People v. Cross

• Decision Date: 19 October 1979
• Docket Number: 51230 and 51256,Nos. 51201,s. 51201
• Citation: 33 Ill.Dec. 285,396 N.E.2d 812,77 Ill.2d 396
• Parties: , 33 Ill.Dec. 285 The PEOPLE of the State of Illinois, Appellant, v. Odie CROSS, Jr., Appellee. The PEOPLE of the State of Illinois, Appellant, v. Tom HAYWOOD, Appellee. The PEOPLE of the State of Illinois, Appellant, v. Robert THOMAS, Appellee.
• Court: Illinois Supreme Court

Page 812

396 N.E.2d 812

77 Ill.2d 396, 33 Ill.Dec. 285

The PEOPLE of the State of Illinois, Appellant, v. Odie CROSS, Jr., Appellee.

The PEOPLE of the State of Illinois, Appellant, v. Tom HAYWOOD, Appellee.

The PEOPLE of the State of Illinois, Appellant, v. Robert THOMAS, Appellee.

Nos. 51201, 51230 and 51256.

Supreme Court of Illinois.

Oct. 19, 1979.

As Modified On Denial of Rehearing Nov. 30, 1979.

William J. Scott, Atty. Gen., Chicago, and Clyde L. Kuehn, State's Atty., Belleville (Donald B. MacKay and Melbourne A. Noel, Jr., Asst. Attys. Gen., Chicago, and Keith P. Vanden Dooren, Asst. Director of State's Attys. App. Service Commission, Mount Vernon, of counsel), for appellant in case no. 51201.

John H. Reid, Deputy Defender, Mount Vernon and Robert E. Davison, First Asst. Appellate Defender, Springfield, for appellees in case nos. 51201 and 51230. William J. Scott, Atty. Gen., Chicago, and Clyde L. Kuehn, State's Atty., Belleville (Donald B. MacKay and Melbourne A. Noel, Jr., Asst. Attys. Gen. and Raymond F. Buckley, Jr. and Ann E. Singleton, State's Attys. Appellate Service Commission, Mount Vernon, of counsel), for the People in case nos. 51230 and 51256.

Marc M. Barnett, Marvin J. Glass, Dennis A. Berkson, and Charles K. Piet, Barnett, Ettinger, Glass, Berkson & Braverman, Ltd., Chicago, for appellee in case no. 51256.

KLUCZYNSKI, Justice:

The primary issue raised in these three consolidated cases is whether the appellate court properly held that entrapment exists as a matter of law whenever a government informer supplies a controlled substance to an individual who is later prosecuted for the sale of that substance. Defendant Odie Cross, Jr., was convicted in a jury trial of the unlawful delivery of less than 30 grams of a substance containing heroin (Ill.Rev.Stat.1975, ch. 56 1/2, par. 1401(b)) and was sentenced to a term of imprisonment of two to six years, defendant Tom Haywood was convicted in a bench trial of the unlawful delivery of 30 grams or more of a substance containing lysergic acid diethylamide (LSD) (Ill.Rev.Stat.1975, ch. 56 1/2, par. 1404(a)(8)) and was sentenced to a term of imprisonment of four years to four years and one day, and defendant Robert Thomas pleaded guilty to a charge of unlawful delivery of 30 grams or more of LSD (Ill.Rev.Stat.1973, ch. 56 1/2, par. 1401(a)(8)) and was sentenced to a term of imprisonment of four to six years. All proceedings took place in the circuit court of St. Clair County. The appellate court reversed the convictions of defendants Cross (63 Ill.App.3d 628, 20 Ill.Dec. 251, 379 N.E.2d 1319), Haywood (63 Ill.App.3d 352, 20 Ill.Dec. 249, 379 N.E.2d 1317), and Thomas (61 Ill.App.3d 1112, 21 Ill.Dec. 611, 381 N.E.2d 1058 (Rule 23 order)) because of its findings of entrapment, and we allowed the State's petition for leave to appeal in each case.

Although the facts in these cases differ in most respects, they each involve the prosecution of an individual who claims to have been supplied with a controlled substance by a government informer and who, after selling the substance, was arrested. Defendant Thomas failed to raise this entrapment issue in his motion to withdraw his guilty plea, however, referring only to a deprivation "of a crucial defense." The argument is waived. (58 Ill.2d R. 604(d).) Our discussion of entrapment is therefore limited to defendants Cross and Haywood. They raised the defense of entrapment in the circuit court, and it therefore became incumbent upon the State to prove beyond a reasonable doubt that entrapment did not occur (People v. Dollen (1972), 53 Ill.2d 280, 284, 290 N.E.2d 879). In attempting to meet this requirement, the State offered evidence of the defendants' predisposition to commit the offense.

In reversing the judgments of conviction, the appellate court interpreted this court's decisions in Dollen and People v. Strong (1961), 21 Ill.2d 320, 172 N.E.2d 765, as establishing a Per se rule of entrapment whenever a government informer supplies a controlled substance to an individual who is later prosecuted for the unlawful delivery thereof. Although this application of the Dollen and Strong opinions may well be justified in light of language contained therein, we do not believe that the court in Strong intended to create a Per se rule, and the language in Dollen so interpreting Strong is in error.

