Before setting out herein and reviewing the post-conviction court's extensive comments, findings and ruling approving the prosecutor's failure to give petitioner's trial counsel the March 13, 1983, MEG SOI Agreement between the agents and Bruchert and the seven MEG Receipt of Funds of the payments of monies to Bruchert by the agents as pretrial discovery material, " Brady violation," it is appropriate and beneficial to review Brady.
APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION
539 N.E.2d 400, 184 Ill. App. 3d 287, 132 Ill. Dec. 90 1989.IL.770
Appeal from the Circuit Court of Cook County; the Hon. Fred G. Suria, Judge, presiding.
JUSTICE PINCHAM delivered the opinion of the court. PRESIDING JUSTICE MURRAY, specially Concurring. JUSTICE COCCIA, specially Concurring.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE PINCHAM
Mark Gennardo, petitioner-appellant, filed a post-conviction petition to vacate his conviction and six years' imprisonment sentence for an unlawful delivery of cocaine and for a new trial. The petition alleged that the State failed to comply with the mandate of Brady v. Maryland (1963), 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194, and Brady's progeny to furnish to petitioner's trial counsel evidence favorable to petitioner. Petitioner further alleged that petitioner's conviction was predicated on the perjured trial testimony of the State's principal witness, Mark Bruchert, in violation of constitutional due process and the mandate of Napue v. Illinois (1959), 360 U.S. 264, 3 L. Ed. 2d 1217, 79 S. Ct. 1173, and Napue's progeny. After an evidentiary hearing, the post-conviction court denied the post-conviction petition and the relief therein prayed. Petitioner appeals. We reverse. Our reasons follow.
In early September 1982, Rafael Tovar, a Metropolitan Enforcement Group undercover agent, while conducting an undercover investigation, met Mark Bruchert, a narcotics addict. On September 28, 1982, Agent Tovar purchased two ounces of cocaine from Bruchert. Immediately thereafter, Bruchert, Ray Lueders and Mark Gennardo, petitioner, were arrested. Bruchert had cocaine in his possession when he was arrested. Petitioner and Lueders were released on bond shortly after their arrest, but Bruchert did not obtain his release on bond for almost four months, until January 15, 1983.
Petitioner, age 21 years, Mark Bruchert, age 23 years, and Ray Lueders, age 20 years, were later charged in an indictment with having on September 28, 1982, in Cook County, Illinois, delivered a controlled substance (cocaine) to Rafael Tovers and Thomas Braglia. In response to petitioner's pretrial motion for discovery, the State filed its "Answer to Discovery" which, inter alia, stated:
"11. Evidence favorable to the defendant: None known to the People."
Thereafter, the State filed its supplemental answer to discovery, which named Mark Bruchert as an additional witness that the State intended to call as a State witness on petitioner and Lueders' trial.
The indictment came on for trial against petitioner Gennardo and codefendant Ray Lueders only. Both waived jury. On January 14, 1984, while the indictment charging him with the delivery of the cocaine to MEG undercover Agent Tovar was still pending against Bruchert, Bruchert testified as the State's principal witness at petitioner and Lueders' joint trial.
Bruchert testified that petitioner asked him to find a buyer for cocaine; that he, Bruchert, did not know that Tovar was an undercover agent when he arranged with Tovar to sell him two ounces of cocaine; that petitioner, in Lueders' presence, gave Bruchert two ounces of cocaine, which Bruchert delivered to Tovar, while petitioner and Lueders waited outside the tavern for Bruchert to return with the $4,000 that Tovar was to pay Bruchert for the cocaine; that immediately following Bruchert's delivery of the cocaine to Agent Tovar, petitioner, Lueders and Bruchert were arrested, at which time Bruchert also had additional cocaine in his possession.
