{ "id": 3151643, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ARTURO ESTRADA, Defendant-Appellant", "name_abbreviation": "People v. Estrada", "decision_date": "1980-12-19", "docket_number": "No. 80-71", "first_page": "228", "last_page": "239", "citations": [ { "type": "official", "cite": "91 Ill. App. 3d 228" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "515 F.2d 112", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1137676 ], "weight": 3, "pin_cites": [ { "page": "121" }, { "page": "121" }, { "page": "122" } ], "opinion_index": 0, "case_paths": [ "/f2d/515/0112-01" ] }, { "cite": "547 F.2d 1048", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 998986 ], "opinion_index": 0, "case_paths": [ "/f2d/547/1048-01" ] }, { "cite": "508 F.2d 101", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 135274 ], "year": 1977, "pin_cites": [ { "page": "104" } ], "opinion_index": 0, "case_paths": [ "/f2d/508/0101-01" ] }, { "cite": "394 N.E.2d 496", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "75 Ill. App. 3d 580", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3272073 ], "pin_cites": [ { "page": "593" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/75/0580-01" ] }, { "cite": "406 N.E.2d 886", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "888" } ], "opinion_index": 0 }, { "cite": "84 Ill. App. 3d 785", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3204389 ], "pin_cites": [ { "page": "788" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/84/0785-01" ] }, { "cite": "282 P.2d 249", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 10500912 ], "opinion_index": 0, "case_paths": [ "/p2d/282/0249-01" ] }, { "cite": "200 N.E. 169", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "188 N.E.2d 20", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "362 Ill. 427", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2594268 ], "weight": 2, "year": 1979, "pin_cites": [ { "page": "433" }, { "page": "433" } ], "opinion_index": 0, "case_paths": [ "/ill/362/0427-01" ] }, { "cite": "26 Ill. 2d 595", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5356039 ], "weight": 2, "year": 1936, "pin_cites": [ { "page": "597-98" }, { "page": "598" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/26/0595-01" ] }, { "cite": "103 N.E.2d 133", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "411 Ill. 46", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5312273 ], "pin_cites": [ { "page": "53" } ], "opinion_index": 0, "case_paths": [ "/ill/411/0046-01" ] }, { "cite": "396 N.E.2d 812", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "opinion_index": 0 }, { "cite": "77 Ill. 2d 396", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5490637 ], "weight": 3, "pin_cites": [ { "page": "405" }, { "page": "401" }, { "page": "407" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/77/0396-01" ] }, { "cite": "314 N.E.2d 647", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 6, "opinion_index": 0 }, { "cite": "20 Ill. App. 3d 1024", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5345783 ], "weight": 7, "pin_cites": [ { "page": "1027" }, { "page": "1027" }, { "page": "1027" }, { "page": "1029" }, { "page": "1029" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/20/1024-01" ] }, { "cite": "83 Cal. Rptr. 411", "category": "reporters:state", "reporter": "Cal. Rptr.", "opinion_index": 0 }, { "cite": "463 P.2d 763", "category": "reporters:state_regional", "reporter": "P.2d", "opinion_index": 0 }, { "cite": "1 Cal. 3d 755", "category": "reporters:state", "reporter": "Cal. 3d", "case_ids": [ 1183260 ], "opinion_index": 0, "case_paths": [ "/cal-3d/1/0755-01" ] }, { "cite": "356 U.S. 369", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6163723 ], "weight": 15, "pin_cites": [ { "page": "385" }, { "page": "377" }, { "page": "854" }, { "page": "377" }, { "page": "854" }, { "page": "374" }, { "page": "852" }, { "page": "822" }, { "page": "374-75" }, { "page": "852" } ], "opinion_index": 0, "case_paths": [ "/us/356/0369-01" ] } ], "analysis": { "cardinality": 1115, "char_count": 28581, "ocr_confidence": 0.882, "pagerank": { "raw": 1.8703049577341038e-07, "percentile": 0.72618866968692 }, "sha256": "01cb38cb2a47938143467737b866187c61d7fc9e695749a9be77ca67200e7d91", "simhash": "1:aec3d51fa2c0d419", "word_count": 4765 }, "last_updated": "2023-07-14T14:46:24.599710+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ARTURO ESTRADA, Defendant-Appellant." ], "opinions": [ { "text": "Mr. PRESIDING JUSTICE ALLOY\ndelivered the opinion of the court:\nDefendant, Arturo Estrada, appeals from two convictions for delivery of more than 15 grams of a substance containing heroin. (Ill. Rev. Stat. 1979, eh. 56?2, par. 1401(a)(1).) The first of these deliveries occurred on February 13, 1979. The second occurred two days later, on February 15. The defendant, who was 28 years old at the time of his jury trial on these charges, was sentenced to concurrent terms of 10 and 11 years in the Department of Corrections. The jury also convicted the defendant of possession with intent to deliver more than 15 grams of a substance containing heroin. (Ill. Rev. Stat. 1979, ch. 56/2, par. 1401(a)(1).) This charge was dismissed by the court as arising from the same occurrence as the February 15 delivery. Two counts of calculated criminal drug conspiracy were tried separately by the court, and the defendant was acquitted of both charges.