People v. Milton

570 N.E.2d 865, 211 Ill. App. 3d 1006, 156 Ill. Dec. 389, 1991 Ill. App. LEXIS 488
CourtAppellate Court of Illinois
DecidedMarch 28, 1991
DocketNo. 1—88—2290
StatusPublished
Cited by1 cases

This text of 570 N.E.2d 865 (People v. Milton) 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. Milton, 570 N.E.2d 865, 211 Ill. App. 3d 1006, 156 Ill. Dec. 389, 1991 Ill. App. LEXIS 488 (Ill. Ct. App. 1991).

Opinion

JUSTICE DiVITO

delivered the opinion of the court:

A jury found defendant Darrell Milton guilty of delivery of more than 1 but less than 15 grams of a controlled substance. (Ill. Rev. Stat. 1987, ch. 56½, par. 1401(b).) He was sentenced to 8½ years in prison concurrent with an identical term for another delivery of controlled substances charge to which he pleaded guilty. He was also fined $11,500. Defendant appeals from the jury conviction, presenting the following issues: (1) whether the trial court erred in requiring defendant to submit an affidavit to establish an entrapment defense in support of his motion to produce information about the police informant; (2) whether defense counsel’s failure to object to the State’s use of the affidavit for impeachment purposes constituted ineffective assistance of counsel; and (3) whether the State’s closing argument improperly shifted the burden of proof to defendant.

At trial, Willie Davis, a special agent with the Illinois Department of State Police, testified on behalf of the State. On March 12, 1987, Anthony McDuff, who had been introduced to Davis by another police officer, introduced Davis to defendant in a trailer. McDuff informed defendant that Davis was the person who “wanted to purchase the cocaine.” Defendant asked how much Davis wanted and was told one-sixteenth of an ounce. As defendant pulled a clear plastic bag from his pants pocket, someone pulled up in a car and sounded the horn. Defendant put the plastic bag back into his pants pocket, left the trailer, entered the car, and sat in the passenger seat. Davis saw defendant give the plastic bag in his pants pocket to the person in the car, take money from him, exit the vehicle, and return to the trailer.

Inside the trailer, defendant reached into his coat and retrieved another clear plastic bag containing a white powdery substance. Defendant measured the cocaine, gave Davis the amount he had requested, and took $150 from him. At the end of the transaction, defendant and Davis discussed the possibility of a five-ounce-cocaine transaction and defendant gave Davis a piece of paper containing defendant’s pager number. Defendant was never charged with this March 12 transaction.

When Davis contacted defendant through defendant’s pager, they arranged to meet for another cocaine transaction on March 24, 1987. Davis met defendant at a Shell gas station located at 87th and State Streets at approximately 3:55 p.m. on March 24, 1987. Two other special agents acted as surveillance officers. Defendant approached Davis and informed him that he did not have the cocaine but that it would take him 20 minutes to get it. He told Davis to meet him at 98th and Halsted Streets.

After Davis arrived at that location, defendant entered his vehicle and requested that he park around the comer. When Davis did so, defendant handed him a clear plastic bag containing a white powdery substance, which was later determined to be seven grams of a substance containing cocaine. In return, Davis paid defendant $500. After the transaction, Davis drove defendant back to 98th and Halsted, dropped him off, and departed. This March 24 transaction was the charged offense in the jury trial.

When called as a rebuttal witness, Davis further testified that he contacted defendant again on March 26, 1987, and arranged a meeting to conduct another cocaine transaction. Davis met defendant on March 27, 1987, at 87th and Lafayette at approximately 7:15 p.m. and purchased eight ounces of cocaine from him for $11,600. This transaction constituted the offense to which defendant pleaded guilty.

Defendant testified on his own behalf that he was a track driver and tree trimmer for the City of Chicago. He stated that in 1985 he met Anthony McDuff, who worked for a tracking company, in 1985 through his job. During the latter part of 1986, defendant had an allergic reaction to trees which caused him to take a disability leave. He had been earning $10.40 per hour but did not receive any income from the city while on leave. Defendant applied for disability but only part of it was approved after he went back to work.

Defendant testified that he worked “odd jobs” during his leave and that his car was repossessed during that period. He decided that he would have to find either a better paying job or a second job. After he returned to work, he approached McDuff and asked him if his employer was hiring. McDuff stated that he was acquainted with an employee at Brown and Lambert, a construction company, and that he could ask that the employee assist in securing a job for defendant.

Defendant further testified that during several conversations with McDuff, McDuff requested that defendant introduce him to a “source” in order to obtain cocaine. Defendant initially refused. McDuff repeatedly brought up the subject, and defendant usually responded “I’ll see if I can find somebody.” During one of the conversations, McDuff stated that if defendant really wanted the job he would first have to find a “source.” On March 12, 1987, McDuff called defendant and asked whether defendant had found a source; defendant replied that he had.

Defendant admitted that he in fact met Davis on March 12 and sold him cocaine. Defendant stated that Davis’ testimony at trial was essentially true, except that the reason he exited the trailer on March 12 was to return the excess amount of cocaine to his source. He did this because Davis asked for less cocaine than he expected. He denied accepting any money from that person. Defendant further testified that he received a call from Davis on March 20 to arrange another cocaine transaction but that he never initiated any of the calls except when he returned Davis’ calls. Defendant also admitted selling cocaine to Officer Davis on March 24 and March 27, 1987, but stated that he was merely acting as a “middle man.”

On cross-examination, defendant testified that, when he returned to work after his disability leave, he was earning approximately $25,000 per year and that he was living with his mother. The assistant State’s Attorney impeached defendant by using defendant’s signed affidavit which provided in paragraph 12 that the “affiant was tempted by the possibility of additional income offered by McDuff.” Defense counsel’s objection on the grounds that this was not impeaching was overruled; however, there was no specific objection to the State’s use of the affidavit.

Defendant further testified that in all the cocaine transactions he merely acted as a middle man. He stated, however, that McDuff neither coerced him to sell cocaine nor threatened him. Moreover, defendant never saw or spoke to McDuff after the initial drug transaction with Davis.

Michael Turpeau testified for the defense. He was defendant’s coworker and also knew McDuff through his job. He stated that, during late 1986 and early 1987, McDuff continually pestered him to find someone who would sell him cocaine. Turpeau refused each of McDuff’s requests.

Carl Bodnar testified on behalf of defendant that he and McDuff had stolen cars together and had been arrested on January 9, 1986. Bodnar stated that they both pleaded guilty and that he was sentenced to eight years’ imprisonment while defendant was sentenced to five. Bodnar went to prison but never saw McDuff there.

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Related

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625 N.E.2d 1133 (Appellate Court of Illinois, 1993)

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Bluebook (online)
570 N.E.2d 865, 211 Ill. App. 3d 1006, 156 Ill. Dec. 389, 1991 Ill. App. LEXIS 488, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-milton-illappct-1991.