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07/08/88 the People of the State of v. Chmitt Et Al.

July 8, 1988





527 N.E.2d 384, 173 Ill. App. 3d 66, 122 Ill. Dec. 886 1988.IL.1070

Appeal from the Circuit Court of Cook County; the Hon. Sophia Hall, Judge, presiding.


JUSTICE PINCHAM delivered the opinion of the court. MURRAY, J., concurs. PRESIDING JUSTICE LORENZ, Dissenting in part.


Following a bench trial the defendants, Vernon Schmitt and Frank Nielsen, were found guilty of unlawfully delivering a controlled substance, cocaine, to Glenn Schneider on January 5, 1983. (Ill. Rev. Stat. 1987, ch. 56 1/2, par. 1401(a).) Schmitt was sentenced to seven years' imprisonment and Nielsen was sentenced to nine years' imprisonment. The issue relied on by Schmitt, on his appeal, is that the trial court erred in denying his motion to dismiss the indictment against him because the State violated its agreement to release and not prosecute him in return for his self-incrimination and successful assistance to the agents in identifying, obtaining evidence against and arresting his drug source, the co-defendant Nielsen. Nielsen argues for reversal of his conviction that the trial court erred when it did not grant his motion for a severance from the trial of his codefendant Schmitt.

Prior to trial, defendant Schmitt filed a motion to dismiss the indictment as to him on the ground that the Illinois Department of Law Enforcement agents promised him that for his cooperation and actual assistance in obtaining evidence against his drug supplier, codefendant Nielsen, the State would release and not prosecute him for his unlawful drug delivery to Schneider. Defendant Nielsen filed a pretrial motion for a severance from the trial of defendant Schmitt on the grounds that Schmitt made numerous post-arrest statements which implicated Nielsen in the commission of the alleged drug offense and which were inadmissible against Nielsen but on which the State would improperly rely as evidence against Nielsen. Schmitt's dismissal motion was denied; the trial court did not grant Nielsen's motion for a severance and both defendants were tried jointly.

The trial evidence established that on January 5, 1983, Agent Schneider, of the Illinois Department of Law Enforcement, Division of Criminal Investigation, while at Schmitt's home purchased 2 1/2 ounces of cocaine from Schmitt for $5,500. Schmitt was promptly arrested by Agent Schneider and other agents. After being admonished of his Miranda rights by the arresting agents, Schmitt was asked by them to assist them in obtaining evidence against and apprehending his drug source, for which, according to the agents, they would bring Schmitt's assistance to the attention of the State's Attorney. Conversely, according to Schmitt, for his assistance in apprehending his drug source, Nielsen, the agents promised him that they would release and not prosecute him for his drug delivery to Agent Schneider.

In reliance on the agents' promise, the terms of which were controverted, Schmitt told the agents that he received the cocaine from defendant Nielsen, who had brought the cocaine to Schmitt's home earlier that day, that Schmitt had not paid Nielsen for the drugs and that Nielsen was to return to Schmitt's home later for the purchase money. Schmitt called Nielsen on the telephone monitored by the agents and had Nielsen come to his house. With Schmitt's permission, the agents hid in various parts of the house. Upon Nielsen's arrival, Schmitt engaged Nielsen in incriminating conversations which were overheard by the agents and Schmitt gave Nielsen the money for the drugs which Nielsen had previously delivered to Schmitt and which drugs Schmitt had sold to Agent Schneider. Nielsen was promptly arrested by the agents. Schmitt's handwritten signed confession, which related Schmitt's activities, as above stated, was admitted into evidence.