\nThe defendant\u2019s first contention on appeal is that he was improperly denied proposed jury instructions dealing with the defense of entrapment. Although the rule has been criticized (see, e.g., Sherman v. United States (1958), 356 U.S. 369, 385, 2 L. Ed. 2d 848, 78 S. Ct. 819, (Frankfurter, J., concurring); People v. Moran (1970), 1 Cal. 3d 755, 463 P.2d 763, 83 Cal. Rptr. 411 (Traynor, C. J., dissenting)), both the Federal courts and the courts of our State have determined that, \u201cunless the court could decide the issue as a matter of law, the factual issue of whether a defendant has been unlawfully entrapped is for the jury as part of its function of determining the guilt or innocence of the accused. Sherman v. United States, 356 U.S. 369, 377, 2 L. Ed. 2d 848, 854, 78 S. Ct. 819 (1958).\u201d (People v. Carpentier (1974), 20 Ill. App. 3d 1024, 1027, 314 N.E.2d 647.) \u201cThe issue, therefore, before the court was whether the evidence against entrapment was so clear and convincing that it could be said as a matter of law that there was no entrapment.\u201d (People v. Carpentier (1974), 20 Ill. App. 3d 1024, 1027, 314 N.E.2d 647.) Because lack of entrapment was found by the court as a matter of law, we look at the facts in a light most favorable to the defendant. 20 Ill. App. 3d 1024, 1027.\nOn February 13, 1979, the defendant met Agent John Beck and Janice Bianchi, a police informant, at a Holiday Inn in Will County. There the defendant delivered slightly less than two ounces of heroin. Agent Beck paid the defendant $3,600, $1,800 for the heroin delivered on that date and $1,800 for a previous transaction. The defendant again met with Agent Beck and Janice Bianchi on February 15 at a Slcelly Truck Stop. This time, the defendant himself was not in physical possession of the heroin. After a discussion with Agent Beck, the defendant joined Janice Bianchi in the restaurant. The defendant\u2019s cousin, George Estrada (who was tried separately), arrived and delivered 22 ounces of heroin to agent Beck. Both the defendant and George Estrada were then arrested. Each of these heroin deliveries was preceded by a series of telephone calls from Janice Bianchi to the defendant.\nFive of these conversations were tape recorded and transcribed and are part of the record. In each of these conversations, Janice Bianchi would specify the amount of \u201cstuff\u201d required and the location to which it was to be delivered. For the February 15 meeting, the defendant suggested the approximate time. Janice insisted that the defendant meet the buyer personally, although the defendant was reluctant to do so. According to the defendant\u2019s testimony, these conversations were merely the culmination in a long series of incidents in which Janice Bianchi induced him to supply her with heroin. In August 1978, the defendant met Janice Bianchi for the first time through a mutual acquaintance, a man called \u201cChicken.\u201d The defendant believed that Chicken was involved in drug trafficking. In October 1978, the defendant and Chicken again saw Janice Bianchi in a bar and restaurant in Chicago. When Chicken left to talk with Janice\u2019s sister, Janice began to hug and kiss the defendant and told him that she would like to see him alone sometime. The defendant agreed. She called him the following week and arranged to meet the defendant at a motel. There they engaged in sexual relations. Later, Miss Bianchi again called the defendant. The defendant\u2019s cousin gave him the key to a friend\u2019s apartment in Chicago. The defendant met with Janice Bianchi there and on subsequent occasions and engaged in sexual relations with her. It was after they started meeting in the apartment that Janice Bianchi asked the defendant for the first time if he could supply her with drugs. The defendant at first told her that he thought Chicken had some, but Janice insisted she wanted another source. The defendant agreed to ask around.