People v. Bonner

SUPREME COURT CASES

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People v. Bonner

State: Illinois

Court: 2nd District Appellate

Docket No: 2-06-1065 Rel

Case Date: 09/23/2008

Preview:No. 2--06--1065 ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT ______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court ) 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

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