People v. Barnes

595 N.E.2d 40, 230 Ill. App. 3d 272, 171 Ill. Dec. 912, 1992 Ill. App. LEXIS 765
CourtAppellate Court of Illinois
DecidedMay 18, 1992
DocketNo. 1—88—2562
StatusPublished
Cited by3 cases

This text of 595 N.E.2d 40 (People v. Barnes) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Barnes, 595 N.E.2d 40, 230 Ill. App. 3d 272, 171 Ill. Dec. 912, 1992 Ill. App. LEXIS 765 (Ill. Ct. App. 1992).

Opinion

JUSTICE O’CONNOR

delivered the opinion of the court:

On November 25, 1986, defendant was arrested by law enforcement agents who were monitoring a narcotics transaction in which defendant delivered to Frank White, an acquaintance, one kilogram of cocaine. Defendant was later convicted of delivery of a controlled substance (Ill. Rev. Stat. 1985, ch. SG1/^, par. 1401(a)(2)) and was sentenced to 12 years’ imprisonment.

We affirm.

Defendant’s conviction was attained through the cooperation of White, a Federal felon, who had agreed to aid efforts by Federal Drug Enforcement Administration (DEA) and Federal Bureau of Investigation (FBI) agents in several narcotics-related investigations. White was released from prison to facilitate his cooperation but remained under custody of FBI agents.

Between November 15 and 25, 1986, White engaged in a series of telephone conversations with defendant which were recorded with the permission of the United States Attorney. At some time after November 20, 1986, but prior to defendant’s arrest, Federal prosecution of defendant’s case was declined, and the matter was referred to local law enforcement authorities.

The recorded telephone conversations, contained on nine audio cassette tapes, constituted a considerable portion of the State’s evidence against defendant. Defendant unsuccessfully sought to suppress those recordings prior to trial. He now contends the trial judge erred in admitting the tapes into evidence because no attempt was made to comply with the statutory proscription in Illinois against eavesdropping (Ill. Rev. Stat. 1985, ch. 38, par. 14 — 1 et seq.), a fact the State concedes.

WTiere, as here, the recorded conversations were obtained with the proper approval of Federal authorities pursuant to a Federal investigation, the relevant inquiry for purposes of using that evidence in a State prosecution is whether there was collusion between Federal and State authorities. (People v. Hodge (1991), 220 Ill. App. 3d 886, 581 N.E.2d 334, appeal denied (1992), 143 Ill. 2d 643, 587 N.E.2d 1020.) Absent collusion, such recordings properly may be admitted. People v. Manna (1981), 96 Ill. App. 3d 506, 421 N.E.2d 542.

FBI special agent Ross Rice detailed the circumstances giving rise to the creation of the recordings. Rice explained that White had been a target of FBI investigation since June 1985. Defendant’s name was known to the FBI as a result. At the time the decision was made to record the conversations, Rice had not discussed White’s cooperation with State or local law enforcement authorities. The investigation was entirely a Federal one. White had agreed to permit the FBI to intercept and record his conversations with defendant, and the FBI obtained the approval of the United States Attorney for that purpose.

Although the DEA presented the cases it was investigating to the United States Attorney, prosecution of defendant’s case was declined because the quantity of cocaine involved was believed to be only several ounces. Defendant’s case was then referred to local authorities.

Rice explained, Ray Lloyd, a member of the Tinley Park police department who was assigned to the Northeast Metropolitan Narcotics Enforcement Group, was then enlisted to pose as White’s financier in the transaction. As of that time, Rice’s role was limited to surveillance and to protecting White.

Rice stated that the “majority” of conversations between White and defendant were recorded prior to the time Federal prosecution in defendant’s case was declined. Rice explained the reasons for continuing the recording of White’s conversations with defendant after that time in the following manner:

“Well, again [Federal law enforcement authorities] were *** somewhat skeptical as to the sincerity of Mr. White’s desire to cooperate and we wanted to insure that we had complete control of him while he was out of [Federal custody] and again prior to his being sentenced. It was just *** the policy [that] the U.S. Attorney’s office came up with and wanted us to follow through with. They felt since we had already began [sic] recording certain conversations, or in this case numerous conversations, that we should continue to do so.”

Ray Lloyd stated he was first advised of, and asked to participate in, the investigation on November 24, 1986, after Federal prosecution had been declined. He did not know White or defendant before that time and had not participated in any decision leading to White’s cooperation. Lloyd was even unaware White was wearing a transmitting device and was recording the conversations when he accompanied White during the transaction.

The above testimony indicates no collusion between Federal and State law enforcement authorities which would prevent the admission of the tape-recorded conversations. The recordings were made in furtherance of a Federal investigation. Although Federal authorities eventually referred the matter to local law enforcement authorities after Federal prosecution was declined, that cooperation does not constitute the type of collusion which should operate to bar the use of the recordings here. See Hodge, 220 Ill. App. 3d at 888-89.

Alternatively, defendant asserts that the tape recordings were admitted improperly as evidence because some of the conversations were incomplete and portions were inaudible.

No reason exists to conclude the audio tapes were inadmissible on that basis. Only minor portions of the recordings are inaudible and those instances are not so substantial as to render the recordings, as a whole, untrustworthy. People v. Rogers (1989), 187 Ill. App. 3d 126, 543 N.E.2d 300, appeal denied (1989), 128 Ill. 2d 670, 548 N.E.2d 1076. See also People v. Griffin (1992), 148 Ill. 2d 45 (trial judge is accorded wide discretion in imposing conditions upon the admissibility of taped evidence).

At trial, defendant asserted an entrapment defense (Ill. Rev. Stat. 1985, ch. 38, par. 7 — 12) and sought to establish that he played no active role in the sale. When a defendant has presented evidence in furtherance of that defense, the State must prove guilt beyond a reasonable doubt as to the defense together with all other elements of the crime charged. (Ill. Rev. Stat. 1985, ch. 38, par. 7 — 12; People v. Gannon (1991), 213 Ill. App. 3d 560, 572 N.E.2d 1133.) The entrapment defense, however, is inapplicable where the defendant merely is afforded an opportunity or facility for committing the offense in furtherance of a criminal purpose originating with the defendant. (Ill. Rev. Stat. 1985, ch. 38, par. 7 — 12; People v. Gannon, 213 Ill. App. 3d 560, 572 N.E.2d 1133.) The relevant inquiry is whether defendant has a predisposition to commit crime. People v. Gannon, 213 Ill. App. 3d 560, 572 N.E.2d 1133.

Defendant testified White first contacted him by telephone in June 1986, seeking his assistance in a transaction to sell cocaine.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

People v. Coleman
882 N.E.2d 1025 (Illinois Supreme Court, 2008)
Davis v. Kansas Department of Revenue
843 P.2d 260 (Supreme Court of Kansas, 1992)

Cite This Page — Counsel Stack

Bluebook (online)
595 N.E.2d 40, 230 Ill. App. 3d 272, 171 Ill. Dec. 912, 1992 Ill. App. LEXIS 765, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-barnes-illappct-1992.