\nAccording to the defendant, his cousin George was a source of heroin, and the defendant would serve as a go-between and translator for Janice Bianchi and George. It is not clear from the testimony of any witness in this case whether Janice Bianchi at first told the defendant she wanted drugs for herself or others or what quantity of drugs were at first delivered. It is clear that at some point Janice Bianchi\u2019s interest in narcotics was, at least in part, financial. The defendant appeared to have little difficulty in obtaining 2 or even 20 ounces of heroin, although he expressed great reticence at the prospect of obtaining 40 ounces. The defendant claims that he never received any money for his deliveries of drugs to Janice Bianchi, but, on the contrary, would usually give her money each time they met. He acknowledges having agreed with George to receive $625 for the February 15 heroin delivery to Agent Beck. Agent Beck testified that Janice Bianchi became an informant for his agency on February 3,1979. There was no other evidence of Janice Bianchi\u2019s history as a police informant. Janice Bianchi did not testify. The defendant had no prior criminal record.\nIn Illinois, the defense of entrapment is established by statute. Section 7 \u2014 12 of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 7 \u2014 12) reads:\n\u201cA person is not guilty of an offense if his 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 such person. However, this Section is inapplicable if a public officer or employee, or agent of either, merely affords to such person the opportunity or facility for committing an offense in furtherance of a criminal purpose which such person has originated.\u201d\nIt has been held by the courts that entrapment will lie only when the police officer or agent induced the commission of the crime and when the defendant has no predisposition to commit the crime charged. (See People v. Cross (1979), 77 Ill. 2d 396, 405, 396 N.E.2d 812.) Neither party contends that the defendant was not induced to commit this crime by a police agent. The tape-recorded conversations between Janice Bianchi and the defendant reveal that the sales for which the defendant was charged were proposed by Janice Bianchi. Miss Bianchi established the amount of drugs to be delivered and their place of delivery, with the defendant merely affirming in extremely broken English. Beyond perfunctory agreement with the plans of Janice Bianchi, the extent of defendant\u2019s declaration during the whole of the five recorded phone conversations were as follows: He indicated that he would be available for the February 15 meeting at the noon hour; he expressed fear at handling the amount of money that would be involved were the purchase to involve 40 ounces; he expressed general fear at meeting with third parties; he expressed a desire to see Janice Bianchi alone; and he wished to exchange Valentine\u2019s Day greetings with Janice Bianchi. The trial court, however, concentrated on defendant\u2019s \u201cpredisposition.\u201d The court noted the 30 or so deliveries of heroin which defendant admits to have arranged for Janice Bianchi, and the court concluded \u201cbeyond a reasonable doubt\u201d that the defendant was predisposed to commit the crimes with which he was charged. For this reason, the court refused to tender the proposed entrapment instructions.\nIn the case of People v. Carpentier (1974), 20 Ill. App. 3d 1024, 314 N.E.2d 647, this court stated the rule, previously established by our supreme court, that the court does not weigh the evidence upon a question of whether any instruction is proper on a certain theory. Very slight evidence upon a given theory of a case will justify the giving of an instruction. (People v. Khamis (1951), 411 Ill. 46, 53, 103 N.E.2d 133.) It is not contended by defendant that the evidence presented at the trial is sufficient to constitute entrapment as a matter of law. Defendant contends merely that there was enough evidence to entitle him to benefit of an entrapment instruction to the jury. As we have already indicated, both the Federal courts (Sherman v. United States (1958), 356 U.S. 369, 377, 2 L. Ed. 2d 848, 854, 78 S. Ct. 819) and Illinois courts have determined that the factual issue, of whether a defendant has been unlawfully entrapped, is for the jury as part of its function of determining the guilt or innocence of the accused (People v. Carpentier (1974), 20 Ill. App. 3d 1024, 314 N.E.2d 647). The Illinois Pattern Instructions, approved by our supreme court, provide an instruction defining the entrapment defense, based upon the Illinois entrapment statute, set out in this opinion. (IPI Criminal No. 24.04 (1968).) In addition, there is a pattern instruction for those cases in which entrapment is at issue which charges a jury that the State must prove beyond a reasonable doubt all of the elements of the offense and \u201c[t]hat the defendant was not entrapped.\u201d IPI Criminal No. 25.04 (1968).