Bruchert testified on cross-examination that following his arrest he contacted MEG agents and offered to cooperate with them in making future controlled drug purchases. His offer was eventually accepted, and he worked undercover for MEG agents in narcotics investigations. In response to further cross-examination on whether he was ever paid while he was an MEG undercover informant, Bruchert's reply was that he had not been paid. Bruchert asserted that he had received only $10 on three or four occasions from the MEG agents for gasoline expenses he incurred in arranging controlled undercover narcotics purchases while acting undercover for the MEG agents. At petitioner's trial, Bruchert was specifically questioned on cross-examination about the payments he received while working undercover for MEG. Bruchert then testified:
"Q. Has anybody in connection with this case, the State's Attorneys, Agent Tovar or any other policeman that you have been dealing with in connection with this case and your work on the streets for them, have they provided you with any financial money?
A. Other than $10.00 once in a while for gas.
Q. Who has provided you with the $10.00 once in a while for gas?
Q. All right. Is he one of the arresting officers in this case?
Q. How often has he provided you with $10.00 once in a while ?
A. Maybe three or four times." (Emphasis added.)
On redirect examination of Bruchert, the prosecuting attorney further inquired about the payments of monies to Bruchert by the MEG agents. The prosecution asked Bruchert the following questions and Bruchert answered as follows:
"Q. Now Mr. Bruchert, you stated also on cross examination that you provided information to the Metropolitan Enforcement Group Agents in the past; is that correct?
Q. All right. Prior to the trial, were you ever given any money in exchange for that information?
Q. Were you ever paid prior to your giving information ?
Q. Ever paid afterwards ?
A. No." (Emphasis added.)
When the State rested, in response to defendant Lueders' motion for a finding of not guilty, the trial court stated and ruled:
"THE COURT: I don't understand the State's Attorney proceeding against this defendant, Lueders. I really am puzzled as to why you didn't nolle that case as to him. I think it is almost a travesty on Justice. Motion for directed finding of not guilty is sustained. Finding of not guilty."
Thereupon, petitioner stated under oath, pursuant to questions put to him by his trial attorney, that he was the defendant in the case, that he understood that he had a right to testify in the case if he chose to, that he understood that if he wished to testify, his attorney would assist him in preparing and presenting testimony for his defense, that he and his attorney had discussed whether or not he should testify and his attorney suggested to him that he should not testify, that whether or not he wished to testify was his decision to make and that it was his decision not to testify. Petitioner presented no evidence in his defense and rested.
In urging the trial court to acquit petitioner, his trial attorney argued that the State's evidence did not prove petitioner's guilt beyond a reasonable doubt. He argued:
"You can see Mr. Bruchert was handling all the negotiations, the determination of peace [ sic ], the determining of all transfers, all phone calls, and all dealings totally with Rafael Tovar. There is absolutely no corroboration of any criminal activity alleged to have been done by my client in this case. . . . [Given] his [Bruchert's] background, given his promise of leniency in this case, given his disrespect for the law, given all the self-serving statements, I do not believe that that is sufficient to prove my client guilty beyond a reasonable doubt.
It would be just as likely for Mr. Bruchert to . . . make it look like somebody else might have been involved in this case so that if he was caught, it would look like he was part of something greater than he actually was. The proof is consistent with that theory just as consistent with the State's theory.
That all leads to there being a reasonable doubt as to whether or not Mr. Gennardo is guilty of this charge. Mr. Bruchert is the only person who testifies as to any criminal activity whatsoever. It is uncorroborated, and he is an unbelievable witness. And for that reason I believe the defendant should be found not guilty." (Emphasis added.)
The prosecutor agreed, in his final closing argument, with petitioner's attorney, that Bruchert had a criminal history and background. The trial court concluded:
"Of course, as a co-defendant and an accomplice, his [Bruchert's] testimony is viewed with great suspicion and must be corroborated. Much of it, of course, was uncorroborated, but there is significant corroboration.
First of all, Mr. Gennardo was there. Secondly, the police observed Bruchert going to the car where Gennardo was and coming out of there with an envelope of some sort which he took back and eventually gave to one of the officers, and it contained cocaine. . . . [And] there is no doubt in the Court's mind that the complicity is present.
Therefore, as to Gennardo there will be a finding of guilty. I sustained the motion as to Lueders, the other defendant, because the record is barren of any evidence against him. I don't know why he was here." (Emphasis added.)
