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09/27/89 the People of the State of v. Chmitt Et Al.

September 27, 1989





545 N.E.2d 665, 131 Ill. 2d 128, 137 Ill. Dec. 12 1989.IL.1514

Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. Sophia H. Hall, Judge, presiding.


JUSTICE CALVO delivered the opinion of the court.


Defendants, Vernon Schmitt and Frank Nielsen, were charged in the circuit court of Cook County with unlawful delivery of a controlled substance to Glenn Schneider on January 5, 1983, in violation of section 401(a)(2) of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1983, ch. 56 1/2, par. 1401(a)(2)). Pursuant to agreement of the parties, defendants were tried simultaneously by the court with the understanding that evidence admissible only as to defendant Schmitt would not be considered against defendant Nielsen. Defendants were found guilty and, following the trial court's denial of their post-trial motions, they appealed. The appellate court, with one Justice Dissenting in part, reversed defendant Nielsen's conviction and granted him a new trial. (173 Ill. App. 3d 66.) Schmitt's case was remanded with directions. The State sought leave to appeal the result only as to defendant Nielsen, and we granted the State's petition.

Prior to trial, Nielsen moved for a severance of his case from that of Schmitt. Nielsen alleged that Schmitt had given written and oral statements implicating Nielsen and that their theories of defense were antagonistic. The State filed a response in opposition to the motion. No ruling was procured on the motion prior to the commencement of trial. In the midst of the first witness' testimony, Nielsen's attorney noticed the omission and brought it to the court's attention. By agreement of all parties concerned, the court proceeded as if the cases had been severed, conducting simultaneous but separate bench trials. During the course of the trial, Nielsen's attorney repeatedly objected to testimony regarding Schmitt's statements implicating Nielsen, lodging a continuing objection to such statements, and, anticipating Schmitt's testimony in his own defense, reminded the court that it had to consider that testimony only "against him, not against Mr. Nielsen." The court, time and again, sustained counsel's objections and assured Nielsen's counsel:

"Throughout, the Court is not considering statements made by Schmitt with regard to Nielsen."

Given the court's rulings, which removed Schmitt's oral and written statements directly implicating Nielsen from consideration, the circumstantial evidence against Nielsen came from agents who participated in the drug investigation resulting in Nielsen's arrest. They testified that Schmitt moved back the time for the drug transaction to 4:30 p.m., rather than 4 p.m. as originally scheduled, because his "source" would be at his residence at 4 p.m. Subsequently, at 4 p.m., Nielsen and a female companion arrived at Schmitt's residence shortly before the drug transaction in question, went inside, stayed approximately two minutes, and then departed in Nielsen's automobile. Thereafter, agent Schneider arrived at Schmitt's residence and purchased approximately 2 1/2 ounces of cocaine from Schmitt for $5,500. Schmitt was promptly arrested and agreed to assist the agents in apprehending his drug source. Schmitt placed a telephone call, in which his end of the conversation was recounted by Agent Hamm as follows:

"It is me, Vern. [pause] It's okay, you can come on over; I've got your money; he's gone. [pause] When will you be here? Okay."

Minutes later, the agents were informed by radio that Nielsen was approaching the residence in his automobile. The agents hid at various locations throughout the residence and awaited Nielsen's arrival. A short time later, Nielsen arrived and, in the conversation with Schmitt that followed, made several statements which, at the very least, indicate Nielsen was possessed of substantial knowledge of cocaine trafficking and had had dealings with Schmitt in the past.

Nielsen was overheard to say, "Just make sure you know who you are dealing with." In response to Schmitt's statement indicating his customer was satisfied, Nielsen replied, "He should have been satisfied because it was good rock from Bolivia." Nielsen provided Schmitt with a history of cocaine processing, warned Schmitt to always dust off his scales after use, and suggested Schmitt keep records of his transactions using abbreviated dollar values and code names for his customers. Nielsen said he used the word "gas" as Schmitt's code name. The agents also overheard Nielsen counting money and discussing the division of the $5,500. After the money was divided, Nielsen began to leave and was then arrested.

Subsequently, Nielsen's apartment was searched pursuant to his consent. Inside, agents discovered small vials with screw-on caps, a scale, some leafy matter, and three small notebooks in which the word "gas" appeared in conjunction with the dates December 29 and 30, 1982, and the numeric notations 550 and 1100.

Following presentation of the State's case, including Schmitt's written statement naming Nielsen as his supplier, which was specifically "offered against defendant Schmitt," Nielsen's attorney moved for a directed verdict, arguing there was no evidence to connect Nielsen to the "transaction of January 5th." Nielsen's motion was denied. The court then entertained arguments by the defense and the State, following which the court announced that it would defer pronouncement of its finding in Nielsen's case until after the Conclusion of Schmitt's testimony:

"I want to assure you, I am ready to decide the case; but, under the circumstances, I do not wish to give my decision until after I have heard ...

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