Schmitt testified in his own behalf on his defense. Schmitt admitted that he sold the drugs to Agent Schneider, that upon his arrest he told Agent Schneider and the other arresting agents that he had obtained the drugs which he sold Agent Schneider from the codefendant Nielsen, who had brought the drugs to Schmitt's home earlier that day, that he had not paid Nielsen for the drugs and that Schmitt expected Nielsen to later return to his home for the money for the drugs. Schmitt stated that in reliance on the agents' promise that he would be released and not be prosecuted for his unlawful drug delivery to Agent Schneider, he cooperated with the agents, called Nielsen on the phone and had Nielsen return to his house for the drug purchase money, that he engaged Nielsen in self-incriminating conversations of their drug transaction and gave Nielsen money for the drugs within the presence and hearing of the secreted agents, who thereupon promptly arrested Nielsen, and that he wrote and signed a written confession of his involvement.

On this appeal, defendant Nielsen contends that the trial court erred in denying his severance motion. The State exclusively argued in the trial court that the trial court conducted two separate trials. The trial court agreed and so ruled in denying Nielsen's post-trial motion. The State's sole argument in it's brief before this court is that "the trial court properly granted a severance to defendant Nielsen and . . . a trial court is presumed to consider only competent evidence during a joint trial," and that "the trial court did in fact recognize the severance for evidentiary purposes." The record clearly establishes the contrary. There were not two separate trials. No severance really occurred. The record affirmatively reflects that there was but a single joint trial. A review of the trial sequence and chronology permits no other valid Conclusion.

When the cause came on for trial on November 26, 1984, both defendants were simultaneously called and they together appeared before the bar. The trial Judge jointly advised them of their right to be tried by a jury and they responded, thusly:

"THE COURT: Mr. Nielsen and Mr. Schmitt, you both understand that you have a right to a trial by jury. That means 12 people would be selected; they would listen to the evidence; and they would determine your guilt or innocence. You can waive your right to a trial by jury and be tried by myself, and I would be the one to listen to the evidence and determine your guilt or innocence. I gather by signing this jury waiver, you wish for me to decide the case, is that correct?, DEFENDANT NIELSEN: Yes., DEFENDANT SCHMITT: Yes.

THE COURT: All right. You may be seated."

Thereupon, the prosecutor made a motion to sequester the witnesses during the trial and the motion was granted. The prosecutor then waived opening statement. The attorney for the defendant Schmitt made his opening statement, after which the attorney for the defendant Nielsen waived opening statement.

Agent Glenn Schneider was called as the State's first witness. Agent Schneider related on direct-examination his purchase of cocaine from Schmitt at Schmitt's home, Schmitt's arrest and cooperation with the agents in luring his drug supplier, the co-defendant Nielsen, to Schmitt's home, Schmitt's self-incriminating inducement of Nielsen into making admissions of his illegal drug involvement with Schmitt which were overheard by the agents, and Nielsen's arrest by the agents.

Schmitt's attorney cross-examined Agent Schneider, not to discredit or disprove Agent Schneider's direct testimony of Schmitt's drug sale to Agent Schneider, but rather to further substantiate Agent Schneider's direct testimony of the sale and to establish the agents' promise to Schmitt to release and not prosecute him, and Schmitt's resultant cooperation with the agents in inculpating Nielsen in Schmitt's drug sale and Nielsen's arrest by the agents.

Nielsen's attorney did not cross-examine Agent Schneider, but there was further redirect examination of Schneider by the prosecutor and further re-cross-examination of him by Schmitt's attorney.

Agent Osborne Curtis was called as the State's next witness. Agent Curtis testified on direct-examination that he surveilled the defendant Schmitt on January 5, 1983, at Schmitt's home, that Schmitt attempted to flee out a window and was arrested and that he recovered the money given Schmitt by Schneider for the narcotics purchase from the yard next door to Schmitt's residence where Schmitt had surreptitiously discarded it. Only Schmitt's attorney cross-examined Agent Curtis.

