People v. Dow

608 N.E.2d 259, 240 Ill. App. 3d 392, 181 Ill. Dec. 186, 1992 Ill. App. LEXIS 2053
CourtAppellate Court of Illinois
DecidedDecember 21, 1992
Docket1-90-1277
StatusPublished
Cited by21 cases

This text of 608 N.E.2d 259 (People v. Dow) 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. Dow, 608 N.E.2d 259, 240 Ill. App. 3d 392, 181 Ill. Dec. 186, 1992 Ill. App. LEXIS 2053 (Ill. Ct. App. 1992).

Opinion

JUSTICE O’CONNOR

delivered the opinion of the court:

Defendant James Dow was charged by indictment with three counts of delivery of a controlled substance (see Ill. Rev. Stat. 1989, ch. 56½, par. 1401). Following a jury trial at which defendant raised the defense of entrapment, defendant was found guilty of all three counts and sentenced to concurrent six-year terms in the Illinois Department of Corrections.

Defendant appeals his conviction and sentence alleging the following errors: (1) the trial court erred in failing to ask prospective jurors during voir dire: “Will you accept and promise to follow the law that in some circumstances excuses otherwise criminal behavior by an individual?”; (2) the State failed to rebut defendant’s entrapment defense by proof beyond a reasonable doubt; and (3) the trial court prejudiced defendant’s defense when it precluded him from testifying as to why he gave the drug money he received in the drug transactions to his supplier.

Prior to trial, the court read into the record the above voir dire question which defendant sought the court to ask of prospective jurors. In denying to ask defendant’s proposed question, the court reasoned that it was self-contradictory because excused conduct cannot be criminal and that it tended to indoctrinate the jury to defendant’s entrapment defense.

Detective Edward Peters of the Hoffman Estates police department testified for the State that after speaking with Detective Brad Hollister, he formulated a plan to meet defendant at a Mobile gas station in Hoffman Estates. Peters arrived there in an undercover vehicle at about 3 p.m. Surveillance vehicles and officers were also at the gas station. A red pick-up truck arrived shortly after Peters’ arrival, from which defendant exited. Defendant walked to Peters’ vehicle and asked Peters if his name was Mike, which Peters used as his undercover name. Peters replied in the affirmative, and defendant entered his vehicle.

Peters asked defendant if he had the cocaine, and defendant produced a clear plastic bag containing one gram. Peters handed defendant $90, which defendant inserted in his pocket. Defendant told Peters that if he needed any more, he had an ounce. Peters responded that he only had enough for a gram.

On January 23, 1989, Peters called defendant at about 5:40 p.m. and asked him if he could get an “eight-ball” or one-eighth ounce of cocaine. Defendant said he would have to make a call and that Peters should call him back. When Peters telephoned again at 5:55 p.m., defendant told him that it was set for the next day at 3 p.m. at the Mobile gas station and that “it was better stuff than the last time.”

On January 24, 1989, at 3 p.m., Peters went to the Mobile station in the same undercover vehicle. Defendant arrived in a Nissan. Defendant entered Peters’ vehicle and produced a bag containing one-eighth ounce of cocaine. Peters handed defendant $220, which defendant placed into his pocket. Peters then asked defendant how much cocaine he could get for $3,000. Defendant replied that “he would have to check and see.”

Peters called defendant on January 25, 1989. He again asked defendant how much cocaine he could get for $3,000. Defendant said he could get an ounce for $1,300. Peters accepted this price, and he and defendant agreed that Peters would call back to schedule a time and place. Peters called defendant again and the meeting was set for the next day at a Checker gas station in Barrington.

Peters went to the Checker gas station on January 26, 1989. Defendant arrived alone and told Peters that he would need the money in advance. Peters replied that this was unacceptable, and the meeting ended.

On February 9, 1989, Peters called defendant and asked him about the ounce. Defendant said he could supply one and told Peters to meet him that same day at an apartment complex in Hoffman Estates at 12:45 p.m. Peters went to the designated location, whereupon defendant arrived in a pick-up truck. Defendant entered Peters’ vehicle and asked to see the money, which Peters showed him. Defendant counted the money, thereafter giving Peters a bag containing 27.4 grams of cocaine. Peters activated his signal and the surveillance team arrested defendant. Peters stated that defendant never said that he did not want to sell any drugs to him.

Detective Brad Hollister testified that he was a detective for the Hoffman Estates police department in January 1989. Hollister was present at each of the three buys as part of the surveillance team. He testified that he saw defendant arrive and get into Peters’ car on each occasion.

Officer Brian Lucas of the Hoffman Estates police department testified that he too was part of the surveillance team on February 9, 1989. He saw defendant enter Peters’ car. When Peters activated the arrest signal, Lucas arrested defendant.

It was stipulated by the parties that the bag from the January 18 delivery contained one gram of cocaine; that the bag from the January 24 delivery contained 3.4 grams of cocaine; and that the bag from the February 9 delivery contained 27.4 grams of cocaine.

Defendant testified on his own behalf. In January 1989 he was 19 years old. Defendant admitted that he sold cocaine to Peters in 1989 on January 18, January 24 and February 9. Defendant sold the cocaine because he was hooked on it and thought it would be a good way to get some more cocaine. Defendant’s supplier was Mark Smith, a friend of his.

Peters called defendant and asked him if he could get him some cocaine. Defendant was hesitant at first but agreed because he thought he could “get some free coke out of it.”

Prior to January 18, 1989, defendant had never sold cocaine before. Defendant gave the money from the January 18 sale to Mark Smith. Smith had been supplying defendant with drugs. Smith was the one who drove defendant to the meeting places. Before the January 18 meeting, another meeting with Peters was scheduled, but defendant did not go because he had a “gut feeling about it.” Peters kept calling him, so he just sold the cocaine to get Peters off his back and to get some coke for himself.

Defendant admitted doing four to five grams of cocaine a week. A gram cost about $100. Defendant was earning about $300 to $350 a week at his job. Defendant was paying rent to his parents. Defendant never said to Peters that he did not want to sell drugs.

The jury found defendant guilty of all three delivery charges. Defendant was sentenced to three six-year terms, running concurrently. Defendant brings this appeal.

Defendant first contends on appeal that the trial court denied him a fair trial when it refused to ask prospective jurors the following question, read into the record as follows: “Will you accept and promise to follow the law that in some circumstances excuses otherwise criminal behavior by an individual?”

Supreme Court Rule 234 governs voir dire examination of prospective jurors:

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Bluebook (online)
608 N.E.2d 259, 240 Ill. App. 3d 392, 181 Ill. Dec. 186, 1992 Ill. App. LEXIS 2053, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-dow-illappct-1992.