\nOur supreme court recently stated that, when the defense of entrapment is raised in the circuit court, it becomes incumbent upon the State to prove beyond a reasonable doubt that entrapment did not occur. (People v. Cross (1979), 77 Ill. 2d 396, 401, 396 N.E.2d 812.) We interpret these words to mean, as we have previously held, that when a defendant \u201celected to have a jury trial and not a bench trial he was entitled to have the jury determine the validity of his entrapment defense * \u00b0 (People v. Carpentier (1974), 20 Ill. App. 3d 1024, 1029, 314 N.E.2d 647.) However, in the same opinion, the supreme court stated:\n\u201cCross contends, however, that his conviction should nonetheless be reversed because the circuit court refused to instruct the jury on entrapment. The circuit court specifically held that defendant had not met the qualification for the defense of entrapment, and it therefore refused the tendered instruction. We find no error in the ruling. The State\u2019s evidence established beyond a reasonable doubt that Cross was predisposed to commit the offense and that the idea for the sale originated with him. People v. Cash (1963), 26 Ill. 2d 595, 597-98; People v. Guagliata (1936), 362 Ill. 427, 433.\u201d People v. Cross (1979), 77 Ill. 2d 396, 407, 396 N.E.2d 812.\nIn the first case cited therein, People v. Cash, the supreme court stated: \u201c[W]e believe the undisputed testimony of the People proves that the crime originated in the mind of the defendant and that he was apprehended by lawful artifice in the execution of a criminal act of his own conception. The trial court properly refused to instruct the jury in regard to the law of entrapment, since no question of fact was presented.\u201d (26 Ill. 2d 595, 598, 188 N.E.2d 20.) In the other case cited by the supreme court in Cross, People v. Guagliata, the court stated: \u201cHere the officers did no affirmative act whatever to incite or persuade the defendant to sell the morphine, but they did, as they had the right to do, afford him an opportunity to violate the statute. The court, under the evidence, would not have been justified in giving the requested instruction.\u201d 362 Ill. 427, 433, 200 N.E. 169.\nAs to defendant Cross, the defendant\u2019s own testimony indicated that he was predisposed to sell the heroin, and it was undisputed that the sale was originally proposed by the defendant himself. Thus, there was no evidence of any of the elements of entrapment. In light of these facts and the cases upon which the supreme court relied, we do not believe that the supreme court has, in the Cross case, removed the fact-finding function from the jury as to the issue of entrapment. In the absence of a specific statement by the supreme court to the contrary, we hold that the prior law on this issue is still sound, i.e., that slight evidence of entrapment is enough to require submission of the issue to the jury.\nWe do not agree with the trial court that the defendant\u2019s history of prior deliveries of narcotics to Janice Bianchi was determinative of the issue of predisposition. While we might agree that defendant was disposed to commit the particular deliveries of heroin for which he was convicted, this does not, under the facts of this case, establish predisposition as a matter of law. The last two deliveries of heroin are not to be considered in isolation. The deliveries were induced by Janice Bianchi, a police informer, who had been the defendant\u2019s lover for some five months. The record indicates that all known prior deliveries of narcotics by the defendant were to Janice Bianchi, that they all were at her request, and that all of these occurred subsequent to the commencement of their \u201clove affair.\u201d \u201cIt makes no difference that the sales for which petitioner was convicted occurred after a series of sales. They were not independent acts subsequent to the inducement but part of a course of conduct which was the product of the inducement.\u201d (Sherman v. United States (1958), 356 U.S. 369, 374, 2 L. Ed. 2d 848, 852, 78 S. Ct. 819, 822.) The claim by Agent Beck that Janice Bianchi only became his informant on February 3 does not change this result, in the absence of any evidence as to Janice Bianchi\u2019s motivation prior to February 3. Cf. Sherman v. United States (1958), 356 U.S. 369, 374-75, 2 L. Ed. 2d 848, 852, 78 S. Ct. 819; Beasley v. State (Okla. Crim. 1955), 282 P.2d 249.\nIt may be that the defendant was in close contact with narcotics dealers and other persons who were in the narcotics culture. While we might personally be disposed to find on the record that there was no entrapment in the cause before us, and hesitate to reverse a case solely on the ground of the failure of the trial court to give an entrapment instruction, we believe that the facts and circumstances in the cause before us are such that the omission to give the entrapment instruction requires a reversal and remandment of this cause. People v. Carpentier (1974), 20 Ill. App. 3d 1024, 1029, 314 N.E.2d 647.