dissenting:
I respectfully dissent on two bases. First, after determining the trial court applied an incorrect standard of law in denying defendant’s affirmative defense of entrapment, this court should reverse the judgment and remand for a new trial rather than undertake to review the evidence as the finder of fact. Second, contrary to the conclusion of the majority, I consider that the State has not proved the absence of entrapment beyond a reasonable doubt.
As noted in the opinion, the trial court erroneously considered that the defense of entrapment was met if the evidence showed defendant “willingly” committed the offense. (See People v. Pates (1981), 84 Ill. 2d 82, 417 N.E.2d 618.) In rendering its verdict after the bench trial the court stated the circumstances of the case raised suspicions where an individual such as the police agent, Mason, is set loose in the community like a “loose cannon,” that Mason did supply the drugs to defendant and that the idea originated with Mason. The court considered, however, that because defendant understood Mason’s idea and was ready to accept it, that constituted a predisposition and removed the entrapment defense. In a post-trial hearing, the court also stated defendant’s willingness to enter into the sale was the decisive point in the case and, at sentencing, the court characterized the transaction as a “cheap shot,” but that defendant was not innocent of criminal activity because he willingly participated in it.
In its brief, the State argues the trial court did apply the correct standard, but alternatively suggests, if this court finds otherwise, that use of an improper standard of law in a bench trial would be comparable to the giving of an erroneous jury instruction for which the proper remedy is reversal and new trial.
The majority, however, undertook a de novo evaluation of the evidence in which, presumably, it determined the weight to be given thereto and the credibility of the witnesses. I suggest the correct rule where a case has been tried under an incorrect theory of law is to reverse the judgment and remand for a new trial, and would do so here. People v. Francis (1978), 73 Ill. 2d 184, 383 N.E.2d 161; People v. Thompson (1967), 36 Ill. 2d 332, 335, 223 N.E.2d 97.
If this court could properly review the evidence in these circumstances, I would find that the State failed to establish entrapment did not take place or that defendant was predisposed to commit the offense.
It is undisputed that after his arrest for unrelated offenses, Michael Mason was offered leniency by the police if he agreed to set up three deliveries of a controlled substance. While so acting as a police agent (see People v. Dollen (1972), 53 Ill. 2d 280, 290 N.E.2d 879), Mason brought a small amount of cocaine to defendant’s home where, after considerable urging, defendant agreed to deliver it to Mason’s customer. Mason thereupon drove defendant to a meeting with an undercover police officer to whom defendant handed the cocaine and received payment. Defendant earned $25 for his service to his friend, Mason. It seems clear to me that the police agent induced defendant to sell the drug for the purpose of obtaining evidence for defendant’s prosecution; it seems equally clear the police agent did more than merely afford defendant with the opportunity to commit the offense and that defendant did not originate the criminal purpose. See Ill. Rev. Stat. 1983, ch. 38, par. 7 — 12.
In many respects the facts here are similar to those in People v. Martin (1984), 124 Ill. App. 3d 590, 593, 464 N.E.2d 837, 839, appeal denied (1984), 101 Ill. 2d 573, where the court reversed the conviction, finding, “[B]ut for the unrelenting coercion of the paid informant ***, who did not come forward to rebut the fact that he was not only the source of the narcotics but the prime mover in their distribution, the defendant would never have been predisposed to commit the offense in question. *** [W]e cannot say beyond a reasonable doubt that the idea for the crime charged originated with the defendant. [Citation.]” See also People v. Cross (1979), 77 Ill. 2d 396, 396 N.E.2d 812.
There was no evidence here defendant ever dealt in drugs or was inclined to do so prior to the arrival of Mason at defendant’s home with the cocaine and argument which persuaded defendant to comply with his friend’s wishes. It appears to me defendant was drawn into this manufactured crime by a police agent not for any real law enforcement purpose to suppress the sale of drugs, but to relieve Mason of his other liabilities with the police and, perhaps, to enhance the officer’s drug arrest records. I think the entrapment defense is designed for situations such as this and would have so held here.