People v. Woods

• Decision Date: 30 November 1990
• Docket Number: No. 69199,69199
• Citation: 139 Ill.2d 369,152 Ill.Dec. 110,565 N.E.2d 643
• Parties: , 152 Ill.Dec. 110 The PEOPLE of the State of Illinois, Appellant and Cross-Appellee, v. Gregory WOODS, Appellee and Cross-Appellant.
• Court: Illinois Supreme Court

Page 643

565 N.E.2d 643

139 Ill.2d 369, 152 Ill.Dec. 110

The PEOPLE of the State of Illinois, Appellant and Cross-Appellee, v. Gregory WOODS, Appellee and Cross-Appellant.

No. 69199.

Supreme Court of Illinois.

Nov. 30, 1990.

Neil F. Hartigan, Atty. Gen., Springfield, and Edward A. Burmila, Jr., State's Atty., Joliet (Kenneth R. Boyle, John X. Breslin, and Gary F. Gnidovec, of Office of State's Attys. Appellate Prosecutor, Ottawa, of counsel), for People.

Robert Agostinelli, Deputy Defender, and Frank W. Ralph, Asst. Defender, of Office of State Appellate Defender, Ottawa, for appellee and cross-appellant.

Justice STAMOS delivered the opinion of the court:

Following a jury trial in the circuit court of Will County, defendant, Gregory Woods, was convicted on two counts of unlawful delivery of a controlled substance and one count of armed violence (based on one of the unlawful-delivery counts). (Ill.Rev.Stat.1985, ch. 38, par. 33A-2; ch. 56 1/2, par. 1401(c).) Defendant was sentenced to a term of 14 years' imprisonment for armed violence and unlawful delivery, a concurrent term of 14 years' imprisonment for the other count of unlawful delivery, and a street-value-based fine for unlawful delivery.

Defendant appealed, and the appellate court, with one justice dissenting, reversed and remanded, holding that the trial court erred in denying defendant's motion to require State disclosure of an informant's name and address. (186 Ill.App.3d 488, 134 Ill.Dec. 740, 542 N.E.2d 1247.) We granted the State's petition for leave to appeal (107 Ill.2d R. 315(a)). In his brief as appellee, defendant seeks relief as cross-appellant (107 Ill.2d R. 318(a)). For the following reasons, we affirm the judgment of the appellate court.

FACTS

One week before trial, defendant moved that the State be required to disclose (1) the name and address of its informant and (2) the address of Jerry Stevenson, whom defendant alleged he had been unable to find and whose address defendant said he believed was within the State's knowledge. The informant had introduced defendant to an undercover police officer; according to defendant, the informant had encouraged him to sell drugs to the officer; and, after the hearing on his motion to require disclosure of the informant's identity, defendant swore in an affidavit and later testified at trial that the informant had supplied the drugs that defendant admitted selling to the officer.

Two days before trial, Stevenson, who defendant says was the informant, was served by a deputy sheriff with a defense subpoena at an address different from the one furnished to the sheriff by defendant. On the day of trial Stevenson failed to appear. Stevenson's refusal to appear had been presaged by statements made when, after being served with the subpoena, Stevenson visited defense counsel's office while defense counsel was absent. After leaving defense counsel's office, Stevenson then visited the State's Attorney's office, where he executed an affidavit at the prosecution's request, denying that he had been in Illinois when the unlawful deliveries charged against defendant occurred. The prosecutor assured the trial court that, when Stevenson visited the State's Attorney's office, Stevenson was cautioned to comply with the subpoena. Upon Stevenson's failure to appear, defendant moved for a body attachment and a continuance to obtain his attendance. The trial court denied the motion, though the court entered a rule to show cause why Stevenson should not be held in contempt.

The appellate court held that the informant's testimony would have been material to an entrapment defense by defendant and that the trial court erred in refusing to require disclosure of the informant's identity. The appellate court further held that, even though defendant himself had procured service of a subpoena on the acknowledged informant, the error was not harmless, because defendant was prejudiced by the trial court's refusal; defendant, rather than rely on an unavailing subpoena, could have moved for the State to produce the informant at trial if the State had been required to disclose the informant's identity. 186 Ill.App.3d at 491, 134 Ill.Dec. 740, 542 N.E.2d 1247.

