People v. Villanueva

• Decision Date: 31 March 1977
• Docket Number: No. 76--9,76--9
• Citation: 5 Ill.Dec. 218,361 N.E.2d 357,46 Ill. App. 3d 826
• Parties: , 5 Ill.Dec. 218 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Roy VILLANUEVA, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 357

361 N.E.2d 357

46 Ill.App.3d 826, 5 Ill.Dec. 218

PEOPLE of the State of Illinois, Plaintiff-Appellee, v.Roy VILLANUEVA, Defendant-Appellant.

No. 76--9.

Appellate Court of Illinois, Third District.

March 31, 1977.

Santo J. Volpe, Chicago, for defendant-appellant.

Robert M. Hansen, James E. Hinterlong, Director, Ill. State's Attys.Assn., Ottawa, H. Edward Keefe, State's Atty., Rock Island, for plaintiff-appellee.

ALLOY, Presiding Justice:

DefendantRoy Villanueva was found guilty of unlawful delivery of a controlled substance in violation of par. 401 of Illinois Controlled Substances Act(Ill.Rev.Stat.1975, ch. 56 1/2, par. 1100, et seq.) following a jury trial.Defendant was sentenced to a term of imprisonment of not less than three nor more than nine years.

On appeal in this Courtdefendant contends (1) that the State did not prove beyond a reasonable doubt that defendant was not entrapped; (2) that the trial court erred in refusing to instruct the jury as to the scrutiny which must be applied to accomplice testimony; (3) that the classification of cocaine in the Illinois Controlled Substances Act as a narcotic is an unreasonable and unconstitutional classification, and (4) that defendant's sentence of three to nine years is excessive.

On February 6, 1975defendant was indicted for the offense of unlawful delivery of a controlled substance (specifically 27 grams) being under 30 grams of cocaine, in violation of par. 401 of the Illinois Controlled Substances Act.Prior to the actual trial, defendant made two motions to dismiss the indictment on the ground that the Illinois Controlled Substances Act arbitrarily and unconstitutionally placed cocaine in the same class as opium and other narcotic drugs, without a reasonable basis in medical and scientific fact.The trial court denied these motions.Subsequently, defendant brought the issue of the validity of the cocaine classification to this Court in an interlocutory appeal (People v. Villanueva, No. 75--236), and that appeal was dismissed on the motion of the State.

It appears from the record that on July 22, 1974(without contradiction) that defendant delivered 27 grams of cocaine to Yvonne Del Principe, a special agent for the Illinois Bureau of Investigation assigned to the Narcotics Division.Tom Garnica, a confidential source for the Illinois Bureau of Investigation (IBI)Had made arrangements for Del Principe to purchase the drugs from defendant.Garnica was a paid informant, who had previously been arrested by the IBI for the offense of calculated criminal conspiracy, and was subsequently convicted of a lesser charge and placed on probation, in exchange for his agreement to work for the IBI.

Defendant and Garnica first met in early 1974.Sometime after May 12, 1974, the defendant and Garnica commenced a series of telephone calls and meetings.Defendant stated that he received eight telephone calls from Garnica.Garnica testified that he called defendant four times.Defendant and Garnica both, however, testified as to two occasions when defendant called Garnica.Near the end of the month of June, 1974, defendant, having received messages that Garnica had tried to call him, spoke with Garnica over the telephone, and when Garnica stated that he had something to talk about which could not be said over the phone, defendant agreed to meet Garnica at a hotel in Rock Island.At that meeting, Garnica asked defendant if he was interested in investing some money in cocaine and defendant told Garnica that he was not interested in such a venture.Garnica told defendant that he would not be required to make up his mind at that time but that Garnica would call the defendant later.Three days later, Garnica telephoned the defendant, who stated that he was not interested in the transaction, and Garnica told defendant to keep thinking it over.

Later, defendant received a message that Garnica had tried to call him.Defendant telephoned Garnica, and the two arranged a meeting at a restaurant in Rock Island.At that meeting, the two conversed about cocaine, and Garnica assured defendant that there were only minimal risks involved.Defendant told Garnica that he would think about it and call Garnica back.Sometime later, defendant received another message that Garnica had telephoned, and returned the call.The topic of conversation again was cocaine and Garnica asked defendant how much of the drug he could get.Defendant testified to some three additional telephone calls from Garnica during the period from July 17, 1974 through July 22, 1974, in which defendant and Garnica discussed prices and Garnica encouraged defendant to supply the cocaine.

