People v. Washington
| Decision Date | 22 March 1967 |
| Docket Number | Gen. No. 50906 |
| Citation | 225 N.E.2d 673,81 Ill.App.2d 162 |
| Parties | PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Capon WASHINGTON, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
Daniel P. Ward, State's Atty., Chicago, for plaintiff-appellee, Elmer C. Kissane James B. Zagel, Asst. State's Attys., of counsel.
CRIME CHARGED
Unlawful sale of a narcotic drug.
JUDGMENTAfter a bench trial, defendant was found guilty and sentenced to a term of ten years (the statutory minimum) to ten years and one day.
(1) Entrapment.
(2) The State failed to prove that the substance sold was a narcotic.
(3) The trial court committed reversible error in not requiring a State witness to exhibit her arm during cross-examination on the question of her freedom from addiction.
(4) The court erred in refusing to exclude from the courtroom, on defendant's motion, the police officer in charge of the case, who testified on behalf of the State.
Barbara Lumpkin, for the State.
At approximately 2:30 A.M. on September 23, 1964, she met police officer Pates at 47th and Evans Streets, Chicago. After agreeing to Pates' request that she 'make a buy,' she was taken to a lockup where she was searched, found to have no narcotics on her person, and given some marked and pre-recorded money for which she signed a receipt. Pates then drove her to 43rd and Vincennes Streets where she contacted defendant at his cab stand. She asked defendant if she could 'make a buy' and he acquiesced. There followed the exchange of money passing to defendant and a package passing to her. Upon her request, defendant then drove her to 45th and Woodlawn where the two parted company. At that location she met Officer Pates and gave him the package which defendant had given to her. She then accompanied Pates as he followed defendant's cab to the latter's house at 43rd and Langley where the arrest was subsequently made.
She had formerly been a user of narcotics but had not taken a 'shot' in six or seven months. She had known defendant for several years but had not talked to him for a day or more prior to the transaction in question.
Henry Pates, for the State.
He was a police officer assigned to the narcotics section of the Chicago Police Department. He met Barbara Lumpkin at 2:30 A.M. on September 23, 1964. As a result of the conversation they had at that time, Miss Lumpkin accompanied him to the Women's Lockup where she was searched by the matron. He then gave her $50 in pre-recorded and fluorescent-coated five dollar bills, and drove her to defendant's cab stand where she got out of the car. She had a conversation with defendant, and Pates then saw her hand something to defendant and he handed something to her. She got into defendant's cab and he drove, followed by Pates, to 45th and Woodlawn. There, she was let out of defendant's cab and returned to Pates' car where she handed him five tin foil packages of white powder. He made a field test of the powder which indicated the presence of heroin. Pates, with Miss Lumpkin, followed defendant to his house at 43rd and Langley where, after a wait of about ten minutes, Pates knocked on defendant's door, announced his office, and made the arrest. Defendant's hands showed traces of powder when Pates shone his fluorescent light upon them. A search of the room revealed thirty dollars of the pre-recorded and marked money. Defendant told Pates at the time of the arrest that 'he was selling narcotics because he was trying to buy a new cab.'
Miss Lumpkin was a narcotics addict and a paid police informer. Pates customarily gave her money from time to time, and had given her money for her service in regard to the offense charged here.
Capon Washington, defendant.
In the two-month period preceding the day of the offense, he had been seeing Miss Lumpkin socially three or four times a week. He met her at about 11:00 P.M. on September 22, 1964, in response to her call. She was in a sweat and 'looked frantic.' She said she needed some dope. At first he refused to help, but upon recognizing how ill she was, he agreed to aid her. He went to 47th Street where a dope addict referred him to a man known as Billy Williams. Williams sold defendant a 'package' for thirty dollars, and defendant returned to Miss Lumpkin and presented her with the package. He then drove to her requested destination and she got out of the cab. At that time she gave him thirty dollars. He went back to the cab stand until 3:30 or 4:00 o'clock, got tired and went to his home. He undressed and relaxed for about an hour when Officer Pates appeared at his door.
