People v. Wielgos

581 N.E.2d 298, 220 Ill. App. 3d 812, 163 Ill. Dec. 347, 1991 Ill. App. LEXIS 1739
CourtAppellate Court of Illinois
DecidedOctober 9, 1991
Docket1-87-3688
StatusPublished
Cited by15 cases

This text of 581 N.E.2d 298 (People v. Wielgos) 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. Wielgos, 581 N.E.2d 298, 220 Ill. App. 3d 812, 163 Ill. Dec. 347, 1991 Ill. App. LEXIS 1739 (Ill. Ct. App. 1991).

Opinion

JUSTICE GREIMAN

delivered the opinion of the court:

Following a jury trial, defendant, Stephen Wielgos, was convicted of delivering more than 30 grams of a controlled substance (Ill. Rev. Stat. 1985, ch. 56½, par. 1401(a)(2)) and was sentenced to six years in prison.

This cause now comes before us on remand from the supreme court (People v. Wielgos (1991), 142 Ill. 2d 133, 568 N.E.2d 861) to consider issues presented by defendant which this court did not reach in our previous decision on this matter (People v. Wielgos (1989), 190 Ill. App. 3d 63, 545 N.E.2d 1031). Defendant contends that a new trial is required on the grounds that: (1) the State violated the discovery rules by failing to tender certain oral statements made by defendant during his arrest; and (2) numerous alleged instances of prosecutorial misconduct constitute reversible error.

For the reasons which follow, we affirm the judgment of the circuit court.

The facts need not be fully repeated here since they are detailed in both the decision of the supreme court (Wielgos, 142 Ill. 2d 133, 568 N.E.2d 861) and the prior opinion of this court (Wielgos, 190 Ill. App. 3d 63, 545 N.E.2d 1031). In short, defendant admitted that he delivered four ounces of cocaine to an undercover police officer but asserted the defense of entrapment. Over a span of several weeks, Edward Ruschinski, a codefendant, negotiated to sell cocaine to Eric Bjankini, an undercover police agent who used the alias identity of “Steve Hilton.” Ruschinski then turned to defendant to locate a source for the drugs. After repeated refusals to become involved in a drug transaction, defendant finally agreed to obtain the cocaine from his friend Tony Creagh.

Thereafter, while under surveillance by police officers, defendant procured the cocaine through Creagh and delivery took place in defendant’s home with Bjankini, Ruschinski, and defendant present. After Officer Bjankini left defendant’s house, the police officers converged upon his home and arrested Ruschinski and defendant.

The trial court instructed the jury on the defense of entrapment but omitted language in the instruction which would recognize the defense of "vicarious entrapment, i.e., entrapment by an agent of a pub-lie officer. The jury found defendant guilty and thereby implicitly rejected his entrapment defense.

On appeal, this court found that the statute codifying the defense of entrapment (Ill. Rev. Stat. 1983, ch. 38, par. 7—12) allows the defense of vicarious entrapment. Accordingly, we concluded that the omission of the vicarious entrapment language from the jury instruction was reversible error. Wielgos, 190 Ill. App. 3d 63, 545 N.E.2d 1031.

The Illinois Supreme Court reversed and held that defendant was not entitled to a jury instruction on entrapment by an agent of a government officer because the evidence did not show that Ruschinski, the alleged agent of a government officer (i.e., Bjankini), acted for the purpose of obtaining evidence to lead to the prosecution of defendant. (Wielgos, 142 Ill. 2d 133, 568 N.E.2d 861.) Thus, the supreme court held that the trial court had properly refused to instruct the jury on entrapment by an agent. The supreme court then remanded the cause for consideration of the issues which were raised but not reached in defendant’s appeal to this court.

We initially address defendant’s contention that the State violated discovery rules by failing to tender, in discovery, statements that were made by defendant following his arrest and that were admitted into evidence during the testimony of a State witness, Officer Rafael Tovar. We find no reversible error with respect to the discovery rule regarding disclosure of oral statements.

Defendant is entitled to receive a summary of the oral statements which he made. Supreme Court Rule 412 provides that “the State shall *** disclose to defense counsel *** any written or recorded statements and the substance of any oral statements made by the accused.” (134 Ill. 2d R. 412(a)(ii).) This rule does not require that the prosecution reduce the substance of an oral statement to any kind of memoranda or form prior to presenting a witness to the statement. People v. Marek (1980), 92 Ill. App. 3d 746, 763, 415 N.E.2d 1230.

Officer Tovar was one of the agents involved in the arrest of defendant. The record reveals, and defendant does not dispute, that a copy of Tovar’s police report was tendered to defense counsel. Moreover, defense counsel interviewed Tovar before he testified.

Defendant now challenges the testimony of Tovar which relates to their conversation concerning how to care for defendant’s two-year-old daughter, who was present at the time of the arrest. Defendant was separated from his wife, had custody of their daughter and was living in his mother’s house. After asking defendant if there was someone in the area who could care for the child so she would not have to go to the police station, Tovar testified to the following conversation:

“He [defendant] said that there was no one at the house. His mother wouldn’t be home until later. I asked him if any of the neighbors could care for the child, because as he was aware, he was going to have to go with us. He said no. That he didn’t get along with any of the neighbors. So, I asked him about his — the child’s mother. He stated he’d rather not call her. *** He finally agreed to give me his wife’s phone number.”

Defendant objected to this testimony because Tovar’s police report did not include information that defendant did not get along with his neighbors or that he did not want his estranged wife to take their daughter.

Our review of Tovar’s police report and testimony leads us to conclude that the trial court properly denied defendant’s motion for a mistrial because Tovar’s report included substantially the same kind of information as his testimony. The report states in part that after defendant was placed under arrest, “Wielgos’s two (2) year old daughter was found outside the house, unattended and was then handed over to Wielgos[’] estranged wife as there was no one else at the house.” The discovery rule does not mandate a verbatim transcription of each oral statement uttered by defendant, but rather provides for disclosure of the substance of the oral statements.

The report clearly deals with the custodial disposition of defendant’s child. The statement that defendant was unenthusiastic about calling the child’s mother is reasonable on the part of defendant and not in any way prejudicial.

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Cite This Page — Counsel Stack

Bluebook (online)
581 N.E.2d 298, 220 Ill. App. 3d 812, 163 Ill. Dec. 347, 1991 Ill. App. LEXIS 1739, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-wielgos-illappct-1991.