Agent David C. Hamm was the next witness called by the State. He related that he supervised the Schmitt-Schneider narcotics purchase-sale investigation, that he observed Agent Curtis enter Schmitt's residence, that when he heard the prearranged radio arrest signal from Agent Schneider, he entered Schmitt's residence and observed through an open window other agents on the ground level. Agent Hamm went to the side of the house, where he observed Schmitt in the custody of other agents. Agent Hamm further related that Schmitt was given his Miranda admonitions and that Schmitt told the agents that he wished to cooperate. Schmitt told them that he had received the cocaine he had sold Agent Schneider from Frank Nielsen, who brought it to Schmitt's home earlier that day and for which Schmitt had not paid Nielsen; that Schmitt was expected to call Nielsen, who would come over and get his money for the purchase price of the drugs. Agent Hamm stated that Schmitt told them that he was willing to make the telephone call to Nielsen with the agents present in his home. Hamm and Schmitt agreed that Schmitt would call Nielsen and that the agents would be present to overhear the conversation between Schmitt and Nielsen when Nielsen arrived. As the plan was being formulated, Agent Curtis recovered from the adjacent yard the $5,500 Agent Schneider had given Schmitt for the purchase of the drugs which had been thrown there by Schmitt through a window in his house.

Schmitt made the telephone call and Agent Hamm overheard Schmitt say, "It is me, Vern. It's okay, you can come on over. I've got your money; he's gone. When will you be here? Okay." Schmitt hung up and told Hamm, "He will be here in about ten minutes."

Agent Hamm put the $5,500 on the kitchen counter and he and the other agents hid in various parts of Schmitt's house. Hamm stated that while they were secreted Nielsen and a young lady entered the house. After about 20 minutes of conversation which Hamm was unable to distinguish because of the furnace noise, Nielsen came near where Hamm was secreted and told Schmitt to make sure he knew who he was dealing with. At that moment the agents came out of hiding and arrested Nielsen and the lady, Belinda Colon. The agents recovered $3,200 from Nielsen's pants pocket, $2,400 of which was from the $5,500 that Agent Hamm had left on the kitchen counter. Hamm further related that later at their Des Plaines office he witnessed Schmitt handwrite and sign his confession.

Nielsen's attorney cross-examined Agent Hamm on Schmitt's sale of the drugs to Agent Schneider, Schmitt's attempt to flee out the window, Schmitt's arrest in his yard by the agents, and the agents' recovery of the drug purchase money in the yard. Agent Hamm was further cross-examined:

"Q. He [Schmitt] asked you what he could do to help himself?

A. That is correct.

Q. And did you then sit down with Vernon Schmitt and engage him in a conversation about how he could help himself?

A. In essence, I did.

Q. What help did you ultimately say, 'Vernon, you can help yourself and this is what I'm going to give you,' what did you say?

A. After a short Discussion between myself, Agent Williams, and Mr. Schmitt, we arrived at an agreement that after he had told us that the contraband had been delivered earlier that day from Mr. Nielsen and his friend Belinda, that he was expected to make a telephone call, that he had not paid for the contraband, suspected cocaine, that he was expected to call Mr. Nielsen back and tell him to come to his house and pick up his money, and he agreed that he would do that."

Hamm additionally related that Schmitt called Nielsen, the agents secreted themselves in Schmitt's house, that he told Schmitt just to have a normal conversation, to let the conversation flow as it would normally flow and that Nielsen arrived at Schmitt's residence shortly thereafter.

Nielsen's attorney cross-examined Agent Hamm:

"Q. Now, you had a conversation with Mr. Schmitt prior to the arrival of Mr. Nielsen to the apartment, did you not?

A. That is correct.

Q. And you and other agents in your conversation with Mr. Schmitt generally advised Mr. Schmitt as to what you were looking for, isn't that correct?

A. The substance of this conversation with Mr. Schmitt was about an anticipated conversation.

Q. Right.

A. That he would have with Frank Nielsen and Belinda Colon.

Q. Right.

A. As they arrived at the home.

Q. Correct.

Q. . . . [You] had generally advised [Schmitt] as to the, what it is, what kind of conversation you wanted them to have?

A. Schmitt had told us that when he arrived there, there would be a conversation about the cocaine that was the subject of the meeting and I told him, well, let the conversation flow without any specific direction as to what words to use or anything like that.

