People v. Zambetta

• Decision Date: 29 April 1985
• Docket Number: No. 83-468,83-468
• Parties: , 87 Ill.Dec. 695 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Michael ZAMBETTA, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 821

477 N.E.2d 821

132 Ill.App.3d 740, 87 Ill.Dec. 695

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Michael ZAMBETTA, Defendant-Appellant.

No. 83-468.

Appellate Court of Illinois,

Second District.

April 29, 1985.

George P. Lynch, Chicago, Locke, Tellefsen & Learn, Philip F. Locke, Glen Ellyn, for plaintiff-appellee.

J. Michael Fitzsimmons, State's Atty., Barbara A. Preiner, Wheaton, Phyllis J. Perko, State's Attys. Appellate Service Com'n, Raymond L. Beck, Elgin, for defendant-appellant.

STROUSE, Justice:

The defendant, Michael Zambetta, was convicted of unlawful delivery of a controlled substance, cocaine, in violation of section 401 (Ill.Rev.Stat.1979, ch. 56 1/2, par. 1401(a)(2) ), possession of a controlled substance (Ill.Rev.Stat.1979, ch. 56 1/2 , par. 1401(b) ), and armed violence (Ill.Rev.Stat.1979, ch. 38, par. 33A-2) after a jury trial in DuPage County. After denying the defendant's motion for judgment of acquittal and renewed motion for mistrial, the trial court sentenced the defendant to prison terms of three, six, and eight years to run concurrently, and fined him $5,000 plus court costs. He appeals raising five assignments of error: (1) whether the trial court properly denied defendant's motion for severance, (2) whether the trial court properly denied defendant's motion to identify or produce the informant, (3) whether the defendant was properly required to elect a defense prior to trial, (4) whether the State proved the defendant's guilt beyond a reasonable doubt, and (5) whether the trial court erred in denying the defendant's motion for a mistrial after an allegedly prejudicial newspaper article was read by jurors during the trial.

On the evening of November 3, 1980, Agent Wayne Fieroh traveled to the home of Donald Svendson, 401 Spring Hill Road, Roselle, Illinois, for the purpose of purchasing cocaine. He was accompanied by Jason "Slick", a government informant. Upon Fieroh's arrival, Svendson approached their car and indicated to Fieroh the cocaine had not arrived. Shortly thereafter, a vehicle driven by Antonio Mannarino pulled into the driveway behind Fieroh's car. Mannarino advised Fieroh that his "uncle" would arrive shortly driving a Cadillac, and in exchange for Fieroh's $4,400, would give Mannarino the cocaine.

Minutes after Mannarino's arrival, a yellow Cadillac, driven by the defendant, in which codefendant, Joseph Irmen, was a passenger, pulled alongside the street curb in front of Svendson's home. Fieroh and Mannarino headed down to the end of the driveway toward the Cadillac while Svendson straggled a few feet behind. The defendant, Irmen, Fieroh, Mannarino and Svendson participated in or were in a position to observe and participate in the ensuing drug transaction. Jason "Slick" remained in Fieroh's car more than 100 feet away and was neither present nor participated in any further conversation that evening. The defendant, Irmen and Mannarino had just left defendant's apartment where they obtained the cocaine used in the drug transaction.

While seated in the Cadillac, the defendant and Irmen conversed with Mannarino and Fieroh, who stood outside the car next to the rolled-down passenger window. When Fieroh asked for the cocaine, defendant responded, "We're not dealing with you, we're dealing with him," (indicating Mannarino). When Fieroh renewed his request for the cocaine, the defendant stated to Irmen, "Go ahead and give him the package." Irmen then handed a white envelope containing cocaine to Mannarino, who in turn handed it to Fieroh in exchange for $4,400. Mannarino then hopped into the Cadillac with the defendant and Irmen and drove away. Minutes later, the three were pulled over and arrested.

After the arrest, as the defendant, Irmen and Mannarino stood outside the Cadillac, a fully-loaded revolver in a holster was discovered in the Cadillac's glove compartment. The testimony revealed the glove compartment was unlocked when the car was searched. An arresting officer testified the defendant made no move to acquire the revolver.

After the parties' opening statements, the defendant moved for severance claiming Irmen's opening statement revealed a defense antagonistic to the defendant's. The court denied this motion. The defendant maintains he was denied a fair trial by the court's refusal to sever his case from Irmen's. The defendant's motion to sever outlined his defense, that the State could not prove him guilty beyond a reasonable doubt. The defendant contended Irmen would testify that Irmen neither provided nor sold the drugs, but that defendant both supplied the drugs and ordered Irmen to transfer the drugs. In fact, Irmen testified that defendant handed him an envelope containing cocaine and instructed him to hand it over to Mannarino. Irmen further testified that he told Fieroh to hand over the money to either the defendant or Mannarino, and not him. He claimed that throughout the transaction, he didn't know a drug deal was actually "going down" but that he only responded to the defendant's orders. Irmen asserted he was involved in the transaction to receive repayment of a loan made to Mannarino. The defendant neither testified nor introduced evidence at trial.

