements for delivery. He contends that neither his denial of witnessing the transaction nor his saying he did not know if a sale would occur when Jones and Cooper met constitutes a denial of the offense. Instead, he argues, he testified only that he did not actually see the transaction, given that he had walked away from Cooper’s car when Jones arrived, and that although he thought that Cooper and Jones would consummate the sale, he could not have known for certain, for he had no control over the outcome of the meeting. Taken as a whole and subjected to a fair reading, defendant insists, the gist of his testimony was to admit his role in the transaction.
If a defendant’s conduct "[was] incited or induced by a public officer or employee, or agent of either, for the purpose of obtaining evidence for the prosecution of such person,” the defendant is not guilty unless he was "merely afford[ed] *** the opportunity or facility for committing an offense in furtherance of a criminal purpose which [he] ha[d] originated.” (Ill. Rev. Stat. 1987, ch. 38, par. 7 — 12 (now 720 ILCS 5/7 — 12 (West 1992)).) To invoke the entrapment defense, a defendant must admit committing the elements of the charged offense while denying that he was inclined to do so before law enforcement agents intervened. (People v. Cooper (1992),
When deciding whether to give the instruction, the circuit court must view the evidence in the light most favorable to the defendant, and the instruction is justified even if only slight evidence is presented that, if believed, establishes the elements of the defense. (Cooper,
In Gillespie, the defendant, charged with bribery, admitted to giving money to a correctional officer, while denying that the purpose was to obtain a favorable job assignment. The defendant claimed that the funds were a donation for a Christmas program. (Gillespie,
In contrast, viewing the record as a whole, this defendant’s testimony did not constitute a denial of an essential element of the crime. Although defendant did offer conflicting statements throughout his testimony, when considering the evidence in the light most favorable to defendant, the "slight evidence” standard of Cooper (
The substance of defendant’s litigation strategy, from opening statements to closing arguments, concerned entrapment. Defendant claimed that he had no intention of involving himself in the crime, and his participation was induced by the police. Moreover, despite making a specific inquiry as to entrapment, the jury did not receive any instruction concerning that subject. Thus, as the record does not "demonstrate that the result of the trial would not have been different if the proper instruction had been given” (People v. Johnson (1991),
Accordingly, defendant’s conviction is reversed and this matter is remanded for a new trial.
II
Defendant also contends that the circuit court erred in denying his motion for disclosure of the identity of "Jennifer.” Because we reverse on the first issue raised by defendant, there is no need for us to reach this issue here. Similarly, because defendant is to receive a new trial, there is no need for this court to consider whether the amount of his fine was appropriate.
Reversed and remanded.
SCARIANO and McCORMICK, JJ„ concur.
Notes
Defendant was tried separately from, but simultaneously with, Eric Jones and the two other men, all of whom waived a jury.
One bag had 29.5 grams, another 24.6 grams, the third had 27.8 grams, and the fourth had 24.8 grams.
Apparently, the prosecutor was thinking of testimony that no one gave but that he had alluded to in his opening: that Jones had offered Cooper only four, not eight, ounces, for which he was to pay $5,600. In fact, no evidence had been elicited concerning that quantity or that price.