\nThe defendant argues that, upon reversal, this cause should not be remanded for retrial because overreaching by the prosecutor at his trial bars his retrial on grounds of double jeopardy. The defendant had his trial severed from that of his cousin, George Estrada. Defendant\u2019s first trial ended in mistrial because the jury had been exposed to a radio broadcast which related that George Estrada had been convicted for his participation in the drug transfers and that the estimated street value of the drugs was $200,000. At defendant\u2019s second trial, the one from which he is now appealing, the prosecution\u2019s first witness was Agent Beck. While establishing the chain of custody of the heroin, Agent Beck revealed that the heroin was out of his vault during the trial of George Estrada. After defendant\u2019s objection to this testimony, the trial judge gave the prosecutor a severe lecture, accusing him of intentionally bringing before the jury evidence he knew to be prejudicial. Ultimately, however, the court concluded that the testimony was harmless. With this conclusion we agree. One of the defendant\u2019s contentions at trial was that George was the heroin trafficker and the defendant served merely as a go-between and translator. That the jury should be informed that George was also charged in connection with this incident in no way prejudiced the defendant. The result of George\u2019s trial was never elicited.\nLater in the trial, outside of the presence of the jury, a conference was held on the admissibility of the tape-recorded telephone conversations between the defendant and Janice Bianchi. The court ruled the tapes inadmissible on the grounds of inadequacy of foundation. After the jury returned, Agent Malinowski testified for the State. He was questioned regarding the tape recordings of the conversations between Janice Bianchi and the defendant and regarding a tape recording of a conversation between the defendant and John Beck at the Skelly Truck Stop on February 15. Agent Malinowski testified as to the functioning of the recording device and as to the chain of custody of the tapes. The defendant objected, seeing, quite accurately, where this line of questioning was leading. Because the Truck Stop tape was also referred to, the court allowed the questioning to continue. The Truck Stop tape had not been ruled inadmissible. The prosecutor then moved, in the presence of the jury, to admit the tapes of the telephone coversations. At defendant\u2019s request, a side-bar was held, which lasted the rest of that day and all of the next.\nThe defendant argued that the prosecutor had engaged in intentional misconduct in order to prejudice the defendant in the eyes of the jury. The defendant claimed that, despite knowing the evidence to be inadmissible, the prosecutor wanted to impress upon the jury that the defense was trying to keep evidence from them. The prosecutor argued that he was still convinced his position on the admissibility of the tapes was correct and that he was under the impression that he could make an offer of proof in the presence of the jury. The court ordered a mistrial, but did not excuse the jury. The court found that the prosecutor\u2019s misconduct was unintentional. More arguments were held on the admissibility of the tapes. The court then concluded that its first decision as to their admissibility had been erroneous and that a proper foundation had been established. Because the tapes were admissible, the court concluded, an offer to admit them was not prejudicial to the defendant. The declaration of mistrial was rescinded and the trial continued.\n\u00ae 4 Because of our reversal of this caus\u00e9 on the grounds of improper jury instruction, we do not reach the issue of whether the prosecutor\u2019s methods of getting the tapes into evidence prejudiced the jury. We do, however, need to examine the issue of whether the prosecutor\u2019s conduct constituted such overreaching as to bar retrial of this defendant on the grounds of double jeopardy. The conduct of the prosecutor in ignoring the order of the court and offering into evidence, in the presence of the jury, items that had just moments before been declared, in no uncertain terms, inadmissible, was inexcusable. That the order so ignored was erroneous in no way excuses his behavior. We shall, however, defer to the trial court\u2019s judgment that the actions of the prosecutor were not intended to prejudice the jury, but were merely demonstrative of the prosecutor\u2019s obtuseness, charitably referred to by the trial court as single-mindedness.