People v. Bonner ( 2008 )

No. 2--06--1065
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Du Page County.
)
Plaintiff-Appellee, )
)
v. ) No. 05--CF--2955
)
WALTER J. BONNER, ) Honorable
) Kathryn E. Creswell,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE O'MALLEY delivered the opinion of the court:
Walter J. Bonner appeals from his convictions of three counts of unlawful delivery of a
controlled substance (720 ILCS 570/401(c)(2) (West 2004)). He argues that the State failed to prove
beyond a reasonable doubt that he was not entrapped when he entered into a course of transactions
with an undercover officer in exchange for sex from an informant. We determine as a matter of law
that Bonner was induced by the informant to sell drugs when he was not otherwise predisposed to
commit the crimes and that the effect of that inducement carried through the course of the
transactions. Accordingly, because Bonner was entrapped, we reverse.
I. BACKGROUND
On October, 27, 2005, Bonner was charged by indictment with four counts of unlawful
delivery of a controlled substance, arising out of his delivery of cocaine to an undercover police
officer on four occasions: August 31, September 9, September 16, and September 30, 2005. Bonner
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filed notice that he intended to assert an entrapment defense at trial. Before trial, the State dismissed
by nolle prosequi the August 31, 2005, charge.
The facts are largely undisputed. At trial, Officer Jason Arres, a Naperville police detective,
testified that he began investigating Bonner in August 2005. During the investigation, Arres used
the false name of Ryan. Arres obtained information about Bonner from an informant, Kara Vedros.
At that time, Vedros had at least two criminal cases pending in Du Page County, one for delivery of
cannabis and another for burglary. Arres did not know whether her bond was lowered in exchange
for assisting the police in other criminal cases, but an exhibit in the record shows that it was.
Arres testified that Vedros introduced Bonner to him on August 23, 2005. Arres told Bonner
that he wanted to buy $50 worth of crack cocaine, and the next day Bonner and Vedros met with
Arres and gave him a cereal box with crack cocaine in the bottom. Arres gave them $50. On August
29, 2005, Arres called Bonner and asked again for $50 worth of crack cocaine. Bonner said he
would get back to him, and approximately 12 minutes later he called Arres and said that he would
"hook that up." They arranged to meet at a Mobil gas station, where Bonner gave Arres a plastic
baggie of crack cocaine in exchange for $50. Bonner told Arres to "keep the business coming," that
the "stuff" would just keep getting better, and to call him.
On August 31, 2005, Arres called Bonner and asked for another $50 worth of crack cocaine.
Bonner said he would check on it and call back. Bonner later met Arres at the Mobil station and
gave him crack cocaine in exchange for $50.
On September 2, 2005, Arres obtained a court-authorized "eavesdrop order" and began
recording most of his conversations with Bonner. On September 9, 2005, Arres called Bonner and
asked for two $50 bags of crack cocaine. Bonner said he would call Arres back. He later did so and
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met Arres at the Mobil station, where Arres gave him $100. Arres complained that he wanted the
two "50s" packaged separately, and Bonner told Arres to separate them himself. Arres also
complained that the cocaine he bought on August 31 looked light. Bonner said his girlfriend had
packaged it. Later that night, Bonner called Arres and apologized because the drugs had a bad taste.
Bonner offered to refund the money, but Arres said that he would keep the drugs.
On September 13, 2005, Arres called Bonner and asked again for $50 worth of crack cocaine.
Arres called Bonner back, and Bonner said he would "get ahold of his guy" and call back. Bonner
met Arres at the Mobil station and gave him crack cocaine. Arres complained again that it seemed
a little light. Bonner said Arres could give him $45, but Arres had only a $50 bill, and he asked
Bonner to make it up to him next time.
