dissenting:
I disagree with the majority opinion in two respects. First, this record establishes the existence of entrapment as a matter of law, and, second, if one is not persuaded to that conclusion, then the defendant is entitled to a new trial by reason of incompetence of trial counsel. It is simply incomprehensible to me that the majority opinion categorizes the actions of the trial counsel here as mere “trial tactics.”
Once the entrapment defense is raised, it becomes incumbent upon the State to prove beyond a reasonable doubt that entrapment did not occur. (Ill. Rev. Stat. 1979, ch. 38, par. 3 — 2(b); People v. Tipton (1980), 78 Ill. 2d 477, 487, 401 N.E.2d 528, 532-33.) The precise question presented here is whether the evidence presented is sufficient to negate the defense of entrapment, beyond a reasonable doubt.
The prohibition against police action designed to create and induce criminal acts in order to prosecute those persons who commit them underlies the entrapment defense. (People v. Hall (1962), 25 Ill. 2d 297, 300, 185 N.E.2d 143, 145, cert. denied (1963), 374 U.S. 849, 10 L. Ed. 2d 1069, 83 S. Ct. 1912.) Entrapment has been defined as “the conception and planning of an offense by an officer, and his procurement of its commission by one who would not have perpetrated it except for the trickery, persuasion, or fraud of the officer.” (Sorrells v. United States (1932), 287 U.S. 435, 454, 77 L. Ed. 413, 423, 53 S. Ct. 210, 217 (Roberts, J., concurring); People v. Lewis (1963), 26 Ill. 2d 542, 545, 187 N.E.2d 700, 701.) Entrapment does not exist where the law enforcement officer merely provides an opportunity for the commission of a crime by one who is already so predisposed — the distinction is between the inducement of an otherwise innocent person and the apprehension through lawful artifice of an individual already engaged in criminal activity. Two questions must be answered when determining if entrapment occurred: (1) whether the defendant was induced to commit a criminal offense by a government official or agent; and (2) whether the defendant was predisposed to commit the type of offense with which he is charged. People v. Lewis (1963), 26 Ill. 2d 542, 545-46, 187 N.E.2d 700, 701; People v. Spahr (1978), 56 Ill. App. 3d 434, 437, 371 N.E.2d 1261, 1264.
The State argues that the police officers did not induce this burglary, but merely suggested the site. The record, however, refutes this contention. Randy Walden, who was working with the police, suggested committing this burglary to the defendant. Detective Lieb chose the Corey residence as the site of the burglary, and told Walden to be there between 9 and 11 p.m.
A closer question concerns the predisposition of the defendant. Predisposition means an already formed intent to commit the offense charged. (People v. Tipton (1980), 78 Ill. 2d 477, 495, 401 N.E.2d 528, 536 (Clark, J., dissenting).) The State argues that defendant’s history of burglary involvement shows he was predisposed to commit this crime and supports the jury’s determination of no entrapment. The record does show that the officers involved suspected that defendant had committed prior burglaries; and, according to the officers’ testimony, Randy Walden had committed burglaries with the defendant in the past. At trial, Walden denied that he and defendant had ever committed a burglary. In the very recent case of People v. Pates (1981), 84 Ill. 2d 82, the supreme court rejected a notion that entrapment did not exist if an agent of a public officer merely afforded an opportunity for committing a “crime which he was willing to commit.” (84 Ill. 2d 82, 86.) The question is not whether the defendant intended to commit the crime, but whether the intent originated in his mind. (People v. Cross (1979), 77 Ill. 2d 396, 396 N.E.2d 812.) The evidence is simply insufficient to support a finding of predisposition on the part of the defendant.
We turn now to the issue of whether the defendant was denied the effective assistance of counsel. Interestingly enough the State does not assert waiver of any issue although no post-trial motion was filed by counsel. On appeal, the defendant attacks the evidence insinuating that he had been involved in other burglaries. That evidence was elicited by defense counsel even after the prosecutor informed counsel and the court that the State was not going to attempt to have such suspicions introduced in evidence. Counsel for the defendant responded that he was pursuing that line of examination of a witness and that he did not know what the witness was going to say. This was a clear indication that counsel did not interview the witness he was examining prior to the examination. That testimony was inadmissible if offered by the State, and it was clearly severely prejudicial to the defendant. An attorney representing a defendant charged with a burglary who elicits evidence of his client’s propensity to commit burglaries and the fact that his client was involved in other burglaries is hardly using trial tactics. It was a grievous error.
I am aware that in order to prevail in a claim of incompetence of counsel a defendant must establish that there was actual incompetence and that such resulted in substantial prejudice to his case. (People v. Hills (1980), 78 Ill. 2d 500, 505, 401 N.E.2d 523, 525; People v. Witherspoon (1973), 55 Ill. 2d 18, 21, 302 N.E.2d 3, 4-5.) In this case, defense counsel raised the valid defense of entrapment, and then through his examination of witnesses introduced evidence the substantive effect of which would be to tend to defeat that defense. Defense counsel elicited evidence tending to show that the defendant charged with burglary was a burglar. Effective representation of a defendant in a criminal case requires some familiarity with what testimony witnesses are going to give and pretrial preparation sufficient to enable counsel to anticipate witnesses’ answers and to avoid questions that would tend to inculpate his client. (See People v. De Simone (1956), 9 Ill. 2d 522, 527, 138 N.E.2d 556, 559.) Finally, the total failure of defense counsel to file a post-trial motion in view of the errors found in this record is but further evidence of the fact that the defendant here did not have that quality of representation necessary in order to obtain a fair trial. Thus, although I would reverse finding entrapment as a matter of law, if one is not persuaded to that view, then at a minimum this defendant is entitled to a new trial. For those reasons, I dissent.