People v. Draheim

• Decision Date: 04 March 1993
• Docket Number: No. 2-91-0630,2-91-0630
• Citation: 242 Ill.App.3d 80,609 N.E.2d 1044,182 Ill.Dec. 510
• Parties: , 182 Ill.Dec. 510 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Michael DRAHEIM, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1044

609 N.E.2d 1044

242 Ill.App.3d 80, 182 Ill.Dec. 510

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Michael DRAHEIM, Defendant-Appellant.

No. 2-91-0630.

Appellate Court of Illinois Second District.

March 4, 1993.

Peter B. Nolte, Rockford, for Michael Draheim.

Roger T. Russell, Boone County State's Atty., William L. Browers, John X. Breslin, Deputy Directors, State's Atty. Appellate Prosecutors, Ottawa and Ruth Stern Geis, Chicago, for the People.

Justice BOWMAN delivered the opinion of the court:

A jury convicted defendant, Michael Draheim, of one count of unlawful delivery of a controlled substance in an amount more than 1 gram, but not more than 15 grams in violation of section 401(b)(2) of the Controlled Substances Act (Ill.Rev.Stat.1989, ch. 56 1/2, par. 1401(b)(2)). He was sentenced to a term of six years with the Department of Corrections and fined $2,250. Defendant presented an entrapment defense and asserts on appeal that (1) the State failed to prove beyond a reasonable doubt that he was not entrapped, (2) he was denied his sixth amendment right to confront witnesses when the trial court refused to allow defense counsel to inquire as to monies paid to the informant and how many other drug deals she had set up, (3) the State's comments as to defendant's character during closing argument exceeded the bounds of propriety and denied defendant a fair trial, and (4) the defendant's sentence must be vacated and the cause remanded for resentencing where, he alleges, the trial court considered that, absent a statement of guilt by the defendant, a sentence other than one involving incarceration would not be imposed. We affirm.

Wendy Schindler was a confidential source for the Illinois State Police Department of Criminal Investigation (DCI) and testified for the State. According to the record, she became an informant because she had been a drug dealer herself, realized what happened to her, and did not want Michael Draheim to "die as a drug dealer." She sold drugs from May 1988 through November 1988 to support her habit and, according to the witness, quit using drugs in February 1989. She resided in Belvidere and had worked at the Chrysler Assembly Plant in Belvidere for approximately 12 1/2 years. She had known the defendant, Michael Draheim, for years.

Wendy was referred to the DCI by a police officer that she had been in contact with regarding a battery charge for which she was the victim. According to the record, she began working as an informant in April 1989 "because [she] wanted to give a little bit back to the community and to where [she] worked to try to make it a better place to live." She had never been arrested at any time for selling or dealing cocaine. There were no pending charges that she knew of that prompted her to work with DCI as an informant.

Schindler testified that she had phoned the defendant between noon and 1 p.m. on February 7, 1990, and asked if he would sell her and her friend, Karen Lowrey, one-eighth of an ounce of cocaine. Defendant responded that he only had one-sixteenth of an ounce but he would try to get more. He indicated that he would sell one-sixteenth of an ounce for the sum of $100 and Schindler then suggested that they all meet at Grandpa's Restaurant parking lot at approximately 3 p.m.

After that phone conversation, the record reveals, Schindler testified that she contacted her "source" with DCI, Officer Berry, and told Officer Berry of the phone conversation that she had with the defendant. She then met Inspector Karen Lowrey, Sergeant Joe Rollins, and Officer Leon Berry at approximately 3 p.m. at the Oxford Inn parking lot. There, she and her vehicle were searched. Lowrey was currently employed by the Freeport police department and had been so for the past 25 months. For the previous 12 months Lowrey had been assigned to the Illinois State Police Narcotics Task Force. After the searches, Schindler and Lowrey drove to Grandpa's Restaurant parking lot in Belvidere. They arrived at approximately 3:15 p.m. and waited there for defendant, who pulled into the lot in a blue pickup truck. According to the record, she and Lowrey got out of her car, walked over to defendant's truck, and the defendant said, "get in." The defendant was sitting in the truck and had an approximately three-year-old girl sitting on the seat next to him. Schindler testified that she got into the truck and Lowrey stood outside the truck for a "couple of minutes" and then Lowrey returned to Schindler's car.

