People v. Gonzales

• Decision Date: 02 July 1970
• Docket Number: 69--206,Gen. Nos. 69--205
• Parties: PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Lino GONZALES and Oscar Mata, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 234

260 N.E.2d 234

125 Ill.App.2d 225

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Lino GONZALES and Oscar Mata, Defendants-Appellants.

Gen. Nos. 69--205, 69--206.

Appellate Court of Illinois, Second District.

July 2, 1970.

Eugence G. Griffin, Aurora, for defendants-appellants.

Wm. Ketcham, State's Atty., Geneva, W. Ben Morgan, Elgin, for plaintiff-appellee.

SEIDENFELD, Justice.

Defendants appeal from judgments of conviction for the unlawful sale of narcotics, based upon a jury verdict rendered in a trial consolidated by stipulation. Each defendant was sentenced to not less than ten nor more than eleven years in the penitentiary.

The principal issue raised is a claim of entrapment. (Ill.Rev.Stat.1967, Ch. 38, Sec. 7--12) Defendants also claim error in the failure to afford them a preliminary hearing; in the refusal of a tendered instruction bearing on the effect of the failure of the State to call an informer as a witness; and in the denial of a motion for a new trial based upon alleged newly discovered evidence.

The fact of sale of marijuana by defendants on December 16th, 1968, is not disputed. The defense of entrapment is based upon claimed activities of one Nicholas Cadena, an informer in the service of the State.

From the testimony of defendants it was adduced that the defendant Oscar Mata had made a trip to Texas in July of 1968, and had there picked and returned with approximately six pounds of marijuana for the common supply of both defendants. From time to time, the defendants had smoked marijuana in the presence of each other, but had not given or permitted anyone else access to the supply.

Lino Gonzales testified that he and his wife customarily attended dances sponsored on behalf of a Spanish speaking community in Aurora by Cadena. He stated that on these occasions Cadena would frequently approach defendants with inquiries about possible sources of marijuana available for sale. Defendants said that they did, on each of some three occasions, refuse to discuss the matter. In one instance Cadena allegedly gave Gonzales a marijuana cigarette to smoke. Mata testified that on one occasion he had been asked by Cadena to go to Texas to procure marijuana for him, but that he also refused.

Gonzales testified that on December 16th, 1968, without prearrangement, Cadena and one Kenneth Cloud, a government narcotics agent, drove to his home; that Cloud remained in the car and Cadena approached Gonzales to again discuss purchasing marijuana, and that he refused to enter into the discussion; that Cadena advised him that a 'new car' and 'money in your pocket' was available if he would consider engaging in marijuana sales. It appeared that Gonzales was a factory worker supporting himself, his wife and six children on $92.00 a week, and lived in a sub-standard dwelling. At this suggestion, on December 16th Gonzales proceeded to the car in which Cloud was waiting. While in the automobile, Cadena introduced Cloud as a narcotics peddler and allegedly advised defendant in Spanish that a 'house and car' were available for him by trafficking in marijuana.

The three persons proceeded to defendant Mata's home. There Cadena offered to purchase the remainder of the supply for $80.00 a pound. Mata refused this offer, but Cadena made various counter-offers and a price was agreed upon. The defendants divided the money.

Cloud testified for the State. He related that he, with agents Jordan and Nolan, drove to Aurora on December 16th. The three met Cadena. They knew him as an informer who had given information to the State's Attorney. Only Jordan had seen Cadena before. Cadena was not a government agent and received no compensation for services in the matter. They searched Cadena for money or marijuana, marked $600.00 in bills which the agents retained for the possible purchase of marijuana. Cloud drove an unmarked government car to the home of the defendant Gonzales with Cadena as his passenger; the other agents followed in another car. There Cadena went to Gonzales' residence and brought him out to the car. Cloud and Cadena were in the front seat, Gonzales in the rear. Cadena introduced Cloud to Gonzales and Cloud gave his name as 'Chuck' and said he trafficked in marijuana for resale in Chicago and was interested in good marijuana for resale.

