APPEAL from the Circuit Court of Lake County; the Hon. JOHN L.
HUGHES, Judge, presiding.
JUSTICE NASH DELIVERED THE OPINION OF THE COURT:
Defendants, Richard Cart and Michael Casamassina, were jointly tried by jury and convicted of conspiracy to commit murder; they were each thereafter sentenced to seven years imprisonment. We have consolidated their separate appeals for opinion.
Defendants each contend on appeal that: (1) the court should have severed their cases for trial; (2) his sixth amendment right to confront witnesses was abridged when each defendant's statement inculpating the other was admitted in evidence; (3) they were denied a fair trial when the court failed to conduct a hearing to determine whether prejudice resulted when a juror was telephoned by a court bailiff; and (4) the State failed to prove their guilt beyond a reasonable doubt. Cart additionally contends his statements to police should have been suppressed on grounds he was arrested without probable cause and questioned before being given Miranda warnings, and, that his co-defendant's admissions should have been excluded from evidence on grounds they were hearsay. Casamassina assigns as further error prejudicial closing argument by the State.
Defendants were indicted together with David Quinn and Ruth Cohn for conspiracy to murder Mrs. Cohn's estranged husband, Stuart Cohn. The primary evidence introduced in trial against each defendant consisted of the admissions each made to investigating officers regarding the roles they had played directed toward the killing of Stuart Cohn at the request of his wife. Casamassina gave recorded statements to officers in which he related that Mrs. Cohn, with whom he had become acquainted while doing repair work on the Cohn home, told him she wanted her husband dead and asked whether he could arrange it. Casamassina informed her he could do so, and they discussed injecting Mr. Cohn with an animal euthanasia solution and also blowing up his car by pouring an iodine preparation into the battery of his car. In his statement Casamassina related that in these discussions she informed him of her willingness to pay almost anything to have her husband killed. Casamassina then called co-defendant Cart, who is his half-brother and then lived in Pennsylvania, with Mrs. Cohn present. He advised Cart that someone wanted a killing, Cart responded it would cost $5,000 plus expenses for plane fare for two people. The next day Mrs. Cohn gave Casamassina $5,300 in cash, $300 of which he sent to Cart for plane fare. Cart thereafter came to Highland Park, Illinois, with defendant David Quinn, and they stayed at Casamassina's house. Most of the remaining $5,000 was given to Cart by Casamassina, who acquired a rifle with a scope, a handgun, knives and ammunition. The men also assembled material for use in a pipe bomb. On the evening of December 5, 1979, the three men went to the Cohn home, and Cart entered it while Casamassina and Quinn watched from the street. After Cart entered the house the other two became uneasy when they saw a police car and left the scene, returning home. Shortly thereafter Casamassina received a telephone call from Cart telling him to bring the gun to the Deerfield police station and he did so.
Cart's recorded statements to police were also admitted in evidence. In them he stated he received telephone calls from his brother, Casamassina, who inquired whether he or anyone he knew would be interested in killing someone. Cart related that when he learned the price was $5,000 and expenses up front he became interested. Cart recruited David Quinn, offering him $300, and after receiving plane fare from Casamassina by Western Union the two men flew to Illinois. Casamassina gave Cart $4300 at the airport and he subsequently talked to Mrs. Cohn on the telephone and discussed possible methods of killing Mr. Cohn. Mrs. Cohn also agreed to pay any of his additional expenses incurred and stated to him she wished the death to look like an accident because of a double indemnity insurance policy. The men purchased a .25-caliber automatic pistol for $200, and Quinn furnished a rifle; Cart also purchased a CB radio and walkie-talkie. The men also demanded an additional $2500 which Mrs. Cohn agreed to pay. In his statements Cart related that he drove over to the Cohn home on the evening of December 5 with Casamassina and Quinn following in another automobile. Cart then had the pistol and the others had the rifle in their car and they used the walkie-talkies to keep in communication. In relating these matters to the police, Cart denied that he had any actual intent to murder Mr. Cohn but that his efforts which appeared to be so directed were intended only as a "scam" in order to get money from the Cohns. He also stated that neither Casamassina nor Quinn were aware of his real purpose and that he was simply leading them on.
