Appeal from the Circuit Court of Du Page County; the Hon.
Robert Nolan, Judge, presiding.
JUSTICE STROUSE DELIVERED THE OPINION OF THE COURT:
The defendant, Michael Zambetta, was convicted of unlawful delivery of a controlled substance, cocaine, in violation of section 401 of the Illinois Controlled Substances Act (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 Du Page 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, 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 co-defendant, 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.
• 1 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, 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. (People v. Lee (1981), 87 Ill.2d 182, 188; see, e.g., People v. Braune (1936), 363 Ill. 551, 553-54.) 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; see also People v. Goodman (1979), 75 Ill. App.3d 369, 372.) The court in Lee called for a severance only when the defendants could not realistically be aligned on the same side. (People v. Lee (1981), 87 Ill.2d 182, 187.) Thus, without truly inconsistent and antagonistic defenses, a severance must be disallowed. 87 Ill.2d 182, 187-88.
• 2 People v. Daugherty (1984), 102 Ill.2d 533, 544, suggests that antagonism exists when each defendant denies his participation while simultaneously blaming his co-defendant. 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.) 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." (People v. Daugherty (1984), 102 Ill.2d 533, 547, citing People v. Braune (1936), 363 Ill. 511, 557.) 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.
• 3, 4 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 co-defendant's testimony implicated the defendant in the drug transaction, it did not exonerate his own participation. The co-defendant testified that he and Mannarino arranged for a cocaine transaction in which the defendant was the supplier. The co-defendant at no time pinned the blame exclusively on the defendant, nor did the defendant blame the co-defendant. 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 co-defendant 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.) Thus, following the standards expressed in Lee and Daugherty, the defendant's defenses are not "classically" antagonistic so as to warrant a severance.
• 5 Even if the defendant and co-defendant's defenses are antagonistic, denial of the severance motion is proper because the co-defendant's testimony was merely cumulative of the evidence presented at trial. (See People v. Lee (1981), 87 Ill.2d 182, 189.) Independent of the co-defendant'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 co-defendant's testimony. Fieroh testified the defendant asked Mannarino where the money was for the cocaine deal. After stating that he and his co-defendant were dealing with Mannarino and not Fieroh, the defendant directed the co-defendant 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 co-defendant 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 testimony of both Mannarino and Fieroh established that Fieroh paid for the cocaine and that the co-defendant delivered it at the defendant's direction and approval to Mannarino, who delivered it directly to Fieroh.
• 6 The defendant next asserts the production and identification of the informant was critical in preparing an entrapment defense. The defendant urges that the informant was both a witness and key participant in the drug transaction. This allegation is entirely unsupported by the record. The record reveals the informant arrived with Agent Fieroh at the location of the sale but remained in Fieroh's car for the duration of the transaction. Fieroh testified the informant sat facing the opposite direction in Fieroh's parked car, over 100 feet away from the Cadillac where the sale was made. He was not within hearing range of the transaction. Further, not only did the transaction occur at night, which would have impaired the informant's vision, but also both Mannarino and Svendson stood near to the transaction so as to have blocked the informant's vision.
The facts herein do not coincide with the facts in cases requiring disclosure of the informant's identity. The Supreme Court in Roviaro v. United States of America (1957), 353 U.S. 53, 1 L.Ed.2d 639, 77 S.Ct. 623, held where the informant had taken a material role in bringing about the petitioner's possession of heroin, the identity of the informant must be tendered to the petitioner for preparation of his defense. The court believed the informant to have taken a material role when the informant was the sole participant with the petitioner in the transaction charged, might be a material witness as to whether the petitioner knowingly transported the drugs as charged, and was the only witness in a position to amplify or contradict the testimony of the government witness. (353 U.S. 53, 64-65, 1 L.Ed.2d 639, 647-48, 77 S.Ct. 623, 629-30.) Thus, disclosure of the informant's identity was required.
In People v. Lewis (1974), 57 Ill.2d 232, the supreme court enunciated the Roviaro standard holding that disclosure would be required when an informer acted in a dual role of informer-participant. (57 Ill.2d 232, 235.) In Lewis, only three persons were present at the alleged drug sale, i.e., the purchasing agent, the defendant, and the informer. (57 Ill.2d 232, 235.) The court stated since the informer was the only witness in a position to amplify or contradict the testimony of the government witness, the defendant should have been allowed to interview him. People v. Lewis (1974), 57 Ill.2d 232, 238; see also ...