People v. Schmitt

• Decision Date: 08 July 1988
• Docket Number: Nos. 85-0697,85-0751,s. 85-0697
• Citation: 122 Ill.Dec. 886,173 Ill.App.3d 66,527 N.E.2d 384
• Parties: , 122 Ill.Dec. 886 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Vernon SCHMITT and Frank Nielsen, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 384

527 N.E.2d 384

173 Ill.App.3d 66, 122 Ill.Dec. 886

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Vernon SCHMITT and Frank Nielsen, Defendants-Appellants.

Nos. 85-0697, 85-0751.

Appellate Court of Illinois,

First District, Fifth Division.

July 8, 1988.

Dissenting Opinion July 15, 1988.

Thomas J. Royce and Kent R. Carlson, Chicago, for defendant-appellant Vernon Schmitt.

James J. McGraw, Joel Gould and Vincent Davino, Chicago, for defendant-appellant Frank Nielsen.

Richard M. Daley, State's Atty. of Cook County (Joan S. Cherry, Peter D. Fischer and Michael D. Krejci, Asst. State's Attys., of counsel), Chicago, for plaintiff-appellee.

Justice PINCHAM delivered the opinion of the court:

Following a bench trial the defendants, Vernon Schmitt and Frank Nielsen, were found guilty of unlawfully delivering a controlled substance, cocaine, to Glenn Schneider on January 5, 1983. (Ill.Rev.Stat.1987, ch. 56 1/2, par. 1401(a).) Schmitt was sentenced to seven years imprisonment and Nielsen was sentenced to nine years imprisonment. The issue relied on by Schmitt, on his appeal, is that the trial court erred in denying his motion to dismiss the indictment against him because the State violated its agreement to release and not prosecute him in return for his self-incrimination and successful assistance to the agents in identifying, obtaining evidence against and arresting his drug source, the codefendant Nielsen. Nielsen argues for reversal of his conviction that the trial court erred when it did not grant his motion for a severance from the trial of his codefendant Schmitt.

Prior to trial, defendant Schmitt filed a motion to dismiss the indictment as to him on the ground that the Illinois Department of Law Enforcement agents promised him that for his cooperation and actual assistance in obtaining evidence against his drug supplier, codefendant Nielsen, the State would release and not prosecute him for his unlawful drug delivery to Schneider. Defendant Nielsen filed a pretrial motion for a severance from the trial of defendant Schmitt on the grounds that Schmitt made numerous post-arrest statements which implicated Nielsen in the commission of the alleged drugs offense and which were inadmissible against Nielsen but on which the State would improperly rely as evidence against Nielsen. Schmitt's dismissal motion was denied, the trial court did not grant Nielsen's motion for a severance and both defendants were tried jointly.

The trial evidence established that on January 5, 1983, agent Schneider, of the Illinois Department of Law Enforcement, Division of Criminal Investigation, while at Schmitt's home purchased 2 1/2 ounces of cocaine from Schmitt for $5,500. Schmitt was promptly arrested by agent Schneider and other agents. After being admonished of his Miranda rights by the arresting agents, Schmitt was asked by them to assist them in obtaining evidence against and apprehending his drug source, for which, according to the agents, they would bring Schmitt's assistance to the attention of the State's Attorney. Conversely, according to Schmitt, for his assistance in apprehending his drug source, Nielsen, the agents promised him that they would release and not prosecute him for his drug delivery to agent Schneider.

In reliance on the agents' promise, the terms of which were controverted, Schmitt told the agents that he received the cocaine from defendant Nielsen, who had brought the cocaine to Schmitt's home earlier that day, that Schmitt had not paid Nielsen for the drugs and that Nielsen was to return to Schmitt's home later for the purchase money. Schmitt called Nielsen on the telephone monitored by the agents and had Nielsen to come to his house. With Schmitt's permission, the agents hid in various parts of the house. Upon Nielsen's arrival, Schmitt engaged Nielsen in incriminating conversations which were overheard by the agents and Schmitt gave Nielsen the money for the drugs which Nielsen had previously delivered to Schmitt and which drugs Schmitt had sold to agent Schneider. Nielsen was promptly arrested by the agents. Schmitt's handwritten signed confession, which related Schmitt's activities, as above stated, was admitted into evidence.