\nFurthermore, this is not the type of situation which bars reprosecution on double jeopardy grounds. We recently held that, even were it true that the prosecutor intentionally engaged in prosecutorial misconduct in an effort to obtain a conviction, the defendant cannot avail himself of double jeopardy protection for this reason alone.\n\u201cTo obtain the protection of the double-jeopardy clause in a case such as this, the intent of the prosecutor in overreaching must be to obtain a premature termination of the proceedings by forcing the defendant to move for a mistrial. Unless the prosecutor\u2019s misconduct was a ploy to force the defendant to move for a mistrial, and thereby obtain an opportunity to prosecute the defendant a second time, overreaching to obtain a conviction, although not to be condoned, does not itself foreclose reprosecution.\u201d (People v. Gomez (1980), 84 Ill. App. 3d 785, 788, 406 N.E.2d 886, 888.)\nIt is not here contended that the prosecutor acted with the intent of eliciting a mistrial in order to avoid an acquittal in this case.\nThe defendant argues that the rule barring reprosecution in cases of prosecutorial overreaching is not so limited. He cites us to People v. Pendleton (1979), 75 Ill. App. 3d 580, 593, 394 N.E.2d 496, wherein it is stated:\n\u201cOverreaching is typically defined as prosecutorial or judicial misconduct: (1) which is specifically designed to provoke a mistrial in order to secure a second \u2014 and perhaps more favorable \u2014 opportunity to convict the accused [citations]; or (2) which is motivated by bad faith or undertaken to harass or prejudice the accused * * * .\u201d\nWe note, however, that Pendleton involved a case in which the prosecution\u2019s case was \u201cgoing badly\u201d because of the failure of the complainant to identify the defendants. There, the prosecutors coached the witness, during a trial recess, while she was still in the midst of her testimony. The court stated: \u201cIt would be offensive to the constitutional guaranty against successive, oppressive prosecutions, if the State, at a trial in which its case was going badly, could, by such misconduct, precipitate a mistrial and thereby gain another more favorable opportunity to convict the accused.\u201d The court then went on to cite a case from another jurisdiction which referred to the subtle changes in testimony that prosecution witnesses may present on retrial. We, therefore, do not find Pendleton to contradict our statement in People v. Gomez. In the case \u00e1t bar there was no showing that the prosecutor so feared acquittal that he was willing to risk retrial in hopes of being able to present a stronger case. The commission of prejudicial error, in an effort to gain a conviction at the initial trial, is all too commonly the precipitating cause of reversal. The usual remedy is remandment for retrial.\nUpon remandment, the trial court will need to consider the admissibility of the taped telephone conversations between Janice Bianchi and the defendant. These conversations occurred between February 12 and February 14, 1979. The defendant argues that the tapes are inadmissible because there exists no foundation adequate to establish that the tapes are, in fact, what they are reputed to be. Specifically, he asserts that no witness at this trial was able to say that he heard Arturo Estrada\u2019s side of the conversation and that the tape accurately represents what Arturo Estrada said. The police agents who testified in this case could only testify that they heard Janice Bianchi\u2019s side of the conversation, and that her words were accurately recorded on the tapes. No police officer listened in on the conversation while it took place. There is no dispute as to the identity of the parties to the conversation. The defendant acknowledges that the police agents could accurately identify his voice as that on the tape. The defendant argues that the only person who could testify to the accuracy of the recording of Arturo Estrada\u2019s words was Janice Bianchi, and that she, although available, did not testify. We agree with the defendant that the better practice would be to establish the authenticity of a tape through the testimony of one who heard both sides of the conversation. Such testimony would have to be provided by one who either was a party to the conversation or who eavesdropped on both sides of the conversation, e.g., by listening over headphones, as the conversation occurred. However, a failure to produce such a witness need not preclude the admissibility of the recordings. Proper foundation may be established through evidence of the mechanical capabilities of the recording machine plus evidence of a secure chain of custody. (E. Cleary and M. Graham, Handbook of Illinois Evidence \u00a7901.6 (1979).) The Federal courts have established the elements of such a foundation. They are:\n(1) That the recording device was capable of taking the conversation now offered in evidence.