Cloud testified that Gonzales then responded, 'Okay. First let's go see Oscar.' The three drove to where Mata was working on his car. Gonzales called to Mata who then got in the back seat with him. The offer to purchase marijuana was made by Cloud to Mata. Mata left and returned from his home with a sample in an envelope which he gave to Cloud. The defendants talked to each other, partly in Spanish, partly in English, until they finally agreed on the price. Cloud admitted that he did not understand Spanish.

The defendants drove away in Mata's car and returned after a short interval and drove along side Cloud, facing in the same direction. Through the open windows of the cars Gonzales handed Cloud a grocery bag containing the marijuana and Cloud handed Gonzales $400.00 in marked funds which Gonzales in turn handed to Mata. Cloud testified that he did not see the defendants thereafter until the trial.

Agents Jordan and Nolan testified to seeing the delivery of the marijuana and exchange of the money in corroboration of Cloud's testimony. Nolan testified that he followed defendants to a cafe and went in alone to observe them.

The testimony of defendants relating to the delivery of the marijuana and subsequent events conflicted with the State's testimony in numerous respects. Defendants testified that Cadena was driving his car and Cloud was the passenger; that Cadena turned over $500.00 before defendants drove away to get the marijuana; that Cadena had only the $400.00 and secured the additional $100.00 from Cloud; that they met Cloud later at a cafe and gave him back $160.00 because he complained of the quality of the marijuana. Defendant Mata testified that he drove along side of the car in which Cadena was driving but in the opposite direction, and that he handed the grocery bag to Gonzales who handed it across to the other car, directly to Cloud in the passenger seat.

Defendants argue that the mere possession and use of narcotics by defendants without more did not constitute evidence of a predisposition to sell narcotics; therefore, that the origin of the sale was to be found in the persuasions and inducements offered by the informant Cadena and by the government agents. They urge that, having offered the affirmative defense of entrapment, the State then had the burden of proof and that it failed to negate the defense beyond a reasonable doubt. The failure to call the informer as a witness is suggested as a significant factor in the alleged failure of the State's proof.

The entrapment defense has been codified in general language in Ill.Rev.Stat.1967, Ch. 38, Sec. 7--12:

'A person is not guilty of an offense if his conduct is 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. However, this Section is inapplicable if a public officer or employee, or agent of either, merely affords to such person the opportunity or facility for committing an offense in furtherance of a criminal purpose which such person has originated.'

Where it appears that law officers or their agents have conceived and planned a criminal offense and have incited, induced, instigated or lured an accused into committing an offense, which he otherwise would not have committed and had no intention of committing, the defense is established. Entrapment is not available to one who has the intention and design to commit the criminal offense, and who does commit the essential acts constituting it, merely because a law officer or his agents, for the purpose of securing evidence, affords such person the opportunity to commit the act, or purposely aids and encourages a defendant in its perpetration. The People v. Hall, 25 Ill.2d 297, 300, 185 N.E.2d 143 (1962); The People v. Outten, 13 Ill.2d 21, 23, 147 N.E.2d 284 (1958); The People v. Wells, 25 Ill.2d 146, 149, 182 N.E.2d 689 (1962). The law distinguishes between a trap for the unwary criminal and a trap set to ensnare the innocent and law abiding into the commission of a crime. Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958); The People v. Outten, supra, 13 Ill.2d at page 24, 147 N.E.2d 284. When the defense is invoked, predisposition and criminal design become relevant (see The People v. Outten, supra, at page 25, 147 N.E.2d 284). But, although a defendant has no prior criminal record, this factor alone cannot overcome evidence of his ability and instant willingness to make the unlawful sale as soon as the opportunity to do so is presented. The People v. Gonzales, 25 Ill.2d 235, 239, 184 N.E.2d 833 (1962).

On this record we conclude that the testimony of the witnesses for the State established beyond a reasonable doubt a willing sale, with no overbearing persuasion on the part of the agents, except the suggestion of what the purchase money could buy. The only reluctance displayed at the particular time of the admitted sale related to the price to be paid. This evidence showed that defendants were ready to make the unlawful sale and had quick access to a substantial quantity of narcotics. This established the criminal design in the minds of the defendants resulting in...