dissenting:
I would affirm the circuit court of Will County in this cause, and, therefore, I must dissent.
A careful review of the record discloses a number of relevant facts omitted from the majority opinion. Defendant testified that the informant, Jerry Stevenson, had given him two packets of cocaine before he introduced defendant to McCarthy, the police officer. Defendant said that the informant instructed him to sell the cocaine to McCarthy for him so that McCarthy would not know the informant was dealing. Defendant also said that, at the time of the introduction, the informant urged defendant to do what he could for McCarthy because McCarthy could get defendant a good construction job if he was pleased with defendant. Defendant further testified that the informant said he was leaving town, and defendant did not mention seeing the informant again. Defendant also stated that after the first sale, he gave the money to the informant’s “old lady,” who said she knew where the informant was and that he had not gone out of town as everyone thought.
Defendant and McCarthy both testified about negotiations for a big sale of cocaine which occurred after the first sale. According to McCarthy, defendant said he could get two ounces for a price of $2,000 and that his “connection” wanted the money up front. Defendant says he quoted a price of $4,000 and did not mention a connection. Defendant testified that he never intended to make such a sale but rather hoped to steal the money from McCarthy. The sale never took place.
The informant was served with a defense subpoena, and according to the process server’s return, the informant has had a “sex change” operation and is now Jenny Stevenson. Documents in the record indicate that the informant came to the office of defense counsel shortly before trial to state that he/she knew nothing about the transactions involved in this case. The informant also went to the State’s Attorney’s office the same day and signed an affidavit stating that he/she had been out of Illinois from April 8 to June 30, 1986, and had no contact with defendant during this time period.
Accompanying the motion for continuance was defendant’s answering affidavit which did not deny any of the informant’s assertions but instead recited that he believed the informant would testify that he furnished the drugs and solicited defendant to deliver them. Defendant’s trial testimony, of course, indicates that this happened before defendant had been introduced to McCarthy. The informant’s affidavit only refers to the informant’s lack of involvement after McCarthy was introduced to defendant, not before. These facts do not provide much basis for finding an entrapment defense.
However, even if entrapment were properly at issue, I cannot agree that the failure of the State to reveal the informant’s name was prejudicial error. Defendant knew the informant’s name and had him/ her served with a subpoena. In addition, the informant actually came to defense counsel’s office prior to trial. Thus, defendant would have gained no advantage from disclosure that he did not already have of his own knowledge. Of course, the witness declined to appear at trial, but defendant does not demonstrate how pretrial disclosure by the State of a name and address already known by defendant would have helped defendant.
Similarly, defendant does not establish how he would have been aided by a continuance. The majority cites People v. Stumpe for the proposition that defendant could have moved for the State to produce the informant if the State had disclosed his/her identity, but that case was one involving a question of whether the testimony of the informant, whose identity had previously been disclosed, would be favorable to the defendant. The court found it would not and noted that the burden of producing the witness would have been on the State had the defendant established the relevance and materiality of the missing witness. In the case at bar, the witness is not “missing” or unknown. He/she was known by defendant, was found by a process server, appeared in counsel’s office, but nonetheless declined to appear for trial. Whatever the remedy should be for the informant’s refusal to testify, I cannot see how a pretrial order of disclosure or a continuance would have benefitted defendant in this case. Hence, the error asserted by defendant was harmless, and I would affirm defendant’s conviction.