APPEAL from the Circuit Court of Cook County; the Hon. JAMES
M. BAILEY, Judge, presiding.
JUSTICE LINN DELIVERED THE OPINION OF THE COURT:
At the conclusion of a jury trial in the circuit court of Cook County, defendants, Francine Zeidman and Dennis Kendrick, were found guilty of the offenses of delivery of a controlled substance (less than 30 grams of cocaine) (Ill. Rev. Stat. 1979, ch. 56 1/2, par. 1401(b)), and conspiracy (Ill. Rev. Stat. 1979, ch. 38, par. 8-2). In addition, defendant Kendrick was found guilty of possession of a controlled substance with intent to deliver (Ill. Rev. Stat. 1979, ch. 56 1/2, par. 1401(b)). Each defendant was sentenced to four years in the penitentiary and fined $2,000.
The defendants brought separate appeals which have been consolidated. On appeal, defendant Zeidman contends (1) she was not proved guilty beyond a reasonable doubt; (2) she was denied a fair trial by the State's failure to comply with discovery; and (3) the trial court erred in sentencing her to four years because the court failed to determine properly whether a sentence of probation should have been imposed. Defendant Kendrick contends (1) the trial court erred in denying his motion for severance; and (2) he was denied his right to effective assistance of counsel because of a conflict of interest.
We affirm the convictions of both defendants. We reverse the sentences imposed upon the defendants and remand with directions that a new sentencing hearing be held before a judge different from the one who imposed the sentences in this case.
Defendants' arrests and convictions were the result of an undercover operation carried out by the Illinois Department of Law Enforcement. At the time of the alleged offenses, defendant Kendrick was a Chicago police officer and defendant Zeidman was employed by the Illinois Law Enforcement Commission as a public information officer (a non-law-enforcement position).
The principle undercover agent involved in the operation was Mark Hinchy. In August 1978, Hinchy learned from one of his sources, Thomas Buffo, that cocaine could be purchased from defendant Zeidman. Hinchy arranged a meeting with Zeidman in August 1978 to set up a purchase. Hinchy maintained intermittent contact with Zeidman for a month in an effort to purchase cocaine. Zeidman continuously informed Hinchy that she could get cocaine for him but that Hinchy would have to wait until one of her suppliers could get some. In early September 1978, Zeidman told Hinchy that she could get him one-half ounce of cocaine. Zeidman also told Hinchy that her supplier was a police officer.
On September 9, 1978, Hinchy telephoned Zeidman and set up the purchase for that night. By this time, Hinchy had learned that the supplier was a police officer named Hendrick or Kendrick who drove a silver Corvette. Zeidman and Hinchy made arrangements to make the purchase in the early morning hours of September 10, 1978. Zeidman told Hinchy that the purchase would have to be made at that time because her police officer supplier worked the afternoon shift and could not bring the cocaine until after midnight.
The significant events leading up to the purchase of cocaine and the arrests of defendants were as follows. Shortly after midnight, Hinchy went to Zeidman's apartment in a high-rise building on Dearborn Street and gave her an envelope containing $1,350 in marked bills. Zeidman told Hinchy to call her at 2:15 a.m., when she would verify that the cocaine had arrived. Hinchy left and informed several agents who were on surveillance outside the apartment building that he had given Zeidman the money and the supplier would arrive shortly.
At approximately 1:15 a.m., the surveillance agents saw defendant Kendrick park his silver Corvette in front of the apartment building. Kendrick went inside the lobby for a few minutes and then returned to his car. Shortly thereafter, Zeidman and an unidentified woman came out of the lobby and went to the driver's side of Kendrick's car. Most of the surveillance agents were not in a position to see whether anything changed hands between Zeidman and Kendrick; however, one of them was close enough to see Zeidman reach toward the driver's window. This agent could not verify that anything changed hands. Thereafter, Zeidman and the unidentified woman returned to the apartment building. Kendrick drove away.
At 2:15 a.m., Hinchy telephoned Zeidman. She told him the cocaine would be there in five minutes and Hinchy was to pick it up in 20 minutes. At approximately the same time, the surveillance agents saw Kendrick park his Corvette behind the apartment building. Kendrick went into the back of the building and was gone for several minutes before returning to his Corvette and departing. Some of the agents followed him.
At 2:35 a.m., Hinchy arrived at Zeidman's apartment. She showed him the cocaine, which was tucked into a folded piece of paper inside a plastic bag. Hinchy asked for and received permission from Zeidman to use the bathroom. Once inside the bathroom, Hinchy pressed a button on a communication device which signaled to the agents outside that it was time to make an arrest. Hinchy came out of the bathroom and asked Zeidman if she had anything to weigh the cocaine. She said she only had a kitchen scale, and pointed it out to Hinchy. At this time, two agents knocked on the door and announced that they were police officers. Zeidman told Hinchy to get rid of the cocaine. The two agents entered, at which time Hinchy told Zeidman that he was a police officer. Zeidman was arrested, and Hinchy confiscated the cocaine and the scale as evidence.
Thereafter, the agents following Kendrick were told to make an arrest. Kendrick's car was stopped and he was arrested. Kendrick and his car were searched. No cocaine and none of the marked money was found in the search. None of the money was ever recovered.
Besides the above evidence, which was testified to at trial by the agents, an expert also testified that the substance confiscated was cocaine. The expert also said that he found a fingerprint which matched Kendrick's on the piece of paper in which the cocaine had been wrapped. Other evidence showed that Kendrick had been working the 4 p.m. to midnight shift as a Chicago police officer on September 9, 1978. Telephone company records were admitted to show that, on many of the dates Hinchy had contacted Zeidman to arrange a purchase, calls were made from Zeidman's apartment to telephone numbers at two addresses, both registered in Kendrick's name.
Defendant Zeidman did not testify on her own behalf. Defendant Kendrick testified that he had known Zeidman socially for a long time and had gone to Zeidman's place on the day of the purchase because she had invited him to a party. When he arrived the first time and talked to Zeidman outside the building, she told him no one had yet arrived for the party and he should return later. When he returned the second time, he tried to contact Zeidman from the lobby but received no answer, so he left. Kendrick denied ever selling or using cocaine, and denied ever seeing Zeidman using or selling cocaine. He said he had talked to Zeidman on the phone many times before his arrest, but the calls were all social.
The jury found both defendants guilty of delivery of a controlled substance and conspiracy, and found Kendrick guilty of possession of a controlled substance with intent to deliver (defendant Zeidman had not been charged with this offense). The trial court sentenced both ...