People v. Trice

• Decision Date: 01 November 2017
• Docket Number: NO. 4–15–0429,4–15–0429
• Citation: 2017 IL App (4th) 150429,87 N.E.3d 1087
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. John Edward TRICE, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

2017 IL App (4th) 150429

87 N.E.3d 1087

The PEOPLE of the State of Illinois, Plaintiff–Appellee,

v.John Edward TRICE, Defendant–Appellant.

NO. 4–15–0429

Appellate Court of Illinois, Fourth District.

FILED November 1, 2017

Michael J. Pelletier, Patricia Mysza, and Maria A. Harrigan, of State Appellate Defender's Office, of Chicago, for appellant.

Jason Chambers, State's Attorney, of Bloomington (Patrick Delfino, David J. Robinson, and Thomas R. Dodegge, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

JUSTICE STEIGMANN delivered the judgment of the court, with opinion.

¶ 1 In January 2015, a jury convicted defendant, John Edward Trice, of delivery of a controlled substance at a truck stop ( 720 ILCS 570/407(a)(2)(A) (West 2012)) and delivery of a controlled substance ( 720 ILCS 570/401(c)(2) (West 2012)). The trial court later sentenced him to seven years in prison.

¶ 2 Defendant appeals, arguing that his convictions ought to be reversed and his case remanded for a new trial because (1) the trial court erred by refusing to instruct the jury on entrapment, (2) trial counsel was ineffective for failing to request a jury instruction about paid informants, and (3) the State committed prosecutorial misconduct. We disagree with these contentions and affirm.

¶ 3 I. BACKGROUND

¶ 4 In October 2013, following a controlled drug transaction, defendant was charged with two Class 1 felonies: (1) delivery of a controlled substance at a truck stop (cocaine) ( 720 ILCS 570/407(a)(2)(A) (West 2012)) and (2) delivery of a controlled substance (cocaine) ( 720 ILCS 570/401(c)(2) (West 2012)). (We note there was a scrivener's error in the charging instrument, which indicated defendant was charged under section (b)(2) ( 720 ILCS 570/407(b)(2) (West 2012)) as opposed to section (a)(2)(A) ( 720 ILCS 570/407(a)(2)(A) (West 2012)).) The case proceeded to a jury trial in January 2015, and the following testimony was presented.

¶ 5 Beverly Throgmorton testified that she became a paid informant for the Bloomington police department in March 2013, following her arrest for possession of a crack pipe. She agreed to work for the Bloomington police department as an informant in exchange for the charges against her being dropped and, later, in exchange for money. She described her "steady employment" as working for the Bloomington police department. It paid her "a couple of thousand dollars." In her role as an informant for the Bloomington police, Throgmorton had bought drugs from 10 or more individuals.

¶ 6 Throgmorton had previously been addicted to crack cocaine for over 20 years, but at the time of defendant's trial, she had been sober for over 17 months. She had convictions for forgery, possession of a controlled substance, and retail theft, but she explained that her criminal behavior had all stemmed from her addiction to cocaine. She had begun a culinary career by taking classes through a local church, which led to her culinary arts degree and her currently managing a restaurant and catering company.

¶ 7 Throgmorton testified that she informed Bloomington police detective Stephen Brown in October 2013 that she could purchase crack cocaine from defendant. Throgmorton explained that she first met defendant because he lived in an apartment across from her brother. She told him she knew some truckers who bought crack, and he gave her his phone number. When she later told defendant that one of her truck drivers was coming to town, defendant told her that he could get whatever she wanted. Several days later, she called defendant and spoke with him on a speakerphone while Brown was in the room. She told defendant that she knew of a truck driver who wanted to purchase $400 worth of cocaine. Defendant said "okay," and they arranged to meet at the Pilot gas station in Bloomington.

¶ 8 Throgmorton and Brown went to the gas station, but defendant was not there. She called defendant multiple times but learned he had left his phone somewhere. Defendant later called her and said he was on his way and she should not leave. When he got there, she got into the back passenger seat of his vehicle. Another black male, whom she did not know, was in the car. Defendant handed her a bag of what she believed was crack cocaine, and she handed him $400 of marked bills she had received from Brown. She then returned to Brown's car and handed Brown the bag.

¶ 9 Brown field-tested the contents of the bag and determined it contained crack cocaine. (At trial, the parties stipulated that the contents of the bag tested positive for 1.3 grams of cocaine.)