In Strong, the court approved of the entrapment defense in a prosecution for unlawful possession and sale of heroin where the defendant's "only sale was of narcotics supplied to him by an informer in the employ of the government." (People v. Strong (1961), 21 Ill.2d 320, 326, 172 N.E.2d 765, 768.) Implicit in this holding was a finding that the defendant was not predisposed to commit the offense. It there appeared from the evidence that the drug sale in question was the defendant's sole experience with the unlawful distribution of heroin:

"The defendant testified that the informer, Reynolds, brought a package to his room and left it there without explaining what it contained, saying that he would return in about 45 minutes. Reynolds did return in that time accompanied by (Federal agent) Johnson. Reynolds asked the defendant to give the package to Johnson, which he did, whereupon Johnson gave the defendant $50. The defendant said that the money should go to Reynolds but Reynolds asked the defendant to keep the money and bring it to him that evening. He testified that he took the money to Reynolds later that day. The defendant testified that he did not knowingly sell agent Johnson any narcotics because he was not in the business, did not have any narcotics, did not know where to obtain any and had nothing to do with narcotics." (21 Ill.2d 320, 323, 172 N.E.2d 765, 766.)

In reaching its decisions, however, the court said:

"While we are sympathetic to the problems of enforcement agencies in controlling the narcotics traffic, and their use of informers to that end, we cannot condone the action of one acting for the government in supplying the very narcotics that gave rise to the alleged offense. We know of no conviction for sale of narcotics that has been sustained when the narcotics sold were supplied by an agent of the government. This is more than mere inducement. In reality the government is supplying the Sine qua non of the offense." 21 Ill.2d 320, 325, 172 N.E.2d 765, 768.

Dollen, too, is somewhat ambiguous because it interprets Strong as espousing a Per se rule of entrapment, yet at the same time the court's opinion inquires deeply into the question of whether the defendant was predisposed to commit the offense. The court says in one passage, "In Strong, we held that a conviction for the unlawful sale of narcotics cannot stand when the informer supplies the drugs." (53 Ill.2d 280, 284, 290 N.E.2d 879, 881.) Shortly thereafter, however, the court states:

"In the present case the testimony of defendant and Elmer Davis clearly indicates that defendant (a taxi dispatcher) innocently gained possession of the narcotics during a routine inspection of the vehicle driven by (informer) Wright. Defendant apparently had no prior history of narcotics involvement until this time. Wright, who immediately after the discovery suggested that he could find a buyer, also possessed an unparalleled opportunity to place the package in his vehicle. Moreover, the testimony of agent Norton and defendant confirms that Wright actively negotiated the price of the narcotics. It was also definitely established that at the approximate time of the discovery of the drugs Wright harbored resentment against the defendant." (53 Ill.2d 280, 284, 290 N.E.2d 879, 882.)

Evident from the latter passage is the court's concern that an innocent man had been convicted, thus casting doubt on its discussion of Strong.

The problem of interpreting Strong and Dollen has also caused the appellate court some difficulty, resulting in a split of authority on the question of whether a Per se rule governs. (Compare People v. Cross (1978), 63 Ill.App.3d 628, 632, 20 Ill.Dec. 251, 379 N.E.2d 1319; People v. Haywood (1978), 63 Ill.App.3d 352, 353, 20 Ill.Dec. 249, 379 N.E.2d 1317; People v. Thomas (1978), 61 Ill.App.3d 1112, 21 Ill.Dec. 611, 381 N.E.2d 1058 (Rule 23 order), and People v. Spahr (1978), 56 Ill.App.3d 434, 439, 14 Ill.Dec. 208, 371 N.E.2d 1261, with People v. Arbogast (1976), 41 Ill.App.3d 187, 190, 353 N.E.2d 434, People v. Hesler (1976), 39 Ill.App.3d 843, 850, 350 N.E.2d 748, and People v. Hatch (1964), 49 Ill.App.2d 177, 184, 199 N.E.2d 81.) This confusion has led us to consider the subject anew.

In our reconsideration of the subject and in light of the ever-growing drug problem, we are not so sure that the court should be so critical, as it was in Strong, of governmental action in infiltrating drug rings, and we do not believe that the courts should foreclose the possibility that a conviction of a predisposed individual could be sustained even though the government did furnish the controlled substance. The offense in question here is the unlawful delivery of a controlled substance and, although the government may have supplied the substance, the critical inquiry is whether the "criminal purpose" of Selling these substances originated with the defendants (Ill.Rev.Stat.1975, ch. 38, par. 7-12). By supplying an individual with controlled substances, the government is merely facilitating or providing the opportunity for the individual to make an unlawful delivery. This is not entrapment under our entrapment statute (Ill.Rev.Stat.1975, ch. 38, par. 7-12). Any contrary statement in Strong, decided before enactment of the statute, should no longer be followed.

The entrapment statute, based in large part on the leading case of Sorrells v. United States (1932), 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (see Ill.Ann.Stat., ch. 38, par. 7-12, Committee Comments, at 439 (Smith-Hurd 1972)), provides:

"A person is not guilty of an offense if his...