Evidence was also introduced in trial that Mr. Cohn had received a telephone call on December 5 and the unidentified caller (Cart) said he had tapes of conversations with Mrs. Cohn for which Mr. Cohn would reward him. Mr. Cohn was interested as he believed the tapes were related to their pending divorce action, but he was also fearful because his wife had made an attack on his life the previous year. Mr. Cohn called the police and two officers were waiting inside the door when Cart arrived at 9 that evening. The armed officers identified themselves to Cart and frisked him, finding he carried no weapons. Cart identified himself by another name, which the officers could not verify, and they then inquired why he was at the Cohn home. Cart responded, at some length, that he knew of a plot to kill Mr. Cohn after overhearing a conversation and could locate the gun which was to be used and turn it over to the officers. Cart made a phone call, and Casamassina subsequently brought a pistol to the police station in a paper bag.
Cart accompanied the officers to the police station and both defendants were formally placed under arrest and advised of their Miranda rights, thereafter giving the statements to the officers to which we have referred. In a search of Casamassina's house, to which he consented, the officers recovered a rifle, knives, iodine, syringes and an euthanasia solution. Casamassina cooperated with the officers and obtained an additional payment from Mrs. Cohn, who was then also arrested. The cases of Mrs. Cohn and Quinn were severed for trial, with each later entering a plea of guilty to the offense of conspiracy to commit murder. See People v. Cohn (1980), 91 Ill. App.3d 209, 414 N.E.2d 543.
Neither defendant testified at trial. Cart presented no evidence, and Casamassina offered evidence that while in the county jail he had been given aspirin and thorazine daily. A psychiatric report of an examination of Casamassina was admitted in evidence which stated he was able to appreciate right from wrong but had an impairment of functional judgment.
We consider first defendants' contentions that the court erred in denying their motions to sever their cases for trial.
• 1, 2 In considering the decision of a trial court denying severance, a reviewing court will look only to the petitions filed by defendants and the matters alleged therein and not to the subsequent happenings at trial. (People v. Yonder (1969), 44 Ill.2d 376, 386, 256 N.E.2d 321, 327, cert. denied sub nom. Guido v. Illinois (1970), 397 U.S. 975, 25 L.Ed.2d 270, 90 S.Ct. 1094; People v. Brophy (1981), 96 Ill. App.3d 936, 945, 422 N.E.2d 158, 166.) While the written petitions filed by defendants do not appear in the record, it is apparent from the transcript of the hearing held on their motions that the trial court was apprised of the grounds upon which they were asserted, thus preserving them for appeal. People v. Powell (1981), 95 Ill. App.3d 93, 98, 419 N.E.2d 708, 712; People v. Jones (1980), 81 Ill. App.3d 724, 728, 401 N.E.2d 1325, 1328.
• 3, 4 It is the general rule that jointly indicted co-defendants should be tried together unless circumstances exist requiring that their cases be severed to insure each defendant a fair trial. (E.g., People v. Lindsay (1952), 412 Ill. 472, 107 N.E.2d 614.) This rule has been particularly adhered to in conspiracy cases, absent a specific demonstration of the most compelling prejudice and a clear abuse of discretion by the trial court in denying a severance. (People v. Moore (1978), 65 Ill. App.3d 712, 719, 382 N.E.2d 810, 816, cert. denied (1980), 444 U.S. 1043, 62 L.Ed.2d 729, 100 S.Ct. 729.) In general, severance should be granted where the defendants make a specific showing they have truly conflicting and antagonistic defenses marked by opposition, hostility, antipathy or discord (People v. Lee (1981), 87 Ill.2d 182, 188; People v. Davis (1976), 43 Ill. App.3d 603, 610, 357 N.E.2d 96, 101-02, appeal denied (1977), 65 Ill.2d 578); mere apprehensions that the defenses may prove conflicting are insufficient. (People v. Murphy (1981), 93 Ill. App.3d 606, 609, 417 N.E.2d 759, 761; People v. Nickson (1978), 58 Ill. App.3d 470, 482, 374 N.E.2d 804, 812.) However, when a motion for a separate trial is based on the fact that a co-defendant's admissions implicate the moving defendant, a severance will ordinarily be granted unless the prosecutor declares that such admissions will not be offered in evidence at trial or that there will be eliminated therefrom all reference to the party seeking severance. People v. Miller (1968), 40 Ill.2d 154, 158, 238 N.E.2d 407, 409, cert. denied (1968), 393 U.S. 961, 21 L.Ed.2d 375, 89 S.Ct. 401; People v. Clark (1959), 17 Ill.2d 486, 490, 162 N.E.2d 413, 416; People v. McVay (1981), 98 Ill. App.3d 708, 715, 424 N.E.2d 922, 926-27.
