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People v. Criss, No. 1-97-0516

1st District, 24 September 1999

Sixth Division

JUSTICE ZWICK delivered the opinion of the court:

Defendant, Erin Criss, was charged by indictment with one count of delivery of a controlled substance. Defendant was tried by a jury and presented the defense of entrapment. The jury rejected this defense and found defendant guilty of the charged offense. Defendant was sentenced to a term of nine years' imprisonment. On appeal, defendant seeks reversal or a new trial and raises the following eight issues as grounds therefore: (1) whether the trial court erred in instructing the jury regarding the affirmative defense of entrapment, (2) whether the court improperly excluded evidence of defendant's lack of criminal experience, (3) whether defendant suffered prejudice by the admission of hearsay evidence of prior cocaine sales, (4) whether defendant was denied a fair trial by the admission of partially inaudible tapes without a limiting instruction, (5) whether defendant was denied a fair trial by the admission of transcripts of the tapes without a limiting instruction, (6) whether defendant was denied a fair trial and an impartial jury by the court's refusal of proposed voir dire question regarding the affirmative defense of entrapment, (7) whether defendant was deprived of a fair trial by improper closing argument by the prosecution, and (8) whether defendant was proved guilty beyond a reasonable doubt. We address only those issues which are necessary to our disposition of the case.

The record reflects that defendant was charged with delivery of more than 100 grams, but less than 400 grams, of cocaine. At trial, the prosecution introduced evidence that in 1992 and 1993, Chicago police officer Judith Martin was assigned to the Drug Enforcement Administration (DEA) conducting long-term narcotics investigations. In November 1992, Michelle Farrington contacted Agent Chuck Elliott at the DEA seeking to work as an informant. Martin and Elliott met with Farrington on December 23, 1992, at which time, Farrington was employed as a confidential informant for the DEA. Farrington signed a work agreement pledging to forgo the use, sale, or purchase of narcotics.

On January 4, 1993, Martin and Elliott met with Farrington and made plans to make a controlled purchase of narcotics from defendant. Elliott told Farrington the particulars of the planned transaction, including where and when it was to occur and how much money would be spent. The planned transaction consisted of the purchase of four ounces of cocaine on January 7, 1993, at approximately 3 p.m., at 1910 North Sheffield, which was the three-flat apartment building in which both defendant and Farrington lived.

On January 7, 1993, Elliott drove an unmarked vehicle to that address and parked in the alley behind the building. Martin was wearing a pager which contained a microphone and transmitter. Elliott conducted surveillance of the area around the building and was equipped to monitor and record the conversation between Martin and the defendant.

Martin went to the first-floor apartment, which was occupied by Farrington and her children. Shortly thereafter, defendant arrived, and Farrington introduced the two. Originally, the transaction was to occur in defendant's apartment, but she informed Martin that it could not take place in her apartment because someone was there. Defendant indicated that the sale would have to occur in Farrington's apartment. Defendant suggested that she collect the money, count it, and then take it upstairs to her apartment before bringing the drugs down to Farrington's apartment. Martin rejected this plan, stating that she feared being "ripped off," and suggested that defendant bring down a portion of the drugs, collect $1,000, and then bring down more of the narcotics and collect more money. Defendant agreed to this arrangement and left Farrington's apartment.

Approximately five minutes later, defendant returned to Farrington's apartment and handed Martin several papers concerning an equipment leasing business in which defendant was involved. Defendant then left the apartment again and went back upstairs. Approximately 20 minutes later, defendant returned and handed Martin a plastic bag filled with white powder. Martin gave defendant $1,000. Martin then left the apartment, and returned a short time later with another bundle. Martin gave defendant the remainder of the money. Defendant thereafter stated the last portion was in a large chunk and asked whether Martin wanted it broken up. Martin responded that the large chunk was fine, and defendant went upstairs. When she returned to the apartment for the last time, defendant handed Martin a plastic bag containing a large chunk of white substance. She also gave Martin some additional papers pertaining to her leasing business and her business card, on which she had written her pager number. Defendant and Martin then devised a plan by which Martin could use a certain code to page defendant.

