APPEAL from the Circuit Court of St. Clair County; the Hon.
JOHN J. HOBAN, Judge, presiding.
MR. JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:
Following a joint trial before a jury in the Circuit Court of St. Clair County, defendant and his co-defendant, Michael Bury, were convicted of delivering more than 30 grams of a substance containing cocaine in violation of section 401(a)(2) of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1977, ch. 56 1/2, par. 1401(a)(2)). On appeal, defendant argues that the trial court erred in denying his motion for a separate trial; that his motion in limine requesting suppression of evidence of cocaine seized from him following his arrest should have been granted; that the evidence failed to prove him guilty beyond a reasonable doubt; and that the State's Attorney's closing argument was prejudicial.
The evidence showed that co-defendant Bury had sold cocaine to an undercover agent of the Division of Investigation, Department of Law Enforcement. According to the agent's testimony, Bury conditioned the sale on his ability to obtain narcotics and consent from his "contact." During negotiations, Bury referred to his contact as a man living in a trailer in Okawville who had voluntarily terminated his telephone service out of fear of being "bugged" and who was involved in the drug business. Defendant's name was never mentioned.
The case against defendant was premised on his accountability for the offense and was based largely on circumstantial evidence. On the day of the transaction, Bury and the agent agreed to meet in a restaurant in St. Clair County. The agent arrived at 7 p.m. Two other undercover officers sat at a neighboring table approximately three to four feet away. Additional agents were stationed in unmarked cars in the restaurant's parking lot. The officers observed defendant drive into the parking lot and wait in his car until Bury and a third person arrived in a separate vehicle. Defendant, Bury, and their companion entered the restaurant together and sat down at the agent's table. Defendant sat directly across from the agent but was never introduced to him and did not speak to him. Bury sat to the agent's immediate left.
After some casual conversation, Bury and the agent left the restaurant to confer about the delivery. The agent suggested that the cocaine's purity be tested before the sale was consummated and offered to drive Bury to meet one of the agent's friends who could analyze it. Bury stated that he could not leave the premises because "my man would freak if I left with his cocaine." The agent then gave Bury 10 marked $100 bills as security and showed him the balance of the agreed upon purchase price. Bury offered to go back into the restaurant to see whether he could make satisfactory arrangements.
The surveilling agents indoors testified that they observed Bury come back to defendant's table and converse with him for three to four minutes. The agents testified that although they could not hear the entire discussion, they heard Bury inform defendant that he was going with the buyer to get more money and would be back shortly. The agents saw Bury lay some money on the table and slide it toward defendant. They saw defendant cover the money with his palm, slide it off the table and put it into his pants pocket, nodding his head affirmatively. After defendant nodded, Bury left the restaurant and went back to the agent's car. The agent drove to a State police office in St. Clair County where Bury was arrested and the cocaine was seized.
After approximately 20 minutes elapsed without Bury's return, defendant and the third man paid their bill and left the restaurant. Defendant was arrested in the parking lot and taken to State police headquarters. A search of defendant at headquarters uncovered the marked money that had been given to Bury and a plastic bag containing some cocaine and a rolled dollar bill.
Neither defendant nor Bury made any written statement to the police. At trial, defendant testified in his own behalf. Bury did not testify and no further defense evidence was produced.
As grounds for severance, defendant argues that Bury's statements to the agent concerning his contact and his place of residence, admitted in evidence, prejudiced him before the jury and that Bury's defense conflicted with his own. The agent's testimony contained some of Bury's references to a "contact" but did not identify defendant by name or conclude that defendant was the person to whom Bury referred. The court admonished the jury that Bury's statements were not admissible against defendant and instructed them in accordance with Illinois Pattern Instruction, Criminal, No. 3.05 (1968), that "any evidence which was limited to one defendant should not be considered by you as to any other defendant."
The statements of Bury made to the agent about his contact and place of residence inferentially implicated Goodman and could be considered hearsay as to defendant. Bury did not testify and was, therefore, not subject to cross-examination by Goodman. Defendant argues that the rule of Bruton v. United States (1968), 391 U.S. 123, 20 L.Ed.2d 476, 88 S.Ct. 1620, governs and that defendant was denied his constitutional right of confrontation. Bruton, however, applies only to the confession or statement of a co-defendant implicating another defendant. In Bruton the court was careful to point out that it was not dealing with other recognized exceptions to the hearsay rule. 391 U.S. 123, 128 n. 3, 20 L.Ed.2d 476, 480 n. 3, 88 S.Ct. 1620, 1623 n. 3.
1 We agree with the State that Bury's references to his "contact" were admissible against defendant under the well recognized rule that admissions of a coconspirator in furtherance of the conspiracy may be used as proof against other conspirators. (See generally 4 Wigmore, Evidence § 1079 (Chadbourn rev. 1972).) We believe the court should not have limited the jury's consideration of Bury's admissions.
2 Before such statements are admissible, however, the evidence must establish a prima facie case of conspiracy independent of the hearsay evidence. (People v. Jackson (1977), 49 Ill. App.3d 1018, 364 N.E.2d 975.) This is largely a matter of order of proof, however. The transaction between Bury and Goodman in the restaurant involving the money and the conversation overheard by the agents was ample proof to make out a prima facie case. Other circumstantial evidence tended to prove that defendant was Bury's contact. He lived near Okawville and once had his telephone removed over fear of eavesdropping.
3 Bury and Goodman were not charged with the offense of conspiracy; however, it is established that it is not necessary that conspiracy be charged in the indictment or information. (People v. Thomas (1976), 38 Ill. App.3d 689, 348 N.E.2d 285.) As to the first basis of defendant's motion for severance, prejudice because of Bury's statements, we believe the motion ill-founded as Bury's statements were properly admissible against Goodman.
The second reason advanced in support of defendant's motion for separate trials was that Bury's defense would conflict with defendant's. Bury, however, advanced no defense; there was no conflict. Goodman's defense was to disassociate himself from Bury's activities. (People v. Davis (1976), 43 Ill. App.3d 603, 357 N.E.2d 96.) The mere apprehension or suggestion of conflicting defenses is insufficient to warrant separate trials. (People v. Miner (1977), 46 Ill. App.3d 273, 360 N.E.2d 1141.) In short, the record ...