People v. Schmitt

• Decision Date: 27 September 1989
• Docket Number: No. 67524,67524
• Citation: 131 Ill.2d 128,137 Ill.Dec. 12,545 N.E.2d 665
• Parties: , 137 Ill.Dec. 12 The PEOPLE of the State of Illinois, Appellant, v. Vernon SCHMITT et al., Appellees.
• Court: Illinois Supreme Court

Page 665

545 N.E.2d 665

131 Ill.2d 128, 137 Ill.Dec. 12

The PEOPLE of the State of Illinois, Appellant, v. Vernon SCHMITT et al., Appellees.

No. 67524.

Supreme Court of Illinois.

Sept. 27, 1989.

Neil F Hartigan, Atty. Gen., Springfield, Richard M. Daley and Cecil A. Partee, State's Attys., Chicago (Terence M. Madsen, Asst. Atty. Gen., Chicago, Inge Fryklund, Joseph G. Howard and Renee Goldfarb, Asst. State's Attys., of counsel), for People.

James J. McGraw, Chicago, for appellee Frank Nielsen.

Justice CALVO delivered the opinion of the court:

Defendants, Vernon Schmitt and Frank Nielsen, were charged in the circuit court of Cook County with unlawful delivery of a controlled substance to Glenn Schneider on January 5, 1983, in violation of section 401(a)(2) of the Illinois Controlled Substances Act (Ill.Rev.Stat.1983, ch. 56 1/2, par. 1401(a)(2)). Pursuant to agreement of the parties, defendants were tried simultaneously by the court with the understanding that evidence admissible only as to defendant Schmitt would not be considered against defendant Nielsen. Defendants were found guilty and, following the trial court's denial of their post-trial motions, they appealed. The appellate court, with one justice dissenting in part, reversed defendant Nielsen's conviction and granted him a new trial. (173 Ill.App.3d 66, 122 Ill.Dec. 886, 527 N.E.2d 384.) Schmitt's case was remanded with directions. The State sought leave to appeal the result only as to defendant Nielsen, and we granted the State's petition.

Prior to trial, Nielsen moved for a severance of his case from that of Schmitt. Nielsen alleged that Schmitt had given written and oral statements implicating Nielsen and that their theories of defense were antagonistic. The State filed a response in opposition to the motion. No ruling was procured on the motion prior to the commencement of trial. In the midst of the first witness' testimony, Nielsen's attorney noticed the omission and brought it to the court's attention. By agreement of all parties concerned, the court proceeded as if the cases had been severed, conducting simultaneous but separate bench trials. During the course of the trial, Nielsen's attorney repeatedly objected to testimony regarding Schmitt's statements implicating Nielsen, lodging a continuing objection to such statements, and, anticipating Schmitt's testimony in his own defense, reminded the court that it had to consider that testimony only "against him, not against Mr. Nielsen." The court, time and again, sustained counsel's objections and assured Nielsen's counsel:

"Throughout, the Court is not considering statements made by Schmitt with regard to Nielsen."

Given the court's rulings, which removed Schmitt's oral and written statements directly implicating Nielsen from consideration, the circumstantial evidence against Nielsen came from agents who participated in the drug investigation resulting in Nielsen's arrest. They testified that Schmitt moved back the time for the drug transaction to 4:30 p.m., rather than 4 p.m. as originally scheduled, because his "source" would be at his residence at 4 p.m. Subsequently, at 4 p.m., Nielsen and a female companion arrived at Schmitt's residence shortly before the drug transaction in question, went inside, stayed approximately two minutes, and then departed in Nielsen's automobile. Thereafter, agent Schneider arrived at Schmitt's residence and purchased approximately 2 1/2 ounces of cocaine from Schmitt for $5,500. Schmitt was promptly arrested and agreed to assist the agents in apprehending his drug source. Schmitt placed a telephone call, in which his end of the conversation was recounted by agent Hamm as follows:

"It is me, Vern. [pause] It's okay, you can come on over; I've got your money; he's gone. [pause] When will you be here? Okay."

Minutes later, the agents were informed by radio that Nielsen was approaching the residence in his automobile. The agents hid at various locations throughout the residence and awaited Nielsen's arrival. A short time later, Nielsen arrived and, in the conversation with Schmitt that followed, made several statements which, at the very least, indicate Nielsen was possessed of substantial knowledge of cocaine trafficking and had had dealings with Schmitt in the past.