During the course of the sale, Martin and defendant talked about different things, including children, pets, and defendant's leasing business. Martin also told defendant that the agreed-upon purchase price was too high, and that she could not pay this price in the future. Defendant responded that this was a "first-time only" price, and the next time it would be different.

After Martin left the apartment building, Elliott terminated his surveillance and turned off the recording device. He then met Martin in a prearranged location, where a field test was conducted on the substance obtained from defendant. The substance tested positive for cocaine, and Martin and Elliot returned to the DEA office where the evidence was inventoried along with two audio tape recordings of the transaction. Martin prepared a transcript of the audio tapes. The three plastic bags containing white powder were tested by a forensic chemist for the DEA. The results of those tests indicated that it contained 111.8 grams of 87% cocaine hydrochloride. Defendant was arrested on June 18, 1993.

According to Martin and Elliott, Farrington was paid for her participation in the case, however, her compensation was not dependent upon her ability to involve defendant in the narcotics transaction. She received ten separate payments from January 7, 1993, through March 29, 1994, totaling $8,500.

Defendant testified that she met Farrington in the hallway of their apartment building during September 1992. At that time, defendant was employed as the director of the Chicago Propfinders Handbook, which provides listings for items uses in films, conventions, and trade shows. She also had a second job, brokering commercial printing jobs. At that time, defendant had a cocaine habit and spent between $200 and $300 on cocaine each week and occasionally smoked marijuana. Farrington also smoked marijuana, and the two women had smoked marijuana together. Farrington frequently spoke of a friend for whom she had obtained drugs. During their conversations, Farrington asked for defendant's help in getting drugs. Farrington first made this request in November 1992, but defendant told her that she did not sell drugs and was only a user.

According to defendant, these conversations were recurring, and Farrington began to speak more specifically about defendant's supplier, Edwin Ayala. Farrington asked defendant whether she could get a large quantity of drugs, but defendant declined and referred her to Ayala, whom Farrington had met. Farrington told defendant that she had tried to page Ayala several time, but he had not responded, and she asked defendant to speak with Ayala. Defendant testified that Farrington asked her at least ten times to set up a drug sale, and she eventually agreed because she wanted Farrington to stop bothering her about it.

When defendant went to Farrington's apartment on January 7, 1993, a woman named Judy was already there. Defendant testified that it was Ayala's idea that she bring at least $1,000 at a time upstairs in exchange for the drugs. Defendant denied that she either mixed, cut, or weighed the drugs. She also denied that she chose the date, time, or place for the transaction or that she set the price for the sale.

According to defendant, although she participated in the sale, she did not receive compensation of any kind after it was completed. Defendant knew that Farrington was to receive two ounces of marijuana for helping set up the sale, and Farrington showed defendant the marijuana when the transaction was over. Defendant also testified that she and Martin discussed many things during the course of the transaction, and she gave Martin literature regarding her business as well as a business card, on which she had written her pager number. Defendant explained that she believed Martin was a business person who might use the information as a resource and that she gives her business card to everyone. Defendant testified that she had never sold any drugs prior to or after January 7, 1993.

Defendant testified that she did not want to be involved in the drug sale, but Ayala insisted that she participate. She admitted that she counted the money in Farrington's apartment, then went upstairs to her own apartment, and returned several times during the transaction. Defendant also acknowledged that she did not inform the police that the drug sale was to take place. After she was arrested, the police did not search her apartment.

Prior to trial, defendant filed a motion in limine, seeking to exclude the tape recordings of the conversations between Martin and defendant on January 7, 1993. The trial court denied defendant's pretrial motion as well as her request for a limiting instruction. During trial, the jury heard the two audio tapes and received copies of the tape transcriptions.

At the instruction conference, defense counsel requested that the jury receive the version of the Illinois Pattern Jury Instruction (IPI) on entrapment which existed at the time the offense was committed, rather than the amended version existing at the time of trial. The trial court refused this request and issued the current version of the entrapment instruction. The jury found defendant guilty, and the court imposed a sentence of nine years' imprisonment. Defendant now appeals.

We initially consider defendant's claim that she was not proven guilty beyond a reasonable doubt. Specifically, defendant asserts that the prosecution failed to present sufficient evidence to rebut evidence of the affirmative defense of entrapment. In addition, defendant contends that the State failed to adequately establish the chain of custody for the controlled substances tested by the forensic chemist.