On September 16, 2005, Arres called Bonner and left a message stating that he wanted $300
worth of crack cocaine. Bonner called back approximately five hours later and told Arres that he
could get only $150 worth, but that it was "good stuff" and that Arres would love it. They met at the
Mobil station and Bonner gave Arres a bag of cocaine and a bag of a leafy green substance that Arres
believed to be cannabis. Arres said that it did not look like $150 worth, and he and Bonner arranged
to make up the difference on a future date.
On September 30, 2005, Arres called and asked for powder cocaine. Bonner replied that it
would take some time to get powder cocaine but that crack cocaine was available. Bonner then
delivered $150 worth of crack cocaine to Arres. Tapes of the September 9, 13, 16, and 30, 2005,
transactions were played to the jury.
For his defense, Bonner presented evidence that his IQ was 73, which is at the borderline
level of intelligence and means that his verbal and nonverbal abilities are lower than most people's.
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Bonner did not finish high school, and he had a significant history of substance abuse. Bonner
testified that he was a drug addict and that in August 2005 he started smoking crack cocaine daily.
Bonner testified that he met Vedros in 2004 and that her mother was Bonner's "drinking
buddy." In June 2005, Vedros and her mother were evicted from their apartment and stayed with
Bonner. Sometime before August 2005, Vedros's mother left for drug rehabilitation, and, shortly
after, Vedros was arrested. Vedros was released from jail on August 13 or 14, 2005, and began
asking Bonner to sell cocaine. According to Bonner she asked him "constantly," and he turned her
down. However, at some point, Vedros offered to have sex with Bonner if he sold cocaine to her
or to one of her friends. On August 18 or 19, Bonner and Vedros had sex, and Vedros then
introduced Bonner to Arres. Bonner stated that he sold cocaine to Arres on August 24, 2005, but
indicated that Vedros may have performed most of that transaction. Vedros had sex with Bonner
that night. Vedros accompanied Bonner to the first two transactions with Arres but was not present
after that.
According to Bonner, he sold cocaine to Arres because of Vedros and because he was an
addict. Bonner testified that he got the drugs from someone else and that he kept for himself some
of the cocaine that he was supposed to give to Arres. Bonner never formally measured it, and he
figured that if Arres wanted it, he would take it, and "if he didn't, he didn't." Bonner gave Arres's
money to the people who provided him with the cocaine. Those people would then give him a small
amount of cocaine in exchange.
Bonner testified that he had not sold drugs in Naperville before he met Arres. However, the
State was allowed to introduce impeachment evidence showing that, in 2001, Bonner was convicted
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in Cook County of possession of a controlled substance with intent to deliver. The record shows that
Bonner was familiar with street terms for drugs and the sale of drugs.
The jury was instructed on entrapment and found Bonner guilty. Bonner moved for a new
trial, arguing that the State failed to negate entrapment beyond a reasonable doubt. The trial court
denied the motion and sentenced Bonner to 15 years in prison on each count, the terms to run
concurrently. Bonner appeals.
II. ANALYSIS
The sole issue on appeal is whether Bonner was entrapped. Bonner argues that, while acting
as a state agent, Vedros improperly induced him to sell cocaine to Arres and that he was not
predisposed to commit the crimes. The State argues that, while Vedros's actions may have affected
Bonner's decision to make the initial sale, which charge was dismissed, his predisposition was
apparent because he continued to sell cocaine to Arres even after Vedros was no longer involved.
Entrapment is a statutory defense. Section 7--12 of the Criminal Code of 1961 provides:
"A person is not guilty of an offense if his or her conduct is incited or induced by a
public officer or employee, or agent of either, for the purpose of obtaining evidence for the
prosecution of that person. However, this Section is inapplicable if the person was
pre-disposed to commit the offense and the public officer or employee, or agent of either,
merely affords to that person the opportunity or facility for committing an offense." 720
ILCS 5/7--12 (West 2004).