\n(2) That the operator of the device was competent to operate the device.\n(3) That the recording is authentic and correct.\n(4) That changes, additions or deletions have not been made in the recording.\n(5) That the recording has been preserved in a manner that is shown to the court.\n(6) That the speakers are identified.\n(7) That the conversation elicited was made voluntarily and in good faith without any kind of inducement.\nUnited States v. McMillan (8th Cir. 1974), 508 F.2d 101, 104; United States v. Hassell (8th Cir. 1977), 547 F.2d 1048.\nThe defendant does not claim the absence of any of these foundation requirements. He merely asserts that the State has failed to show that the tape has not failed to record accurately every word spoken by the defendant. At the hearing in limine, the defendant did not assert which, if any, of the words that the defendant spoke were not accurately recorded on the tape. \u201cWhile proof of facts creating a sufficient foundation foi the admission of a tape recording is a matter to be decided by the trial court, it does not have unbridled discretion to disregard the problems inherent in the use of such evidence.\u201d (United States v. Starks (3rd Cir. 1975), 515 F.2d 112, 121.) \u201c[T]he burden is on the government \u2018to produce clear and convincing evidence of authenticity and accuracy as a foundation for the admission of such recordings.\u2019 \u201d (515 F.2d 112, 121.) \u201cWhen a colorable attack is made as to a tape\u2019s authenticity and accuracy, the burden on those issues shifts to the party offering the tape.\u201d (515 F.2d 112, 122.) At the defendant\u2019s trial, undisputed testimony was presented as to all of the foundation requirements listed above except that it was never affirmatively established that the recording was \u201ccorrect.\u201d (See foundation requirement (3) above.) In the absence of testimony by one who has heard both sides of the conversation, it would be impossible to show that the recording was \u201ccorrect.\u201d Professors Cleary and Graham, in their Handbook on Illinois Evidence, at section 901.6, writes that the foundation can be established through testimony as to (1) capability of the device for recording, (2) competency on the operator, (3) proper operation of the device, (4) preservation of the recording with no changes, additions, or deletions, as well as (5) identification of the speakers. Also, chain of custody must be established. The text writers, therefore, do not think it necessary for the State to affirmatively show that the records are \u201ccorrect\u201d in order to establish the proper foundation for their admission into evidence.\nWe therefore conclude that, in the absence of a colorable claim that the tapes failed to accurately record all of the words audibly spoken by the defendant, the State need not prove that the device did, in fact, record every audible word spoken by the defendant. If such proof becomes necessary, it may be established by circumstantial evidence, such as a demonstration of the sensitivity and reliability of the recording device and the absence of gaps in the recorded conversation. The other foundation requirements we have listed deal adequately with the problem of physical tampering. Contrary to defendant\u2019s assertion, Janice Bianchi was not the only witness to both sides of the recorded conversation. The defendant himself was such a witness. He, therefore, will have the opportunity of raising a colorable attack on the \u201ccorrectness\u201d of the recording when the cause is retried.\nIt is necessary to consider the defendant\u2019s other contentions of error.\nFor the reasons stated in this opinion, the convictions and sentence of defendant for two counts of delivery of a controlled substance are 1 reversed and the cause is remanded to the Circuit Court of Will County for retrial.\nReversed and remanded.\nSTOUDER and SCOTT, JJ., concur.", "type": "majority", "author": "Mr. PRESIDING JUSTICE ALLOY" } ], "attorneys": [ "Robert Agostinelli and Michael Filipovic, both of State Appellate Defender\u2019s Office, of Ottawa, for appellant.", "Edward F. Petka, State\u2019s Attorney, of Joliet (John X. Breslin and Kenneth A. Wilhelm, both of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ARTURO ESTRADA, Defendant-Appellant.\nThird District\nNo. 80-71\nOpinion filed December 19, 1980.\nRobert Agostinelli and Michael Filipovic, both of State Appellate Defender\u2019s Office, of Ottawa, for appellant.\nEdward F. Petka, State\u2019s Attorney, of Joliet (John X. Breslin and Kenneth A. Wilhelm, both of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People." }, "file_name": "0228-01", "first_page_order": 250, "last_page_order": 261 }