Schmitt testified in his own behalf on his defense. Schmitt admitted that he sold the drugs to agent Schneider, that upon his arrest he told agent Schneider and the other arresting agents that he had obtained the drugs which he sold agent Schneider from the codefendant Nielsen, who had brought the drugs to Schmitt's home earlier that day, that he had not paid Nielsen for the drugs and that Schmitt expected Nielsen to later return to his home for the money for the drugs. Schmitt stated that in reliance on the agents' promise that he would be released and not be prosecuted for his unlawful drug delivery to agent Schneider he cooperated with the agents, called Nielsen on the phone and had Nielsen to return to his house for the drug purchase money, that he engaged Nielsen in self-incriminating conversations of their drug transaction and gave Nielsen money for the drugs within the presence and hearing of the secreted agents who thereupon promptly arrested Nielsen and that he wrote and signed a written confession of his involvement.

On this appeal, defendant Nielsen contends that the trial court erred in denying his severance motion. The State exclusively argued in the trial court that the trial court conducted two separate trials. The trial court agreed and so ruled in denying Nielsen's post-trial motion. The State's sole argument in it's brief before this court is that "the trial court properly granted a severance to defendant Nielsen and * * * a trial court is presumed to consider only competent evidence during a joint trial," and that "the trial court did in fact recognize the severance for evidentiary purposes." The record clearly establishes the contrary. There were not two separate trials. No severance really occurred. The record affirmatively reflects that there was but a single joint trial. A review of the trial sequence and chronology permits no other valid conclusion.

When the cause came on for trial on November 26, 1984, both defendants were simultaneously called and they together appeared before the bar. The trial judge jointly advised them of their right to be tried by a jury and they responded, thusly:

"THE COURT: Mr. Nielsen and Mr. Schmitt, you both understand that you have a right to a trial by jury. That means 12 people would be selected; they would listen to the evidence; and they would determine your guilt or innocence. You can waive your right to a trial by jury and be tried by myself, and I would be the one to listen to the evidence and determine your guilt or innocence. I gather by signing this jury waiver, you wish for me to decide the case, is that correct?

DEFENDANT NIELSEN: Yes.

DEFENDANT SCHMITT: Yes.

THE COURT: All right. You may be seated."

Thereupon, the prosecutor made a motion to sequester the witnesses during the trial and the motion was granted. The prosecutor then waived opening statement. The attorney for the defendant Schmitt made his opening statement, after which the attorney for the defendant Nielsen waived opening statement.

Agent Glenn Schneider was called as the State's first witness. Agent Schneider related on direct-examination his purchase of cocaine from Schmitt at Schmitt's home, Schmitt's arrest and cooperation with the agents in luring his drug supplier, the codefendant Nielsen, to Schmitt's home, Schmitt's self-incriminating inducement of Nielsen into making admissions of his illegal drug involvement with Schmitt which were overheard by the agents, and Nielsen's arrest by the agents.

Schmitt's attorney cross-examined agent Schneider, not to discredit or disprove agent Schneider's direct testimony of Schmitt's drug sale to agent Schneider, but rather to further substantiate agent Schneider's direct testimony of the sale and to establish the agents' promise to Schmitt to release and not prosecute him, and Schmitt's resultant cooperation with the agents in inculpating Nielsen in Schmitt's drug sale and Nielsen's arrest by the agents.

Nielsen's attorney did not cross-examined agent Schneider, but there was further redirect-examination of Schneider by the prosecutor and further recross-examination of him by Schmitt's attorney.

Agent Osborne Curtis was called as the State's next witness. Agent Curtis testified on direct-examination that he surveilled the defendant Schmitt on January 5, 1983, at Schmitt's home, that Schmitt attempted to flee out a window and was arrested and that he recovered the money given Schmitt by Schneider for the narcotics purchase from the yard next door to Schmitt's residence where Schmitt had surreptitiously discarded it. Only Schmitt's attorney cross-examined agent Curtis.

Agent David C. Hamm was the next witness called by the State. He related that he supervised the Schmitt-Schneider narcotics purchase-sale investigation, that he observed agent Curtis enter Schmitt's residence, that when he heard the prearranged radio arrest signal from agent Schneider, he entered Schmitt's residence and observed through an open window other agents on the ground level. Agent Hamm went to the side of the house where he observed Schmitt in the custody of other agents. Agent Hamm further related that Schmitt was given his Miranda admonitions and that Schmitt told the agents that he wished to cooperate. Schmitt told them that he had received the cocaine he had sold agent Schneider from Frank Nielsen, who brought it to Schmitt's home earlier that day and for which Schmitt had not paid Nielsen; that Schmitt was expected to call Nielsen, who would come over and get his money for the purchase price of the drugs. Agent Hamm stated that Schmitt told them that he was willing to make the telephone call to Nielsen with the agents present in his home. Hamm and Schmitt agreed that Schmitt...