The "distinction between what may and may not be done by way of entrapment" was well put in
People v. Outten, 13 Ill. 2d 21, 24 (1958):
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"[O]fficers may afford opportunities or facilities for the commission of crime, and may use
artifice to catch those engaged in criminal ventures, but entrapment constitutes a valid
defense if the officers inspire, incite, persuade or lure the defendant to commit a crime which
he otherwise had no intention of perpetrating. [Citation.] The law frowns upon the
seduction of an otherwise innocent person into a criminal career but tolerates the use of
decoys and various other artifices to catch the criminal."
"Entrapment requires that a defendant show both that the State improperly induced him or
her to commit a crime and that he or she was not otherwise predisposed to commit the offense."
People v. Glenn, 363 Ill. App. 3d 170, 173 (2006), citing People v. Placek, 184 Ill. 2d 370, 380-81
(1998).
"A defendant who raises entrapment as an affirmative defense to a criminal charge
necessarily admits to committing the crime, albeit because of improper governmental inducement."
People v. Rivas, 302 Ill. App. 3d 421, 432 (1998). "Once a defendant presents some evidence,
however slight, to support an entrapment defense, the State bears the burden to rebut the entrapment
defense beyond a reasonable doubt." Rivas, 302 Ill. App. 3d at 432-33. "The question of entrapment
is usually one to be resolved by the trier of fact, and it will not be disturbed on review unless the
reviewing court finds that a defendant was entrapped as a matter of law." Rivas, 302 Ill. App. 3d at
433.
A. Inducement
There is no entrapment unless the government "incited or induced" the offense. 720 ILCS
5/7–12 (West 2004). Inducement does not lie where the government "merely affords to [the
defendant] the opportunity or facility for committing an offense" (720 ILCS 5/7–12 (West 2004)),
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which means that "entrapment does not exist as a matter of law merely because a government agent
initiates a relationship leading to a drug transaction." People v. Day, 279 Ill. App. 3d 606, 612
(1996). But the inducement prong is met when the course of criminal conduct for which the
defendant was convicted originated in the mind of a government agent who arbitrarily engaged in
a relationship with the defendant and purposely encouraged its growth. Day, 279 Ill. App. 3d at 612;
see also People v. Poulos, 196 Ill. App. 3d 653, 659-60 (1990).
Here, Vedros, acting as an agent of the police, did more than furnish Bonner an opportunity
for illegality. When Bonner initially refused to sell drugs, Vedros solicited him "constantly."
Defendant repeatedly refused. He agreed only after Vedros offered sexual favors, a tactic of known
efficacy. See People v. Estrada, 91 Ill. App. 3d 228, 234 (1980) (entrapment instruction was
necessary because evidence showed that defendant transacted in drugs at informant's suggestion after
she initiated a sexual relationship with him). Lesser efforts than these have been considered
inducement. See Day, 279 Ill. App. 3d at 612 (inducement found where defendant refused
informant's repeated requests to sell drugs and acquiesced only after he commenced a dating
relationship with informant); Poulos, 196 Ill. App. 3d at 656 (defendant initially rebuffed informant
but agreed to sell drugs after "15 to 20" solicitations); People v. Fisher, 74 Ill. App. 3d 330, 335
(1979) (the evidence "reveals that after numerous attempts by [the informant] to have the defendant
sell him amphetamines (all of which were resisted), an overwhelming desire to 'get rid' of [the
informant] and to have him stop bothering her compelled [the defendant] to commit the offense").
We find as a matter of law that the government induced Bonner to perform the drug transactions.
The next question is whether Bonner was predisposed to commit the crimes.
B. Predisposition
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Bonner argues that he was not predisposed to commit the crimes, because he adamantly
refused to sell drugs until Vedros offered him sex. He further argues that his continuing drug
transactions were so tainted by the initial inducement that he cannot be said to have been predisposed
to undertake those sales. The State, however, points to Bonner's past drug use and willingness to
continue to sell drugs to Arres, even after Vedros was not involved, as evidence that he was
predisposed to commit the crimes.