¶ 10 Brown then contacted police officer Jared Johnson, who had followed defendant's car from the scene. Johnson pulled defendant's vehicle over and eventually arrested defendant and the vehicle's other occupant, Jovon Wilder. When the police searched Wilder, they found a small plastic bag of crack cocaine.

¶ 11 Detective Jared Bierbaum performed surveillance of the transaction at Pilot and met Johnson at the traffic stop. Bierbaum searched defendant's person and recovered a cellular phone and $200 in bills marked for the controlled transaction. Bierbaum later confirmed that the number to the cellular phone recovered from defendant matched the number that Throgmorton used to communicate with defendant to arrange the transaction.

¶ 12 At the Bloomington police department, Brown strip-searched defendant and recovered $200 from defendant's underwear. Brown later determined that cash was comprised of the remaining marked bills from the controlled transaction.

¶ 13 During Brown's interview of defendant, a recording that was ultimately played for the jury, defendant stated Throgmorton contacted him and asked if he could get her $400 worth of cocaine. He indicated that he "knew a guy." Defendant explained to Brown that he really did not know Wilder, but defendant's sister was dating Wilder. However, defendant called Wilder after Throgmorton asked him for the cocaine. He told Wilder that Throgmorton needed $200 worth of crack cocaine rather than $400 worth. A transaction was arranged, and on the date of the transaction, Wilder called defendant for a ride to Pilot to meet Throgmorton. When Wilder and defendant arrived at the gas station, Throgmorton got into his vehicle and placed $400 on the center console. Defendant stated he immediately pocketed $200 of the cash because he intended to use the money for gas. Wilder handed Throgmorton the cocaine, and Throgmorton exited the vehicle. When defendant noticed the police attempting to pull him over after the transaction, defendant grabbed the remaining $200.

¶ 14 Defendant's trial testimony conflicted with the above statement he gave to Brown following his arrest. Defendant testified that he was on social security disability and worked transporting children to his sister's day care center. He knew Throgmorton from having given her a ride home when it was raining. He gave her his phone number at her request. He had been to her apartment twice, and the second time they watched a movie.

¶ 15 Throgmorton called him and asked if he knew anybody, which he took to mean whether he knew someone from whom she could purchase drugs. Defendant testified he stated, "I know one guy, but I don't know."

¶ 16 On the day of the controlled transaction, defendant testified he left his cellular phone at his sister's day care, and his sister called him on his landline because Throgmorton had called his cellular phone several times. Defendant retrieved his phone and saw a text from Throgmorton that said, "I'm here," which defendant understood to mean that she was at Pilot. According to defendant's testimony, Throgmorton had called a few days before and told him she would be at Pilot, and if he got a chance to go there, that was where she would be. Defendant responded to her text, stating, "I'm on my way." Defendant then received a call from Wilder, who said that he was walking to Pilot and asked defendant to pick him up because "that one girl called." Defendant responded, "What you want me to do about it," and Wilder stated, "I just want you to know, Man, she called me." Defendant agreed to give him a ride to Pilot but said that was all he would do.

¶ 17 Defendant picked up Wilder, and when they arrived at Pilot, Throgmorton entered the vehicle. Defendant did not say anything while she was in the vehicle, and he looked out the window the entire time. He testified he did not know what Wilder did, but "he had his hands back there." Defendant testified he "didn't even look that way," and he did not "see anything else, no drugs or nothing." Throgmorton then left the vehicle, and defendant told Wilder he wanted his gas money. After driving for a few minutes, defendant noticed the police attempting to pull him over. Defendant stated he pulled over and looked around the car as the officers approached. He noticed the cash and grabbed it.

¶ 18 Defendant testified he considered that he did Throgmorton a "favor" by giving Wilder a ride to Pilot. Defense counsel asked defendant, "And you were unwilling to answer her call and do any further work as far as finding drugs for her?" Defendant responded affirmatively. Defense counsel asked defendant if he understood Wilder's phone call to mean that Wilder was meeting Throgmorton to sell drugs to her, and defendant responded affirmatively. Defense counsel then asked, "And knowing that, you provided the ride anyway; is that right?" Defendant responded, "I just gave him a ride. I didn't know—it was his business whatever he was doing." Defense counsel later asked, "That was a ride which you understood was likely to lead to criminal activity; is that right?" Defendant responded, "I felt like this: I gave him a ride, but he's a grown man. Whatever he do [sic] is his business, as long as I'm not involved. I didn't put my hands on anything. I didn't touch anything at all." Defendant then denied receiving cash directly from Throgmorton or seeing or handling "any bag."

¶ 19...