• 5 In this case, however, neither defendant established at the hearing that his defense was antagonistic to that of his co-defendant. The record discloses that each defendant admitted doing the acts which formed the basis for the charge of conspiracy to commit murder but that each denied they acted with the requisite mental state, an intent that Mr. Cohn be murdered. The trial court was informed that Cart's defense would be that he only intended to sell information rather than kill Mr. Cohn; Casamassina based his defense on the grounds that he lacked the required intent in light of his impaired functional judgment. Neither defendant blamed the other while completely denying his own complicity and under these circumstances the court did not err in determining their defenses were not antagonistic. See People v. Lee (1981), 87 Ill.2d 182, 187; People v. Colon (1979), 69 Ill. App.3d 1021, 387 N.E.2d 956.
• 6 Defendants also assert that the court erred in denying severance on the grounds that in their respective statements given to the police each defendant imputed to the other an intent to carry out the plan to murder Mr. Cohn. Cart had told the police that while he was personally only attempting to secure money from the Cohns that Casamassina was not aware of this fact and thought they were actually going through with the murder plot. In his statement, Casamassina commented that Cart was in big trouble and had planned to kill Mr. Cohn. At the hearing of the motion to sever, the State's Attorney neither promised to withhold these statements from evidence nor to eliminate reference to the other defendant. The court was therefore in error in not granting the motions for severance when made. (See, e.g., People v. Clark (1959), 17 Ill.2d 486, 162 N.E.2d 413.) Nevertheless, we must determine whether on this record that error requires a reversal for new trials.
In similar circumstances this court has analyzed a defendant's situation in terms of the extent his own statement implicates himself and substantiates admissions of a co-defendant which would not have been in evidence had there not been a joint trial. (See People v. Colon (1979), 69 Ill. App.3d 1021, 387 N.E.2d 956; People v. Moore (1978), 65 Ill. App.3d 712, 382 N.E.2d 810, cert. denied (1980), 444 U.S. 1043, 62 L.Ed.2d 729, 100 S.Ct. 729.) In Casamassina's case, he admitted having agreed with Mrs. Cohn to arrange her husband's murder and also to doing certain acts in furtherance of that plan. His statement both inculpated himself and substantiated Cart's similar admissions. While Cart's statement that Casamassina was not aware of Cart's "scam" did impute to Casamassina an intent that the murder actually be committed, it is apparent that Casamassina's criminal intent, an essential element of conspiracy, could also have been readily inferred from his own acts, admissions and the surrounding circumstances. (People v. Cohn (1934), 358 Ill. 326, 331, 193 N.E. 150, 153.) We conclude that the evidence of Casamassina's complicity found in his own admissions and corroborating evidence was sufficient to sustain his conviction and the inclusion of that portion of Cart's statement implicating Casamassina was harmless error beyond a reasonable doubt not requiring reversal.
In defendant Cart's case the most damaging portion of Casamassina's statement was not introduced at trial. Casamassina's comment that Cart planned to kill Mr. Cohn was deleted when offered to the jury and was then consistent with Cart's own version of the matter. We conclude that neither Casamassina nor Cart was denied a fair trial, under these circumstances, by the admission of the defendants' corroborating statements in evidence. Cf. People v. Ross (1968), 41 Ill.2d 445, 244 N.E.2d ...