In reviewing a claim by the defendant that he was convicted upon insufficient evidence, the court is obligated to determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Schott, 145 Ill. 2d 188, 203, 582 N.E.2d 690 (1991); People v. Young, 128 Ill. 2d 1, 49, 538 N.E.2d 453 (1989), quoting Jackson v. Virginia, 443 U.S. 307, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979). We find that even if the correct jury instruction had been given, a rational trier of fact could have found defendant guilty beyond a reasonable doubt.

Here, the jury heard evidence that originally the transaction was to take place in defendant's apartment, but she informed Martin that they could not consummate the deal there because someone was in her apartment. Defendant then indicated that the sale would have to occur in Farrington's apartment. Defendant suggested that she collect the money, count it, and then take it upstairs to her apartment before bringing the drugs down to Farrington's apartment. When Martin objected to this plan, defendant readily agreed to bring a portion of the drugs downstairs from her apartment, collect $1,000, and then bring down more narcotics and collect more money. The transaction occurred in this manner, with defendant leaving Farrington's apartment three different times and returning again with narcotics each time.

In addition, defendant offered to have the last portion, which consisted of a large chunk, broken up. Defendant also gave Martin some additional papers and her business card, on which she had written her pager number. Defendant and Martin then devised a plan by which Martin could use a certain code to page defendant so that defendant would know that it was Martin calling. When Martin complained that the purchase price was too high, defendant reassured her that it would be different later because the supplier would owe them. This evidence supports the argument that defendant was in control of the situation and directed the transaction. As such, the jury could have concluded that Farrington merely afforded defendant the opportunity to commit the offense which originated with the defendant. Based upon the foregoing, we hold that the jury could have found defendant's guilt beyond a reasonable doubt.

We also reject defendant's assertion that the State failed to adequately establish the chain of custody for the controlled substances tested by the forensic chemist. Both Martin and the forensic chemist identified the envelope containing the cocaine obtained from defendant. Their testimony regarding the custody of the envelope and its contents was sufficient to establish the chain of custody. In addition, we note that defendant did not challenge this evidence at trial.

We next address defendant's claim that the trial court erred in instructing the jury regarding the affirmative defense of entrapment. Specifically, defendant asserts that the trial court should have granted her request that the jury receive the version of the entrapment instruction which existed at the time the offense was committed.

The jury instruction on entrapment which existed in 1993 provided as follows:

"It is a defense to the charge made against the defendant that he was entrapped, that is, that for the purpose of obtaining evidence against the defendant, he was incited or induced by a [a public employee and/or agent of a public employee] to commit an offense.

However, the defendant was not entrapped if [a public employee and/or agent of a public employee] merely afforded to the defendant the opportunity or facility for committing an offense in furtherance of a criminal purpose which the defendant originated." (Emphasis added.) Illinois Pattern Jury Instructions, Criminal, No. 24-25.04 (3d ed. 1992) (hereinafter IPI, Criminal).

The language of this pattern jury instruction mirrored that of the entrapment statute which was in effect at the time of the offense. See 720 ILCS 5/7-12 (West 1992).

However, the legislature subsequently enacted Public Act 89-332 (Pub. Act 89-332, art. 5, eff. January 1, 1996), which amended the entrapment statute, and the IPI instruction was revised to conform with the statutory amendment. Accordingly, when defendant was tried for delivery of a controlled substance, the IPI instruction on entrapment provided as follows:

"It is a defense to the charge made against the defendant that he was entrapped, that is that for the purpose of obtaining evidence against the defendant, he was incited or induced by [a public employee and/or agent of a public employee] to commit an offense.

However, the defendant was not entrapped if he was predisposed to commit the offense and [a public employee and/or agent of a public employee] merely afforded to the defendant the opportunity or facility for committing an offense." (Emphasis added.) IPI, Criminal, No. 24-25.04 (3d ed. Supp. 1996).

Defendant argues that the issuance of the newer amended jury instruction was improper because it misstated the applicable law at the time of the offense and caused her to be convicted under an ex post facto law. We agree.

The ex post facto prohibition of the Illinois Constitution (Ill. Const. 1970, art. I,