The defendant asked whether she had the money. Schindler called Lowrey over to the passenger side of the truck, telling the defendant that Lowrey had the money. Lowrey asked defendant how much it was, to which defendant replied $100. Defendant then took out a baggy containing what later was revealed to be cocaine and gave it to Lowrey by reaching over the little girl and Schindler. Schindler testified that Lowrey then handed the defendant $100 and watched him count the money. Defendant stated that he might be able to get one-sixteenth of an ounce later on.

Schindler testified that she had made only one telephone call to the defendant prior to or on February 7, 1990, in order to set up the cocaine purchase from defendant. She admitted that she was alone when she made the call to defendant and that the phone call was not monitored in any manner. Furthermore, the only information Officer Berry had concerning the call was what Schindler told him. Schindler stated that, as far as she knew, defendant had never seen Lowrey before. Despite this, defendant gave Lowrey the cocaine on February 7, 1990, rather than giving it to Schindler, whom he did know.

Schindler admitted that she had sold drugs to other Chrysler Corporation employees. In fact, she sold drugs to anyone who would purchase from her. Schindler also testified that she was acquainted with Darrell Hubbard, who, when she was seeing him in 1987, 1988, and 1989, was a cocaine dealer. Schindler testified that if she was out of cocaine she would get it from Darrell for free.

Schindler testified that she received $40 for each transaction that she set up for DCI, but the court sustained objections by the State when defense counsel asked the witness how many people she had set up, how many times she had been paid $40, and whether she had ever set up her friend Darrell Hubbard. Schindler testified that she saw defendant many times at Chrysler Corporation and she did, on many occasions, ask him to sell her cocaine. She admitted to calling the defendant once on the telephone between the February 7, 1990, transaction and March 2, 1990, in order to induce him to sell her more cocaine. On March 2, 1990, Schindler called defendant again to ask him to sell her cocaine, and they agreed to meet later that day. Ultimately, she and Karen Lowrey met the defendant at the Chrysler Corporation parking lot at approximately 3:15 p.m. There, defendant gave Schindler two baggies containing cocaine and received $200 from Lowrey. Lowrey then asked defendant whether they could purchase one ounce. Defendant said that he would see what he could do and would get in contact with Schindler. Schindler also testified that following the March 2, 1990, incident she asked the defendant on several occasions to sell her even greater quantities of cocaine, but he refused.

Lowrey then testified. Lowrey's testimony regarding the events of the February 7, 1990, and March 2, 1990, transactions with defendant corroborated Schindler's testimony as to the aspects of the transaction for which Lowrey was present. Lowrey identified defendant's exhibit No. 2 as a report she wrote on February 7, 1990, regarding the details of the transaction at Grandpa's Restaurant parking lot. She admitted that in the report she indicated that she never exited Schindler's vehicle. Furthermore, she admitted that the report stated that Schindler exited the vehicle and walked to defendant's truck, and then Schindler and defendant walked back to Schindler's car, where Lowrey had remained.

Following this testimony, the State rested and the defendant's motion for directed verdict, based upon the defense of entrapment, was denied. Defendant was then called as a witness on his own behalf. Defendant testified that he had lived his entire life in Belvidere and presently lived there with his girlfriend and her daughter. He stated that he had been employed by Chrysler Corporation for approximately 20 years. He testified that he had known Schindler and other members of her family for over 20 years, saw her from time to time in Belvidere, and considered her a friend.

Defendant testified that in 1988 he began using cocaine and used it once or twice a week, or sometimes not at all. When he started using cocaine he purchased it from Schindler because the two would often meet at Grandpa's Restaurant after getting off work at Chrysler. It was Schindler who initiated the first conversation regarding cocaine by telling defendant that she could get it for him if he wanted it. During 1988 and 1989, he purchased it approximately 12 times from her. During 1988 she introduced defendant to her friend Darrell. She identified Darrell as her source of cocaine.

Defendant testified that, during the month of January 1990, defendant had several telephone conversations with Schindler and saw her several times at work. In all of these conversations she asked him to purchase cocaine for her. He replied that he could not get it from anyone and that she should try to buy some from Darrell. He estimated that there were at least 15 to 20 telephone calls from Schindler and four or five occasions when she made the same request at the Chrysler Plant while both of them were at work. There were additional similar phone calls from Schindler to defendant in February 1990. According to the record, on several occasions she mentioned the fact that he "owed her a favor because she had gotten it for [him] before." He...