The State argues that the defendant's failure to state why the defense would be antagonistic precludes his right to a severance. The defenses were antagonistic; Irmen's testimony was not critical to the case against the defendant but was merely cumulative, repeating testimony already received from Fieroh and Mannarino.

The court in People v. Lee (1981), 87 Ill.2d 182, 57 Ill.Dec. 563, 429 N.E.2d 461, established that prior to allowing a severance, a detailed and specific showing of antagonism, including a detailed recitation of what the defendant's defense would be, must be made to the court. (87 Ill.2d 182, 188, 57 Ill.Dec. 563, 429 N.E.2d 461; see, e.g., People v. Braune (1936), 363 Ill. 551, 553-54, 2 N.E.2d 839.) The defendant's "mere apprehension" and conclusion that a conflict exists does not meet the Lee standard. (See People v. Yonder (1969), 44 Ill.2d 376, 386, 256 N.E.2d 321; see also People v. Goodman (1979), 75 Ill.App.3d 369, 372, 30 Ill.Dec. 886, 393 N.E.2d 1233.) The court in Lee called for a severance only when the defendants could not realistically be aligned on the same side. (87 Ill.2d 182, 187, 57 Ill.Dec. 563, 429 N.E.2d 461.) Thus, without truly inconsistent and antagonistic defenses, a severance must be disallowed. 87 Ill.2d 182, 187-88, 57 Ill.Dec. 563, 429 N.E.2d 461.

People v. Daugherty (1984), 102 Ill.2d 533, 544, 82 Ill.Dec. 315, 468 N.E.2d 969, suggests that antagonism exists when each defendant denies his participation while simultaneously blaming his codefendant. The facts in Daugherty reveal that in a case based wholly upon circumstantial evidence, severance should have been granted where each defendant accused the other of the crime while professing his own innocence. (102 Ill.2d 533, 545, 82 Ill.Dec. 315, 468 N.E.2d 969.) The closing argument in Daugherty "produced a spectacle where the People * * * stood by and witnessed a combat in which the defendants attempted to destroy each other." (102 Ill.2d 533, 547, 82 Ill.Dec. 315, 468 N.E.2d 969, citing People v. Braune (1936), 363 Ill. 551, 557, 2 N.E.2d 839.) The supreme court in Daugherty concluded that based on the information available to the trial judge, the inherent risk of prejudice was apparent and severance should have been granted. 102 Ill.2d 533, 547, 82 Ill.Dec. 315, 468 N.E.2d 969.

The facts compelling severance in Daugherty are dissimilar to the facts of the instant case. The conflict here bore no resemblance to the outright "finger-pointing" in Daugherty. While the codefendant's testimony implicated the defendant in the drug transaction, it did not exonerate his own participation. The codefendant testified that he and Mannarino arranged for a cocaine transaction in which the defendant was the supplier. The codefendant at no time pinned the blame exclusively on the defendant, nor did the defendant blame the codefendant. Meanwhile, the defendant argued as his defense that he was not guilty because the delivery of cocaine was made to Mannarino rather than to Fieroh as the information charged. He stressed that this fact precluded a finding of his guilt. The court in Lee held where a defendant relies solely upon the State's inability to prove him guilty, and the codefendant testifies the defendant forced him to commit the offense charged, the defendant has not been prejudiced by a joint trial and his motion for severance during trial is properly denied. (People v. Lee (1981), 87 Ill.2d 182, 189, 57 Ill.Dec. 563, 429 N.E.2d 461.) Thus, following the standards expressed in Lee and Daugherty, the defendant's defenses are not "classically" antagonistic so as to warrant a severance.

Even if the defendant and codefendant's defenses are antagonistic, denial of the severance motion is proper because the codefendant's testimony was merely cumulative of the evidence presented at trial. (See 87 Ill.2d 182, 189, 57 Ill.Dec. 563, 429, N.E.2d 461.) Independent of the codefendant's testimony, Mannarino and Agent Fieroh both identified the defendant as the supplier of the cocaine. Mannarino's testimony as to the defendant's role in the delivery of cocaine was consistent with the codefendant's testimony. Fieroh testified the defendant asked Mannarino where the money was for the cocaine deal. After stating that he and his codefendant were dealing with Mannarino and not Fieroh, the defendant directed the codefendant to hand the cocaine to Mannarino who in turn handed it to Fieroh in exchange for $4,400. At the defendant's direction, Mannarino then hopped into the car with defendant and codefendant and drove away. The defendant was implicated in the drug transaction through direct testimony rather than circumstantial evidence as in Daugherty. Although slight inconsistencies exist, the...