APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION
516 N.E.2d 573, 163 Ill. App. 3d 180, 114 Ill. Dec. 418 1987.IL.1626
Appeal from the Circuit Court of Cook County; the Hon. Michael Toomin, Judge, presiding.
JUSTICE BUCKLEY delivered the opinion of the court. CAMPBELL and MANNING, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BUCKLEY
Following a jury trial, defendant John Threzzy was convicted of delivery of over 30 grams of cocaine (Ill. Rev. Stat. 1983, ch. 56 1/2, par. 1401(a)(2)), possession of a controlled substance with intent to deliver (Ill. Rev. Stat. 1983, ch. 56 1/2, par. 1401(a)(2)), armed violence (Ill. Rev. Stat. 1983, ch. 38, par. 33A-2), and conspiracy with intent to deliver (Ill. Rev. Stat. 1983, ch. 38, par. 8-2(a); ch. 56 1/2, par. 1401(a)(2)). Judgment was entered only on the delivery charge, and defendant was sentenced to 15 years in the penitentiary. On appeal, defendant contends that his convictions should be reversed on the ground that he was denied the opportunity to be represented by the counsel of his choice and that his motion for severance was improperly denied. For the following reasons, we reverse and remand for a new trial.
At trial, the prosecution presented the testimony of Agent John Mueller, Agent Art Martinez, Agent Pat Lawton, Scott Ando, Officer Roland Carlson, and Arrila Pora, which established the occurrence of the following events. On May 18, 1984, defendant telephoned Agent Mueller and agreed to sell him 10 ounces of cocaine at $1,750 per ounce. Consequently, at 5 p.m. that evening, Agents Mueller and Martinez drove to Clark and Pratt to meet defendant. When they arrived, defendant was standing on the southeast corner of the intersection conversing with his codefendant, Robert Ameniero. Mueller and Martinez pulled into a nearby McDonald's parking lot, at which time defendant approached the agents and told them his "connect" wasn't home, but he would be back at 7:30 p.m. to complete the transaction.
Mueller and Martinez returned to the scene at 7:30 p.m., and once again, defendant was standing on the corner of Clark and Pratt. At about 8 p.m., Ameniero's car arrived, and defendant leaned in the passenger window momentarily. Shortly thereafter, the two drove away, and defendant returned by foot minutes later. Upon his return, the agents approached defendant, and defendant told them that he only had eight ounces of cocaine, so the price would be $14,000. Subsequently, Martinez and defendant entered Martinez' vehicle, while Mueller stood by the passenger window. At that point, defendant produced a red bag containing a white powder, later determined to be 232.1 grams of cocaine, and handed it to Mueller. Mueller then activated an electric button which alerted the surveillance team to move in and arrest defendant. Martinez frisked defendant and uncovered a knife in defendant's waistband. Another police officer arrested Ameniero.
At trial, Ameniero denied transacting a drug sale with defendant, although he conceded that he drove defendant around for 15 minutes on the day in question. Ameniero's father, Jose Ameniero, testified that his son had known defendant since 1963.
Immediately prior to trial, on June 17, 1985, defendant requested that a private attorney replace the assistant public defender who had been representing him. The trial court denied the request, noting that defendant had already had three private attorneys, each of whom had withdrawn from the matter, that the public defender's office had capably represented defendant for six months, that the cause had been before the trial Judge on numerous occasions and was one of the oldest on his docket, and that defendant's choice of private counsel was not prepared to proceed to trial.
Also prior to trial, defendant and Ameniero both moved for severance. Ameniero's attorney claimed that he would attempt to prove at trial that defendant had many sources for narcotics, that defendant wrote notes to Ameniero admitting his guilt in the offense but denying Ameniero's participation, and that the two codefendants' meeting on the day in question was "innocuous." He made the following offer of proof regarding defendant's sources of drugs: (1) On May 17, the day before the offense, the agents received a 10-ounce drug sample from defendant; (2) on May 14, defendant told the agents the sample came from his source in Benton, Illinois; (3) on April 30, defendant told the agents that Enrique Lopez had a cocaine warehouse in Benton; and (4) on April 25, the agents met with defendant and negotiated eight kilos. Ameniero's attorney stated that such proof would be elicited through the cross-examination of one of the agents, the result of which would "have a significant prejudicial effect on Mr. Threzzy at a joint trial." He further stated that Ameniero's defense at trial would be "I didn't do it and he did." The trial court denied Ameniero's offer of proof on the ground it was not relevant, as well as Ameniero's second offer of proof which purported to show that defendant was a con man who misled people. As a result, severance was ruled unnecessary.
With respect to defendant's motion for severance, the trial court considered the threshold question to be whether the evidence that Ameniero sought to introduce would be admitted. According to the court, defendant's notes and the evidence of defendant's sources of narcotics on other occasions were inadmissible, while the photographs showing a prior relationship between the two co-defendants were innocuous and possibly relevant. Thus, the court also denied defendant's motion for severance, stating that the case would be tried on what allegedly occurred on May 18, and the trial began.
In his opening statement, Ameniero's counsel referred to defendant as a "drug dealer" who had various sources for his cocaine. Defendant's objection to this remark was overruled. Moreover, on cross-examination of Agent Mueller, over defendant's objection, Ameniero's counsel elicited that the agents had prior contact with defendant regarding the sale of 10 ounces of cocaine. Counsel also asked Mueller about defendant's source, Enrique Lopez, from Benton, Illinois, the two- or three-month investigation of defendant, and about a meeting in which defendant allegedly offered to cure Mueller's friend of cancer for $135,000. Finally, in closing argument, Ameniero's attorney accused defendant of the offense by stating, "We all know [Threzzy's] windbreaker was loose fitting because we all know what was under there . . .. Point is Threzzy got in the car with the drugs. He had them under the jacket." Ameniero's attorney further implied in the argument that defendant was a dealer when he commented that defendant wanted the agents to think "he's got a source in a shiny, new car so he can do this kilo deal next week."
The jury ultimately acquitted Ameniero, but convicted defendant. On appeal, defendant argues that the trial court's denial of his motions for severance and substitution of ...