People v. Katsigiannis, 2-87-0518

• Decision Date: 30 June 1988
• Docket Number: No. 2-87-0518,2-87-0518
• Citation: 122 Ill.Dec. 249,526 N.E.2d 508,171 Ill.App.3d 1090
• Parties: , 122 Ill.Dec. 249, 82 A.L.R.4th 337 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Angelo P. KATSIGIANNIS, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 508

526 N.E.2d 508

171 Ill.App.3d 1090, 122 Ill.Dec. 249,

82 A.L.R.4th 337

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Angelo P. KATSIGIANNIS, Defendant-Appellant.

No. 2-87-0518.

Appellate Court of Illinois Second District.

June 30, 1988.

Law Offices of John F. Donahue, Oak Brook and Glenn M. Sowa, Law Offices of John F. Donahue, Geneva, for Angelo Katsigiannis.

James E. Ryan, DuPage County State's Atty., William L. Browers, Deputy Director, State's Attorneys Appellate Prosecutor, Mary E. Gentile, Chicago, for the People.

Justice INGLIS delivered the opinion of the court:

Defendant appeals from convictions of keeping a gambling place (Ill.Rev.Stat.1985, ch. 38, par. 28-3) and three counts of gambling (Ill.Rev.Stat.1985, ch. 38, pars. 28-1(a)(5), (a)(6)). Defendant was sentenced to concurrent terms of one-year probation on each of the convictions, fined $1,000 on his conviction of keeping a gambling place, and $500 on each of his convictions of gambling. On appeal, defendant challenges the sufficiency of the evidence and further contends that the trial court erred by (1) allowing hearsay evidence under the coconspirator's exception of the hearsay rule; (2) failing to hold a hearing to determine whether a defense-subpoenaed witness was entitled to protection under the fifth amendment; and (3) giving defendant an excessive sentence. We affirm.

Defendant, Angelo Katsigiannis, was arrested following a six-month undercover surveillance at the Villa Tap, a Villa Park, Illinois, bar he owned and operated. Officers from the Illinois State Police received information that organized gambling was taking place at the Villa Tap and that a party by the name of "Angelo" was involved. The case against defendant was established primarily through the testimony of Illinois State Police officer Robert Kahn, who acted as a patron of defendant's establishment during the course of the surveillance. Kahn's testimony is summarized as follows.

On June 6, 1985, Kahn was present at the Villa Tap and overheard a conversation between defendant and another patron, Alan Fey, in which they spoke of sports teams, player statistics, and Fey's intention to place wagers on several baseball contests. Fey left momentarily, and Kahn observed defendant subsequently answer a telephone behind the bar. Defendant made notations on a pad of paper while talking on the telephone and was overheard mentioning baseball teams and using the expression "minus nine." After defendant hung up the phone, Kahn observed Fey return from an area of the bar in which a public telephone was located. Defendant and Fey then discussed wagers they both intended to make on several baseball teams. Kahn heard Fey say "I have to get these in," and observed defendant take $.25 out of the cash register and give it to Fey. Fey then made a telephone call on the public telephone and subsequently returned to tell defendant "[t]hey're in." Before leaving the Villa Tap on that date, Kahn obtained two sheets of paper from the top of the pad used by defendant to make notes during his phone call. Kahn turned the two sheets of paper over to the State Police laboratory to raise any impressions existing on those sheets. Testing revealed the name "Rick" along with numerous numbers and symbols including "-9." Kahn testified that based upon his past experience he was familiar with the definition of the term "-9" in gambling parlance. Kahn described the "plus" and "minus" system as being grounded on a formula for bookmakers' odds and a base figure of $100. Kahn testified that although he did not understand the formula itself "-9" represented a wager of $109 to win $100.

On June 11, 1985, Kahn was present at the Villa Tap and had a conversation with Fey. Fey read Kahn baseball and horse racing betting information from several newspapers and asked Kahn if he "wanted anything to go in." Kahn responded that he did, handed Fey a slip of paper with the names of two horses, and told him that he wanted to wager $50 on them. Fey then made a telephone call and subsequently returned to tell Kahn that they "were in." When asked how he should pay his bet, Fey told Kahn that if Fey was not at the Villa Tap on the following day Kahn should "leave the money at the bar with Angelo." Defendant was not present at that time.

On June 12, 1985, defendant, Fey, and Kahn were all present at the Villa Tap when Fey advised Kahn that the horses had lost. Kahn then counted out $50 in the presence of defendant and handed it to Fey. Fey subsequently announced that he was going to call in additional wagers and asked Kahn if he wanted to place a wager. Kahn responded that he did and gave Fey the name of a horse. Kahn subsequently observed Fey make a phone call. The record is not clear whether defendant was present when Fey and Kahn discussed this wager.