Defendant denied his guilt and further denied making a statement to Pates that he was selling narcotics to earn money for a new cab.
OPINION(1) Defendant contends that the evidence established the defense of entrapment as a matter of law, relying principally upon Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848, and Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413. Entrapment was clearly recognized as a defense in Sorrells, where the Court stated that for entrapment to exist, the idea of the offense must have originated in the mind of a government agent without whose trickery, persuasion, or fraud the defendant would not have committed the offense. In Sherman, the opinion of the Court reaffirmed the theory of Sorrells to the effect that the function of law enforcement 'does not include the manufacturing of crime.' The Court raised a caveat, however, when it said (at page 372, 78 S.Ct. at page 821) that, '(t)o determine whether entrapment has been established, a line must be drawn between the trap for the unwary innocent and the trap for the unwary criminal.'
Four justices concurred in the Sherman result as expressed in the opinion of the Court, but considered that the Sorrells theory was unsound. Speaking through Mr. Justice Frankfurter, they were of the opinion that the nub of entrapment was whether the facts of the particular case revealed that police conduct had achieved a level which fell below the standards deemed proper in the exercise of governmental power, and that it was irrelevant to ask in whose mind the intention to commit the offense had been conceived. Defendant in the instant case contends that under either view espoused in Sherman, he was entrapped as a matter of law, but suggests that the Frankfurter view is the more enlightened approach. We are not at liberty to consider this latter view, however, since in Illinois our legislature has declared the public policy in this regard, defining entrapment as follows:
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. Ill.Rev.Stat. (1963), ch. 38, § 7-12.
This statute is but a codification of the majority principle found in Sherman, and in the illinois cases which have expressed the same reasoning. People v. Hatch, 49 Ill.App.2d 177, 182-183, 199 N.E.2d 81.
Defendant relies heavily on the Sherman case, arguing that the fact situation there is analogous to the facts before us. In Sherman a government informer and defendant first met at a doctor's office where both apparently were being treated to cure narcotics addiction. The men exchanged common experiences with each other and, eventually, the informer asked defendant if he was aware of a good source of narcotics. Defendant expressed a reluctance to aid the informer in obtaining the drugs. Only after repeated requests made by the informer on a number of different occasions did defendant agree to share his narcotics source with the informer. Defendant was then arrested, after several small sales of narcotics to the informer. In finding that the defense of entrapment had been established, the Court predicated its conclusion on the government informer's reprehensible preying on a narcotics addict who was attempting to rehabilitate himself, and on the fact that numerous requests on separate occasions were necessary to overcome defendant's reluctance to supply the narcotics.
In the case at bar there is a conflict in the evidence as to the lapse of time between the moment Miss Lumpkin asked defendant for the narcotics and her receipt of the contraband. According to her testimony, defendant responded to her request without hesitation, and there followed an immediate exchange of a 'package' for money. Defendant testified that '(a)t least an hour and a half' elapsed between the time he was asked for the narcotics and the time he was able to procure them for Miss Lumpkin. Even if we were to accept defendant's version of the facts as true, against the secretive background of the narcotics trade, a ninety-minute interval seems to us a sufficiently short period of time to demonstrate a ready willingness on defendant's part and easy access to unlawful narcotics. People v. Toler, 26 Ill.2d 100, 102, 185 N.E.2d 874, cert. den. 374 U.S. 813, 83 S.Ct. 1705, 10 L.Ed.2d 1036; People v. Gonzales, 25 Ill.2d 235, 239, 184 N.E.2d 833, cert. den. 372 U.S. 923, 83 S.Ct. 740, 9 L.Ed.2d 728. Accepting, then, the rule of the Sherman case as the applicable law in Illinois, we find it and other federal cases cited by defendant to be factually distinguishable from the instant case. Morales v. United States, 260 F.2d 939 (6th Cir., 1958); United States v. Landry, 257 F.2d 425 (7th Cir., 1958). It is also suggested by defendant that Miss Lumpkin's use of...
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