Q. And further, sir, in refreshing your recollection by looking at your written report, did you also see that you had indicated that defendant Schmitt stated that he wanted to cooperate and assist the agents by calling Mr. Nielsen and by having Mr. Nielsen return to his home in order to pick up his share of the money?

A. That is correct.

Q. Now, further, Agent Hamm, did you see that in the written report that you submitted with regard to the January 5th occurrence, you had indicated in writing that Schmitt had advised the agents that Mr. Nielsen was in fact his source for all of the sales to Agent Schneider, those sales taking place on January, excuse me, on the 29th, the 30th, and for the current day, January 5th?

A. Yes, . . ..

Q. And you indicated as well that Mr. Schmitt had told you that Nielsen came with his girlfriend, Belinda, shortly before Agent Schneider appeared on the scene on January 5th, he delivered the controlled substance to Mr. Schmitt and then he left, is that correct?

A. That is correct.

Q. And your indication here is that Schmitt further acknowledged that he did not prepay any monies to Nielsen for this controlled substance rather that Mr. Nielsen was expecting a telephone call in order to return and get his portion of the payment.

A. That is correct."

Daniel Callahan was next called, as the fourth witness, by the State. Agent Callahan testified that he was assigned to assist in the surveillance and arrest in a narcotic investigation on January 5, 1983, at 2415 East Church Street, Des Plaines; that he received an electronic arrest signal which prompted him and three or four other agents to enter the house; when Agent Schneider opened the door they pursued the defendant, Vernon Schmitt, through the house and discovered that he had jumped out the window and had been apprehended outside by other surveilling agents. Agent Callahan further related that Schmitt was brought back into the house, where the agents advised him of his Miranda rights, at which time Schmitt told the agents that he had thrown away the purchase money for the drugs; that Agents Hamm and Williams reached an agreement with Schmitt, who wanted to cooperate. Callahan stated that Schmitt told him in which closet to hide and he entered that closet as other agents hid in other places in the house.

Callahan testified that while he was hiding in the closet the codefendant, Frank Nielsen, and Belinda Colon came into the house and entered the kitchen, where Callahan could see them from his vantage point, approximately six feet away through the cracked closet door. Callahan heard Schmitt state to Nielsen that his customer, referring to Agent Schneider, was satisfied with the drugs and Nielsen responded that "he should have been satisfied because it was good rock from Bolivia."

Callahan's direct testimony continued, as follows:

"[Assistant State's Attorney]: . . . [Did] you continue to maintain your position in the closet?

A. Yes, I did.

Q. And at what point did you come out from the closet?

A. After I had heard Nielsen counting money, at which point there was some Discussion Nielsen had asked if all the money was his, and Schmitt stated no, some of it was his, and Nielsen exclaimed that he was surprised, he thought all of it was his, and then it was indicated that Nielsen was leaving and I heard the voices leaving the kitchen area.

Q. When you heard the voices leaving the kitchen area from your vantage point, what happened or what did you do next, Agent Callahan?

A. I exited the closet, entered into the family room where they were walking toward the front door, announced my office, at which time the other agents came out of various hiding places.

Q. And when the other agents came out from their positions and you walked into the family room, what occurred next?

A. Nielsen and Colon were placed under arrest."

Agent Callahan was cross-examined by Schmitt's attorney on Schmitt's agreement with Agents Williams and Hamm to cooperate in obtaining evidence against and apprehending his drug supplier, the codefendant, Frank Nielsen. Agent Callahan stated that the agents only told Schmitt that his cooperation would be brought to the attention of the State's Attorney's office. Schmitt's attorney noted that, "not one of the witnesses that testified in this case has made a single note in about 80 pages of police reports about this agreement, and I find that somewhat incredible."

Co-defendant Nielsen's attorney at this time cross-examined Agent Callahan, who then testified that while he was secreted in the closet, he could distinguish Schmitt's voice from Nielsen's voice, and that when he came out of the ...

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