On June 13, 1985, Kahn again met Fey at the Villa Tap and paid him $25. Kahn subsequently observed a conversation between defendant and Fey. Fey asked defendant whether he had something for him, to which defendant responded that he did and handed Fey a $10 bill wrapped in a piece of paper. As defendant handed Fey the money and the paper Kahn heard him say "Montreal 10, Cubs 10." Fey took the money and placed the paper on the bar. Kahn later obtained the paper which contained the notation "Larry C. Cubs $10 L. Painter Montreal $10." Later on that same date, defendant asked Kahn if he wanted to participate in a football pool. Kahn placed his initials in two of the squares on a football pool card and paid defendant $2 after defendant asked him for the money.

On June 21, 1985, Kahn was present at the Villa Tap and overheard a conversation between defendant and Fey during which defendant told Fey that he wanted to make a wager on the Chicago Cubs baseball team. Defendant took a piece of paper and wrote out "Cubs, Angelo, one-half, -15," and gave it to Fey, who subsequently took the paper and walked toward the area of the public telephone. Kahn testified that "-15" would normally represent a wager of $115 to win $100. Kahn further testified that "one-half" in bookmakers' parlance means $50.

On June 28, 1985, Kahn was again at the Villa Tap. Defendant told Kahn that he had seen him speaking to another patron, Edward DeLaire, also a suspect in the gambling investigation, and asked Kahn if he was "doing business" with DeLaire. Kahn responded that he was "doing some horses." Kahn met DeLaire at the Villa Tap on July 5, 1985, and at that time settled several wagers he made during the previous week. Also on that date, Kahn spoke to defendant, who told Kahn that he had lost all of his wagers from the previous week. Defendant also showed Kahn a stack of papers which he identified as a pool he was conducting on the premises. On August 9, 1985, Kahn again met DeLaire at the Villa Tap at which time DeLaire paid Kahn $228. Defendant was present on that date; however, the record is not clear whether the payment was made in defendant's presence.

On August 23, 1985, Kahn again went to the Villa Tap. Defendant was present on that date and handed Kahn a football pool card. Kahn placed his initials in several of the squares and returned the card to defendant with payment of $2. At Kahn's request, defendant also provided him with a blank pool card. Also on that date, DeLaire entered the bar and paid Kahn $123.

Defendant was arrested on November 17, 1985. At the time of his arrest, defendant was in possession of $255 and two slips of paper bearing the names of teams in a number of college and professional football contests. Various "plus" and "minus" figures were written next to some of the team names. These items were seized along with several football pool cards. No testimony was given regarding the significance of the figures appearing on the two slips of paper. Defendant stated that the money was his own and he intended to use it to open up the bar. Defendant was charged by information with one count of keeping a gambling place and six counts of gambling.

At defendant's subsequent trial, Kahn acknowledged on cross-examination that he had consumed several drinks during each visit to the bar. Kahn also acknowledged that in the course of his surveillance of DeLaire, he requested that DeLaire meet him at the Villa Tap to conduct transactions. Kahn further stated that he never saw Fey use a private phone at the Villa Tap when placing gambling transactions.

Defendant testified on his own behalf and stated that he was the owner and operator of the Villa Tap. Defendant stated that although he conducted occasional football pools in the bar, he was not aware of any organized gambling occurring on that premises. Defendant and other witnesses also testified that there was not a telephone located behind the bar at the location Kahn described.

Defendant further subpoenaed and called Alan Fey to the witness stand. Fey invoked his fifth amendment protection against self-incrimination and refused to answer any questions. Defense counsel asked the court to ask Fey whether charges against him were pending or disposed of, noting that if charges were not pending against him, Fey could not invoke the fifth amendment. The court noted that Fey's name was mentioned in relation to criminal activity occurring on several dates during the six-month surveillance, and stated that unless the State was going to grant him immunity, Fey properly asserted his privilege. The State announced that it would not grant Fey immunity, and the court excused him as a witness.

The jury returned guilty verdicts against defendant for keeping a gambling place and three counts of gambling, including conducting football pools on June 13, 1985, and August 23, 1985, and possessing gambling instruments on the date of his arrest, November 17, 1985. Defendant was sentenced to concurrent terms of one-year probation on each charge, fined $1,000 on his conviction for keeping a gambling place, and $500 on...