Nielsen was overheard to say, "Just make sure you know who you are dealing with." In response to Schmitt's statement indicating his customer was satisfied, Nielsen replied, "He should have been satisfied because it was good rock from Bolivia." Nielsen provided Schmitt with a history of cocaine processing, warned Schmitt to always dust off his scales after use, and suggested Schmitt keep records of his transactions using abbreviated dollar values and code names for his customers. Nielsen said he used the word "gas" as Schmitt's code name. The agents also overheard Nielsen counting money and discussing the division of the $5,500. After the money was divided, Nielsen began to leave and was then arrested.

Subsequently, Nielsen's apartment was searched pursuant to his consent. Inside, agents discovered small vials with screw-on caps, a scale, some leafy matter, and three small notebooks in which the word "gas" appeared in conjunction with the dates December 29 and 30, 1982, and the numeric notations 550 and 1100.

Following presentation of the State's case, including Schmitt's written statement naming Nielsen as his supplier, which was specifically "offered against defendant Schmitt," Nielsen's attorney moved for a directed verdict, arguing there was no evidence to connect Nielsen to the "transaction of January 5th." Nielsen's motion was denied. The court then entertained arguments by the defense and the State, following which the court announced that it would defer pronouncement of its finding in Nielsen's case until after the conclusion of Schmitt's testimony:

"I want to assure you, I am ready to decide the case; but, under the circumstances, I do not wish to give my decision until after I have heard the rest of the Schmidtt [sic ] case."

Nielsen and his attorney requested and received permission to leave the courtroom during Schmitt's testimony. Schmitt testified in support of his defense of entrapment and his contention that law enforcement officials had reneged on a promise not to prosecute him for his drug sale to agent Schneider if he "set up" his drug source.

After presentation of all the evidence in both cases, the court found Schmitt and Nielsen guilty, noting:

"We have had two separate trials. I have reviewed all the evidence in each, and made the appropriate separation, and seen to it that no evidence with respect to one defendant could be used against the other defendant."

In argument upon Nielsen's post-trial motions, Nielsen's counsel argued that there should have been separate trials and that the court considered evidence admissible only as to Schmitt against Nielsen. Counsel raised the court's delayed ruling in Nielsen's case as evidence of the court's error. The court denied Nielsen's motions, and in so doing, the following colloquy ensued:

"THE COURT: Mr. Johnson, you raised the fact that the Court not decide [sic ] the Nielsen case after it was argued, and instead wait [sic ] until having concluded the Schmitt case. I note from the charge, as you are aware, that the charge against Mr. Nielsen was an accountability charge in that he was accountable for the delivery of the substance to Mr. Snyder by Mr. Schmitt.

So, accordingly logic caused me to believe that he [sic ] should first reach a verdict on Schmitt in order to be certain that I was correct in reaching a verdict on Nielsen.

MR. JOHNSON: Well, Judge, I don't think the law requires that even on the accountability theory that the principal be found guilty. The principal doesn't have to be found guilty on the theory of accountability.

THE COURT: That is true.

MR. JOHNSON: So what I'm saying is the fact that Mr. Nielsen rested his case, at that point there was no more evidence presented on behalf of Mr. Nielsen nor the State presented any other evidence against Mr. Nielsen, and at that point I believe the Court should have ruled, because at that point all the Court was going to hear was additional evidence on the Schmitt case, which was a severed case * * *.

THE COURT: And my belief was that it was necessary for the Court to be certain as to the separation of the cases, and that's why I wanted to see to it that I had all the evidence in on the Schmitt case to make sure that the reasons for my ruling were in fact separate, and I would say this, too, on the finding of guilty with respect to Nielsen: I substantially rely on the conversation in the kitchen and the statement that Mr. Nielsen made during that conversation in the kitchen that the agent overheard, and then the other physical evidence that was introduced with respect to Mr. Nielsen's case. So I was satisfied in that regard that the basis for the decision was settled.

MR. JOHNSON: Judge, even if the Court brings out the book, some of the physical evidence is made stronger evidence from the Schmitt case. If not for the evidence of the Schmitt case the nicknames and numbers would have been more up in the air and made a weaker case. So what I'm saying is there was an enforcement in the Schmitt case, and if the Court had its doubts at the close of the Nielsen case it was at that time the Court should have ruled and would not have had to wait--

THE COURT: Okay. I did not have a doubt at that time, and I waited to make sure that none would arise later because of anything else that might have come in that might have raised a doubt. I did not have a doubt in my mind at the close of the Nielsen case."

Nielsen appealed, and the appellate court reversed and remanded for a new trial, with one justice dissenting. (173 Ill.App.3d 66, 122 Ill.Dec. 886, 527 N.E.2d 384.) The majority of the appellate court panel concluded that "[r]efusal to grant Nielsen a...