Realistically, the corroborative evidence, more accurately the lack thereof, of which the trial court spoke, was likewise applicable to codefendant Lueders. Co-defendant Lueders was also in "the car where Gennardo was" and from which Bruchert exited, supposedly with the envelope containing the cocaine. Thereafter, Bruchert secreted himself in the public bathroom of the premises. Bruchert came out of the bathroom and delivered drugs to Agent Tovar. The complete trial record reveals that the only evidence of petitioner's involvement in Bruchert's delivery of the cocaine to Agent Tovar was Bruchert's testimony. The trial court accurately pointed out that Bruchert did not testimonially involve Lueders in his sale of the drugs to Agent Tovar, but that Bruchert did so involve petitioner. However, Bruchert's testimony was the only evidence of petitioner's involvement. As stated, the evidence on which the trial court expressly relied as corroboration of petitioner Gennardo's involvement did not corroborate petitioner's involvement any more so than it corroborated Lueders' involvement.
On February 17, 1984, Bruchert entered a plea of guilty and he and petitioner were each sentenced to six years' imprisonment. Petitioner's judgment of conviction and sentence were affirmed by this court on March 8, 1985, in an unpublished Rule 23 order, People v. Gennardo (1985), 131 Ill. App. 3d 1160.
On August 15, 1985, petitioner filed the instant post-conviction petition to vacate his conviction and sentence and for a new trial. The petition alleged that Bruchert was the only witness to Bruchert's delivery of the cocaine to Agent Tovar who testimonially involved petitioner in the transaction, and that Bruchert testified as a prosecution witness against petitioner in exchange for the MEG agents' promise to recommend to the trial court on behalf of Bruchert the imposition of a minimum imprisonment sentence. Petitioner's post-conviction petition additionally alleged:
"4. Defendant [petitioner Gennardo] has recently discovered that Bruchert gave perjured testimony at trial when he denied being a paid informant.
5. Without said perjured testimony, the trial court would not have made a finding of guilty.
6. Furthermore, the State failed to disclose to the defendant that Bruchert was a paid informant, in violation of the Brady rule. Thus Defendant was deprived of a fair trial."
In support of petitioner's post-conviction petition, petitioner also submitted his affidavit, which stated:
"(1) On January 19, 1984, Mark Bruchert testified at my trial that he did not receive money in connection with his work on the streets for the police, except '$10.00 once in a while for gas.'
(2) I have recently learned that records of the Northeastern Metropolitan Narcotics and Dangerous Drugs Enforcement Group reveal that it paid Bruchert for 'information and services." (Emphasis added.)
The State did not deny the aforestated allegations of petitioner's post-conviction petition and supporting affidavit that Bruchert lied when he testified at petitioner's trial that the only money he received from MEG and its agents while he was an informant was $10 three or four times for gas. Instead, the State's response was simply a "Motion to Dismiss," which merely asserted that "Petitioner's allegations fail to raise any constitutional questions within the purview of the Post-conviction Hearing Act."
Clearly, the allegations of the post-conviction petition and the supporting affidavit presented two separate and distinct, but interrelated constitutional issues for the trial court's determination, namely (1) the consequence of the State's failure to comply with its continuing obligation to furnish the defendant favorable evidence, under the mandate of Brady v. Maryland (1963), 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194, and the Brady progeny, on petitioner's guilty finding and sentence; and (2) the consequence of perjured testimony by a State's witness on the constitutional due process validity of petitioner's conviction and sentence under Napue v. Illinois (1959), 360 U.S. 264, 3 L. Ed. 2d 1217, 79 S. Ct. 1173, and the Napue progeny.
The post-conviction court conducted an evidentiary hearing on the post-conviction petition. The Judge who conducted the post-conviction hearing was not the trial Judge. Mark Bruchert, Linda Mae, Bruchert's girl friend, Des Plaines, Illinois, police officer Christopher Terrazzi, MEG agent Rafael Tovar and Bruchert's trial attorney testified on the hearing as witnesses for the State. Petitioner's trial attorney and Bruchert's sister, Barbara Napalitano, testified on behalf of petitioner.