Sometime before July 22, 1974defendant, apparently by getting in touch with some former fellow musicians whom defendant had known in prior years in Chicago, obtained an amount of cocaine.On July 22, 1974 Garnica telephoned defendant from the IBI office and asked if defendant had the cocaine, and arranged for a meeting to complete the transaction.Later that day Garnica and Del Principe left the IBI office and proceeded to a parking lot.Defendant thereafter drove into the parking lot and Del Principe and Garnica entered defendant's automobile.Garnica introduced Del Principe to the defendant and conversation about cocaine ensued.Defendant asked Del Principe if she would like to see the merchandise and handed her a plastic bag containing a light powder.After receiving the cocaine, Del Principe tendered $1,400 to defendant.Del Principe and Garnica indicated that after Garnica counted the cash, all $1,400 was given to defendant.Defendant testified, however, that Garnica retained some of the cash and handed the defendant only $1,200.

During the course of the trial and at the conference on Jury instructions, defendant tendered IPI InstructionNo. 3.17 regarding the integrity of accomplice witness testimony.The trial court upheld the State's objection to the instruction.The jury returned a verdict finding defendant guilty of unlawful delivery of a controlled substance.

At the sentencing hearing, it was established that the defendant is now approximately 35 years of age and has been in this country since he was 14.Since 1964, defendant has worked continuously at John Deere in the Rock Island area.Defendant Is also part-owner, with members of his family, of a restaurant in Moline, and defendant worked at the restaurant.Defendant was married to his present wife in 1960, and the couple have two children.Defendant and his wife are purchasing a modest home in Rock Island.Defendant has no prior criminal record.The only weakness listed in the pre-sentence report was defendant's failure to use sound judgment when associating with peers.As we have noted the trial court sentenced the defendant to a term of not less than three nor more than nine years imprisonment.Defendant has been permitted to remain free on bond pending this appeal.

The first issue raised by defendant on this appeal is that the State did not prove beyond a reasonable doubt that defendant was not entrapped.We note, preliminarily, that defendant did not mention the entrapment issue in his post-trial motion.As this court held in People v. Guynn(3d Dist.1975), 33 Ill.App.3d 736, 737, 338 N.E.2d 239, 240:

'It is clear that error must be preserved either by objection at the proper time, or by filing of a post-trial motion(People v. Long(1968), 39 Ill.2d 40, 43, 233 N.E.2d 389) and that if a post-trial motion is filed, any errors not set forth in the motion are deemed to be waived (People v. Pickett(1973), 54 Ill.2d 280, 296 N.E.2d 856).'

(Accord, People v. Carel(3d Dist.1976), 37 Ill.App.3d 952, 346 N.E.2d 186.)While this court is not required to consider the merits of defendant's contention on appeal, we have determined to consider defendant's argument.

In People v. Dollen(1972), 53 Ill.2d 280, 290 N.E.2d 879, the Illinois Supreme Court stated (at 53 Ill.2d at 283--284, 290 N.E.2d at 881):

'Entrapment is a valid affirmative defense if established by the evidence.(People v. Lewis, 26 Ill.2d 542, 545, 187 N.E.2d 700;People v. Outten, 13 Ill.2d 21, 24, 147 N.E.2d 284.)' (W)here it appears that officers of the law or their agents have conceived and planned a criminal offense and have incited, induced, instigated or lured the accused into committing an offense which he would not otherwise have committed and had no intention of committing, entrapment is established and no conviction may be had.(Citations omitted.)On the other hand, entrapment is not available as a defense to one who has the intent to commit the crime and does so merely because an officer of the law, for the purpose of securing evidence, affords such person the opportunity to commit a criminal act, or purposely aids and encourages him in its perpetration.'People v. Hall, 25 Ill.2d 297, 300, 185 N.E.2d 143, 145, Cert. denied, 374 U.S. 849, 83 S.Ct. 1912, 10 L.Ed.2d 1069;see alsoIll.Rev.Stat.1969, ch. 38, pars. 7--12.

"(T)he State must be responsible for the actions of their informer * * * when the defense of entrapment is raised.'(People v. Strong, 21 Ill.2d 320, 326, 172 N.E.2d 765, 768.)In Strong, we held that a conviction for the unlawful sale of narcotics cannot stand when the informer supplies the drugs.(See alsoUnited States v. Bueno(5th Cir.1971), 447 F.2d 903.)If defendant presents some evidence to raise the issue of entrapment, 'the State must sustain the burden of proving the defendant guilty beyond a reasonable doubt as to that issue together with all the other elements of the offense.'

Ill.Rev.Stat.1969, ch. 38, par. 3--2(b).'

We note that in the instant case, where defendant was tried by a jury, defendant was found guilty in spite of his assertion of the entrapment defense.As has been noted in the Appellate Court in People v. Gulley(5th Dist.1976), 36 Ill.App.3d 577, 582, 344 N.E.2d 567, 572:

'* * * whether entrapment exists is...