"Generally, predisposition is established by proof that the defendant was ready and willing
to commit the crime without persuasion and before his or her initial exposure to government agents."
People v. Criss, 307 Ill. App. 3d 888, 897 (1999).
"Several factors are relevant in assessing predisposition in drug cases, including the
following: (1) the defendant's initial reluctance or willingness to commit the crime; (2) the
defendant's familiarity with drugs; (3) the defendant's willingness to accommodate the needs
of drug users; (4) the defendant's willingness to profit from the offense; (5) the defendant's
current or prior drug use; (6) the defendant's participation in cutting or testing the drugs; and
(7) the defendant's ready access to a supply of drugs." Glenn, 363 Ill. App. 3d at 173, citing
Placek, 184 Ill. 2d at 381.
Courts have also considered (8) the defendant's engagement in a course of conduct involving similar
offenses; and (9) the defendant's subsequent activities. See Day, 279 Ill. App. 3d at 612; Poulos, 196
Ill. App. 3d at 661.
Applying these factors, we find as a matter of law that Bonner was not disposed to sell drugs
before Vedros became involved. Bonner was initially unwilling to transact in drugs and became
willing only after Vedros's repeated requests and her eventual initiation of a sexual relationship.
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When he did commence selling drugs to Arres, Bonner's role in the distribution scheme was limited.
He was not involved in the processing or packing of the drugs and was little more than a courier.
In that role, Bonner showed unmistakable savvy but also a lack of discipline and devotion to the
trade. He obviously knew the vocabulary of drug use and trafficking. He returned Arres's phone
calls quickly, offered a refund when Arres complained about the quality or quantity of the cocaine,
and promised Arres that the drugs would increase in quality if Arres continued buying. On one
occasion, however, Bonner delivered a $100 bag of cocaine to Arres even though Arres requested
two $50 bags, and Bonner refused to remedy the problem. Bonner showed indifference to Arres's
business in other ways as well. For instance, Bonner testified that he never formally measured the
quantities of drugs that his supplier provided for delivery to Arres. Bonner also stated that he even
kept for himself some of what his supplier provided for Arres. Bonner was cavalier toward the risk
inherent in these practices, stating that if Arres wanted the drugs, he would take them, and "if he
didn't, he didn't." There was no evidence that Bonner profited from the transactions other than by
taking some of the cocaine that was due Arres and receiving some from the supplier.
Although Bonner had an admitted history of drug use and addiction, and an older conviction
of possession with intent to deliver, there was no evidence that before Vedros became involved he
was engaged in a course of conduct of similar offenses or had any desire to become a drug dealer.
There was also no evidence that Bonner sold drugs to anyone else during or after the series of sales
to Arres.
Bonner was not a devoted drug dealer even after the inducement. We see no evidence that
he would have been willing and able to sell drugs without the pressure applied by Vedros. To the
extent that Bonner exhibited signs of a disposition to sell drugs, he did so only after he was induced
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by Vedros to begin the course of conduct. "[P]redisposition is necessarily determined by a
defendant's willingness to participate in criminal activity before his initial exposure to government
agents." (Emphasis in original.) People v. Connor, 176 Ill. App. 3d 900, 906 (1988); Poulos, 196
Ill. App. 3d at 662 (to rebut defense of entrapment, the State must do more than "establish that once
induced to commit the offense, defendant in fact committed the offense"). Thus, Vedros's activities
were crucial. See Connor, 176 Ill. App. 3d at 906. Further, "[t]here is no requirement that the
defendant demonstrate an attempt to withdraw once induced into committing the offense." Poulos,
196 Ill. App. 3d at 663. Bonner was not predisposed to sell cocaine before Vedros became involved.
Any later disposition Bonner exhibited was irrelevant. Finally, we note that the State did not call
Vedros as a witness to attempt to contradict any of Bonner's testimony--a factor that weighs against
the State. See Day, 279 Ill. App. 3d at 612.