The dissenting appellate court justice was of the opinion that no entrapment defense had been properly raised and that, in any event, defendant had not been prejudiced by failure to disclose the informant's identity, because defendant knew the informant's name, defendant had obtained service of a subpoena upon the informant, and the informant had visited defense counsel's office shortly before trial to deny knowledge of any of the transactions at issue. On similar grounds, the dissenting justice also maintained that defendant had not shown how a continuance would have aided him. 186 Ill.App.3d at 492-93, 134 Ill.Dec. 740, 542 N.E.2d 1247 (Barry, J., dissenting).

We shall refer to other facts of the trial court proceedings as they become relevant.

ANALYSIS

I

The State contends here that the appellate court erred in holding that the trial court incorrectly denied defendant's motion for disclosure of the informant's identity, because the basis for defendant's motion--as asserted entrapment defense--was too vague and uncertain. The State says that evidence at the hearing on the motion showed that the informant merely introduced defendant to the officer but did not participate in, witness, or play an important role in arranging the criminal transactions. The State adds that, at the hearing, defendant did not testify that the informant had supplied the drugs that defendant sold to the officer but that defendant so testified only later at trial.

In addition, the State says that evidence at trial showed that defendant was predisposed to sell drugs to the officer, which, if true, would vitiate an entrapment defense. In support of its predisposition argument, the State cites a 1981 conviction of defendant on a drug charge, asserts that defendant was familiar with drug terminology, and asserts that it was established at trial that, when defendant was arrested in the present cause and again when he was arrested on a subsequent charge of intimidation, cannabis was discovered on his person.

Defendant replies that at the hearing on his motion he actually raised an entrapment defense and spelled out the informant's role in it. Defendant acknowledges that the informant was not an actual participant in or witness to the unlawful delivery but asserts that the important point is the extent to which the informant facilitated and perhaps induced it.

The record on appeal discloses that at the hearing on his disclosure motion, held on the day before trial, the parties agreed that defendant no longer needed State disclosure of Stevenson's address, because Stevenson had now been served. However, defense counsel argued that it was necessary for the defense to know the State informant's name in order that the defense might call him as a witness, since the State did not intend to call him.

In response to questioning by the trial judge regarding the materiality of the informant's identity to an entrapment defense, counsel stated that the unlawful delivery was not made to the informant but that the informant's role was to introduce the undercover police officer to defendant. The prosecutor, agreeing that the informant had made the introduction, added that he was not sure whether a drug purchase was made during the introduction. Defense counsel then explained that under his theory of entrapment, defendant would not have delivered drugs unlawfully had the informant not introduced defendant to an undercover police officer and persuaded him to deliver the drugs shortly thereafter despite his expressed unwillingness to do so. The State responded that if anyone had pressured defendant to deliver drugs unlawfully, defendant would know such a person's identity without disclosure by the State of its informant's name. In reply to the trial judge's questions, the prosecutor said that the informant had introduced defendant to the police officer on an occasion prior to and separate from the unlawful delivery rather than contemporaneously with it, though defense counsel urged the trial court to view the separate occasions as connected by a thread of informant introduction and persuasion (cf., e.g., People v. Gaytan (1989), 186 Ill.App.3d 919, 925-26, 134 Ill.Dec. 656, 542 N.E.2d 1163; People v. Thornton (1984), 125 Ill.App.3d 316, 317-19, 80 Ill.Dec. 703, 465 N.E.2d 1049 (cases in which no sufficient showing of "thread" was made)). (We note that, later at trial, the undercover officer testified that when he was introduced to defendant by the informant, the informant broached to defendant the subject of selling drugs to the officer. The officer testified that, among other statements, the informant had told defendant that the informant was leaving town and was giving defendant the informant's customers, including the officer.)

After defense counsel's argument on his disclosure motion, the trial judge then said that he was going to deny the motion, adding that defense counsel could renew it because "I am not saying that we're going to decide this once and for all," but that "I can't see where the defendant's constitutional right to a fair trial and the scenario that you offer is prohibited by failure to disclose the name of the informant."

Defense counsel replied that because Stevenson (the witness whom he subpoenaed) had visited his office but refused to testify, he had no way of knowing whether Stevenson had been the informant, and the only way of determining this would be through the State's disclosure of its informant's identity. Counsel added that it was possible the defense would wish to call the informant as a witness in rebuttal of police testimony. The judge repeated that the motion was denied but that it could later be renewed in the event such rebuttal testimony should be needed. Def...