On the evidentiary hearing, Bruchert admitted that while he was in jail for almost four months after his arrest, unable to obtain his release on bond, he talked with MEG agents and offered to arrange a controlled undercover purchase of narcotics for the agents. Bruchert was told by the MEG agents to wait until he was released on bond. After Bruchert was released on bond, he again contacted the MEG agents and offered his services to them, as aforesaid, in exchange for their recommendation to the trial court that he receive a six-year minimum imprisonment sentence on a plea of guilty to the pending charges against him arising out of his September 28, 1982, sale of cocaine to undercover agent Tovar. Bruchert and Agent Tovar testified that Bruchert was told by the MEG agents that they would act on his behalf at his sentencing only if Bruchert arranged a controlled purchase of two or more kilograms of cocaine.
Bruchert's trial testimony was (1) that the only money that he had been given by the agents " in connection with this case and [his] work in the streets for them," was " $10.00 once in a while for gas . . . maybe three or four times " (emphasis added); (2) that he was never given any money in exchange for information; (3) that he was never paid before he gave any information; and (4) he was never paid after he gave any information. Testimony and documentary evidence admitted in the post-conviction hearing, however, established the contrary, that this trial testimony of Bruchert was false.
The post-conviction hearing evidence established that after Bruchert's release on bond on January 15, 1983, in his further attempt to effectuate his previously expressed desire to obtain a lenient sentence on the narcotics delivery charge pending against him, on March 13, 1983, Bruchert went to the MEG office in Des Plaines and talked to MEG agents Rafael Tovar and Victoria Gadomski. This was the first time that Bruchert and Agent Tovar had seen each other since Bruchert's arrest on September 28, 1982. Bruchert agreed to become an undercover narcotics purchaser informant for the agents, and the agents agreed to recommend a minimum imprisonment sentence on his pending narcotics delivery charge, but only if Bruchert made a controlled purchase of at least two kilograms of cocaine. Pursuant to this agreement and in conformity with MEG policy and regulations, Agents Rafael Tovar and Victoria Gadomski and Mark Bruchert signed a MEG printed form agreement entitled:
"Northeastern Metropolitan Narcotics and Dangerous Drugs Enforcement Group S.O.I. [Service of Information] advisement and Requirement document [MEG SOI Agreement]."
The MEG SOI Agreement was also signed by Bruchert, but under the fictitious name of "Tick Andrews." The agreement was signed at the MEG Des Plaines office on March 13, 1983. The agreement pertinently stated, inter alia :
"I Mark Bruchert the undersigned understand that while I am a Source of Information for the Northeastern Metropolitan Narcotics and Dangerous Drugs Enforcement Group . . ..
I have been advised that all payments made to me by the Northeastern Metropolitan Narcotics and Dangerous Drugs Enforcement Group are considered taxable income and should be included on state and federal tax returns." (Emphasis added.)
The post-conviction hearing evidence further established that on the same date that Bruchert and Agents Gadomski and Tovar signed the MEG SOI Agreement, Agent Gadomski paid Bruchert (Tick Andrews) the sum of $100 for "Information and Services." The payment was witnessed by Agent Tovar. As evidence of this $100 payment to Bruchert by Agent Gadomski, Agents Gadomski and Tovar and Bruchert signed a MEG "Source of Information Receipt Funds" document (MEG SOI Receipt of Funds) in words and figures as follows:
"Northeastern Metropolitan Narcotics and Dangerous Drugs Enforcement Group
S.O.I. RECEIPT OF FUNDS Purpose: Purchase of Evidence Information and Services Protection Expenses
I hereby acknowledge the receipt of Official Advance Funds in the amount of One Hundred and No/100 dollars ($100.00), provided to me by Special Agent /S/Victoria Gadomski
/S/Victoria Gadomski 2/13/83 X /S/Tick Andrews 3/13/83
Provided by: Date Source of Information
Remarks: Re: M83 -- 0197 ...