We recognize that, though Bonner is claiming entrapment with respect to transactions that
occurred as late as September 30, 2005, he admitted that Vedros did not accompany him to any
transactions after August 29, 2005, and there is no evidence that Vedros had sex with Bonner after
August 24, 2005. The entrapment defense may, however, apply "where a defendant is prosecuted
for a transaction which occurs after a series of transactions." People v. Gaytan, 186 Ill. App. 3d 919,
925 (1989), citing Sherman v. United States, 356 U.S. 369, 374, 2 L. Ed. 2d 848, 852, 78 S. Ct. 819,
822 (1958). Where the later transaction "is not an independent act subsequent to the inducement,
but part of a course of conduct which was the product of the inducement," then the entrapment
defense will lie with respect to that transaction. Gaytan, 186 Ill. App. 3d at 925, citing Sherman, 356
U.S. at 374, 2 L. Ed. 2d at 852, 78 S. Ct. at 822.
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In Sherman, Kalchinian met the defendant, Sherman, in August 1951 at a doctor's office
where both were undergoing treatment for drug addiction. Kalchinian was at the time "an active
government informer who had but recently been the instigator of at least two other prosecutions."
Sherman, 356 U.S. at 373-74, 2 L. Ed. 2d at 852, 78 S. Ct. at 821. Kalchinian had not yet contacted
the government about Sherman. Kalchinian and Sherman became acquainted and discussed their
addiction problems. Once he established a relationship with Sherman, Kalchinian asked him if he
knew of a good source of narcotics. At first, Sherman refused to speak on the topic, but after several
entreaties, which included appeals to sympathy based on Kalchinian's withdrawal symptoms,
Sherman acceded. As the Supreme Court described it: "One request was not enough, for Kalchinian
tells us that additional ones were necessary to overcome, first, [Sherman's] refusal, then his
evasiveness, and then his hesitancy in order to achieve capitulation." Sherman, 356 U.S. at 373, 2
L. Ed. 2d at 852, 78 S. Ct. at 821. On several occasions thereafter, Sherman obtained drugs that he
shared with Kalchinian, and the two split the cost. After a number of these sales, Kalchinian
contacted the police, who set up surveillance and observed Sherman sell drugs to Kalchinian on three
additional occasions in November 1951. Sherman, 356 U.S. at 371, 2 L. Ed. 2d at 851, 78 S. Ct. at
820.
The Supreme Court found as a matter of law that Sherman was entrapped into the November
1951 drug sales. The Court found that Kalchinian was an agent of the State when he met Sherman,
because Kalchinian was under prosecution for drug trafficking and had an ongoing agreement with
the government to provide information about drug trafficking. Sherman, 356 U.S. at 373-74, 2 L.
Ed. 2d at 852, 78 S. Ct. at 821-22. The Court found it "patently clear" that Sherman was induced
to transact with Kalchinian. Sherman, 356 U.S. at 373, 2 L. Ed. 2d at 851, 78 S. Ct. at 821. The
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Court also found that the effects of Kalchinian's inducement persisted through the November 1951
sales because these sales were part of the same "course of conduct" as the earlier sales. Sherman,
356 U.S. at 374, 2 L. Ed 2d at 852, 78 S. Ct. at 822.
In this case, as in Sherman, the criminal charges pertained to sales that occurred weeks after
the inducement. The particular inducement here, which consisted of repeated solicitations and an
eventual offer of sexual favors, was as potent as the inducement in Sherman. Like the Court in
Sherman, we can identify no point at which the inducement might have lost its effect amid the cluster
of transactions. We hold that all of the charged sales were the product of Vedros's inducement.
III. CONCLUSION
We determine that Bonner was improperly induced to commit the crimes when he was not
predisposed to do so. Thus, he was entrapped as a matter of law, and we reverse his convictions and
sentences.
Reversed.
GROMETER and JORGENSEN, JJ., concur.
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