People v. Alexander

619 N.E.2d 863, 250 Ill. App. 3d 68, 189 Ill. Dec. 162, 1993 Ill. App. LEXIS 1337
Appellate Court of Illinois·Decided September 2, 1993·No. No. 2-92-0501·Published·Cited by 6 cases

Opinion

JUSTICE COLWELL

delivered the opinion of the court:

A jury found defendant, Elmer Alexander, guilty of one count of the unlawful delivery of at least 15 grams but less than 100 grams of a substance containing cocaine, a controlled substance. (Ill. Rev. Stat. 1991, ch. 56V2, par. 1401(a)(2)(A) (now 720 ILCS 570/401(a)(2)(A) (West 1992)).) After entering a judgment on the verdict, the court denied defendant’s post-trial motion and sentenced him to eight years’ imprisonment. On appeal, defendant argues he is entitled to a new trial because the court erroneously refused to instruct the jury on the defense of entrapment. See Ill. Rev. Stat. 1991, ch. 38, par. 7 — 12 (now 720 ILCS 5/7 — 12 (West 1992)); see also Illinois Pattern Jury Instructions, Criminal, Nos. 24 — 25.04, 24 — 25.04A (3d ed. 1992).

We hold that the evidence entitled defendant to raise the entrapment defense. We reverse and remand for a new trial.

On January 24, 1991, defendant procured a substance containing cocaine and delivered it to undercover police officer Mark Fritz, who was posing as the brother-in-law of Dennis Tennin. Tennin, a friend of defendant, was a confidential informant who introduced defendant to Fritz on January 18, 1991, at which time defendant also delivered cocaine to Fritz. Defendant was indicted for the January 24, 1991, transaction. His first trial ended in a mistrial and he was retried.

Mark Fritz was the State’s principal witness. In January 1991, he was working undercover for the State Line Area Narcotics Team (SLANT) in Rockford. He was assigned to purchase drugs from defendant, who he knew was Tennin’s long-time friend. Tennin also told him defendant was a dealer for Carrie Woods, a leading Rockford cocaine supplier. Defendant’s acquaintance with Woods was the main ■ reason SLANT pursued defendant.

On January 18, 1991, Tennin (for a $100 fee from SLANT) introduced Fritz to defendant, who was known as “Bader,” at defendant’s home at 512 Hill Street in Rockford. At trial, Fritz did not recall whether Tennin had telephoned defendant earlier that day to set up the meeting. Tennin told defendant that the officer was Tennin’s brother-in-law from Sterling and that Fritz wanted defendant to supply him with cocaine. Defendant told Fritz that he could obtain all the cocaine Fritz wanted, and he quoted some prices to Fritz. Fritz told defendant he wanted a quarter-ounce of cocaine; defendant insisted on a price of $400. Fritz gave defendant $350 and told him to get what he could. Defendant did not hesitate in agreeing to buy drugs for Fritz.

Defendant and Fritz got into Fritz’s car. At defendant’s direction, Fritz drove to 724 Concord Avenue. Fritz knew this was rumored to be Carrie Woods’ drug house. Defendant entered the house and returned with a package of cocaine. When Fritz remarked that the package was heat-sealed, defendant replied that this packaging was the trademark of “Seal-a-meal.” After the transaction, Fritz said he would like defendant to obtain larger amounts (a half-ounce or an ounce) for him in the near future. Defendant quoted prices for these amounts, which are amounts purchased by dealers rather than by mere users. Defendant said they could set up a deal with Tennin’s assistance.

Fritz next met defendant at defendant’s house at about 11:18 a.m. on January 24, 1991. Fritz had paid Tennin $150 to call defendant earlier that day to arrange the meeting. Tennin called defendant at least once that morning before Fritz showed up. After Tennin told Fritz that defendant was willing to deal, Fritz went alone to defendant’s house. Fritz explained that he did not bring Tennin along because Tennin had “ripped [him] off” earlier. Fritz told defendant he wanted to buy an ounce of cocaine. Defendant said it would cost $1,400; he refused to negotiate a lower price. As on January 18, defendant expressed no reluctance to deal, and he was sure that he could procure the requested amount of cocaine.

After they agreed on the price, defendant and Fritz went to Fritz’s car. Fritz told defendant he would like to work directly with defendant, and he asked defendant how they could get in touch when needed. Without hesitation, defendant told Fritz that he would give Fritz his telephone number. Defendant wrote down the number on a napkin Fritz supplied.

Defendant told Fritz he would take him to one of defendant’s suppliers. At defendant’s direction, Fritz drove to Blake Street. Defendant said he would get cocaine from a “Mexican.” Defendant soon returned and said the Mexican was not around. He offered to take Fritz to another dealer known as “Seal-a-meal.”

At defendant’s direction, Fritz drove to 724 Concord Avenue. Noticing there were no vehicles in the driveway, defendant instructed Fritz to drive to a white building about two blocks north of 724 Concord. Defendant entered the building and returned. He said that the people there had only three “eight-balls” (or eighth-ounces of cocaine). Fritz wanted an ounce. Defendant directed him to Oakwood Avenue, where a relative of Seal-a-meal lived. However, defendant could not get cocaine at this address; so at defendant’s direction, Fritz drove back to 724 Concord to see if Seal-a-meal had returned.

As the car approached the intersection of Albert Avenue and West State Street, defendant spotted a young woman whom he identified as another relative of Seal-a-meal. Fritz pulled over at defendant’s request. Defendant and the woman spoke briefly, then went to a residence at 115 Albert. When he returned to Fritz’s car, defendant said that the woman had no cocaine to sell. Fritz recognized the woman as Ellen Woods, a relative of Carrie Woods. Defendant directed Fritz back to Seal-a-meal’s house at 724 Concord. When they arrived, the parking lot was crowded. Defendant said the place was “in business.”

Fritz parked a block away as defendant entered the residence. Fritz soon drove up to get defendant, who, upon exiting the house, told Fritz that in 10 minutes their supplier would provide them with 15 packets of cocaine. At defendant’s instruction, Fritz drove to a nearby convenience store and soon returned to 724 Concord. At about 12:25 p.m., defendant entered the house and returned with the promised cocaine, which was in 15 individually sealed packets on a strip of plastic. Defendant then asked Fritz to drop him off at a house on Blake Street. Defendant had not tried to back out of the deal at any time.

As he let defendant out at Blake Street, Fritz told defendant he was not happy with having to drive around for an hour to find cocaine. He said he would like to expedite the procedure the next time. Defendant told Fritz to call a day ahead next time and there would be less delay.

Fritz testified that defendant never initiated a drug deal with him. Defendant never sold any cocaine from his own house. Both deals with Fritz were arranged via Tennin on Fritz’s initiative. Defendant made no money from these deals.

Charles O’Brien, one of the SLANT agents who provided surveillance for both deals, corroborated Fritz’s testimony about the sequence of events on January 24, 1991. After defendant left Fritz, the officers went to headquarters, where Fritz showed O’Brien the 15 packets of cocaine he had received from defendant.

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People v. Alexander, 619 N.E.2d 863, 250 Ill. App. 3d 68, 189 Ill. Dec. 162, 1993 Ill. App. LEXIS 1337 (Ill. Ct. App. 1993).

619 N.E.2d 863 (People v. Alexander) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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