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11/09/89 the People of the State of v. Augusta Zymantas

November 9, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

AUGUSTA ZYMANTAS, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

547 N.E.2d 536, 191 Ill. App. 3d 55, 138 Ill. Dec. 369 1989.IL.1772

Appeal from the Circuit Court of Cook County; the Hon. Thomas J. Maloney, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE MURRAY delivered the opinion of the court. LORENZ, J., concurs. JUSTICE PINCHAM, specially Concurring.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MURRAY

Following a bench trial in the circuit court of Cook County, defendant was convicted of syndicated gambling and sentenced to two years' probation. He then appealed his conviction, contending that the trial court erred in denying his motion to quash his arrest and suppress evidence, and in denying him an evidentiary hearing to controvert the veracity of the officer's complaint for the search warrant. This court reversed the judgment of the trial court and remanded the cause with directions to grant defendant an evidentiary hearing to challenge the officer's affidavit. People v. Zymantas (1986), 147 Ill. App. 3d 420.

Briefly, the facts underlying defendant's arrest are as follows. On April 15, 1982, Chicago police officer Patrick Chambers subscribed and swore to a complaint for a search warrant to search "August Zymantas M/W and 6157 1/2 North Leavitt Avenue, . . . Chicago, Illinois, . . . and seize . . . Sports Wagers, Sport Lines, Slough Sheets all USC commingled with gambling contraband and all other related gambling material used or kept for illegal gambling and Illinois Bell Telephone #274-4967." Chambers also alleged in the complaint that on April 14, 1982, a reliable informant told him that he had placed basketball wagers with a male known to him as "Augie" over Illinois Bell telephone number 274-4967, that he overheard the informer placing wagers over telephone number 274-4967 on April 14 and 15, 1982, and that " [t]he affiant checked with Illinois Bell Telephone Security, and found that Illinois Bell Telephone #274-4967 is register[ed] to August Zymantas at 6157 1/2 N. Leavitt Ave., in the City of Chicago." (Emphasis added.) The warrant issued, and on April 16, 1982, Zymantas was arrested at his home at 6157 1/2 North Leavitt. Defendant was subsequently indicted and convicted. He appealed his conviction to this court, and we reversed and remanded the cause with directions to grant defendant an evidentiary hearing to challenge Officer Chambers' affidavit.

At the first post-appeal hearing, the State indicated to the trial court that it would comply with this court's mandate by presenting Chambers in court and arranging for the appearance of "somebody" from Illinois Bell Telephone Company (Illinois Bell). At that time, defendant also suggested that our mandate contemplated that in addition to Chambers and witnesses from Illinois Bell, the informant mentioned in Chambers' affidavit also be identified and called as a witness, since the only method available to him to impeach Chambers' averments that he had been supplied information by a confidential informant was to show that no informant existed. In rejecting defendant's suggestion, the trial court stated:

"THE COURT: All that this opinion, and it isn't anything more than that, of the Appellate Court requires is the production of the officer for whatever interrogation might be conducted. It doesn't go beyond that and the defendant's opinions that there was no informant imposes no requirement upon the court or the State.

MR. SCHULTZ [Defense Counsel]: The affidavit in general has been put in issue and there are -- as indicated among the things that are included in the affidavit is the existence of the informant. The Appellate Court I think has determined as a matter of law that -- .

THE COURT: Counsel, the court has expressed its opinion. I don't engage in meaningless colloquy with lawyers who have an opinion different than the court.

That is what will be done here. The officer will be produced and you will be able to examine him and that will be it."

Defendant subsequently filed a motion to compel disclosure of the informant and a motion requesting discovery of the names of persons from Illinois Bell who provided information regarding unpublished telephone numbers, as well as documentation of police department regulations which prescribed procedures for the acquisition of names and addresses connected with unpublished telephone numbers, and the actual procedures Chambers employed to obtain defendant's name and address. At the hearing on defendant's motion to compel disclosure of the informant, defendant argued that the motion should be granted because the case had been remanded for a full hearing on his motion to suppress and that within that motion he had alleged as false, or as having been included with reckless disregard of the truth, eight averments by Chambers in which he asserted as fact the existence of an informant from whom he had obtained information. In denying the motion, the court stated that the law recognizes a very "serious reason" for protecting informants and that that interest cannot be overridden by "a bland off-hand assertion" in a motion which claims that an informant does not exist. The court further stated that an informant need only be produced when he is shown to have been present during the transaction of the charged conduct; apparently, the court determined that this was not the case under the circumstances.

In denying defendant's motion for discovery for the names of Illinois Bell employees and documentation concerning police regulations and the methods employed by Chambers in obtaining the information alleged in the search warrant complaint, which defendant argued was necessary to impeach Chambers' affidavit statements, the court stated that the motion was "a flight of fancy," a "thrashing about desperately trying to find something on the belief there must be something wrong here." The court then repeated that the hearing to be allowed defendant would consist of the examination of Chambers only.

At the subsequent hearing on defendant's motion to suppress, defendant called Officer Chambers. Chambers testified that on April 14, 1982, he had been investigating defendant, and he met with a confidential informant on the north side of Chicago. He further stated that on five or six other occasions the informant had provided information that led to arrests. On April 14 he made a telephone call in the presence of the informant to 274-4967, and then handed the receiver to the informant. He listened to the conversation as the informant placed a $200 basketball wager and $100 "on the over." On April 15 he dialed the same number and overheard the informant place another wager. Although Officer Chambers further testified that he had not made any other telephone calls in connection with the investigation, he later claimed he called Illinois Bell Security but did not recall the name of the person he had spoken to. He also stated that he did not submit a letter to Illinois Bell requesting information about an unpublished telephone number; that it was his normal procedure to contact Illinois Bell Security prior to preparing a search warrant but that he did not recall exactly what he had done on the day he prepared the instant warrant; that he did not remember the telephone number he dialed in the presence of the informant but that he had written it down in a notebook which he did not have with him in court; and that he learned from Illinois Bell the name of the person the telephone number belonged to, "August" Zymantas, as well as its location.

Defendant testified that on April 14 and 15, 1982, he did not have a telephone listed in his name, and he submitted evidence of two telephone bills made out to his wife for the telephone number at issue. Defendant also testified that he was at work on both days between 7 a.m. and 3:30 p.m., located 10 blocks away from his home, and the court took notice of the fact that the search warrant had been issued by the magistrate at 3:45 p.m. on April 15. On redirect examination of defendant, defendant sought to place into evidence a letter prepared and signed by his employer's personnel administrator indicating that he was at work during the time to which he testified. Upon the State's objection, the court denied admission of the letter, and defendant made an offer of proof.

On the issue of the conflict between Illinois Bell's records showing defendant's wife as the subscriber of the unlisted number and Chambers' testimony, the court found that it was proper to infer from the evidence that defendant's name was recorded somewhere in Illinois Bell's records and that the information received by Chambers that August Zymantas was the subscriber to the service may have been given in error by Illinois Bell. The court went on to hold that it would take notice of a "common practice" for males to have their telephones listed in their wives' names but that the actual subscriber to the telephone is the employed male.

Based on the foregoing, the trial court concluded that nothing alleged in defendant's motion had been established by the evidence presented and no fact or circumstance had been adduced that would cause the court to alter its prior ruling which denied defendant's original motion to quash the search warrant and suppress the evidence. The case was then tried to the court on a stipulation as to the evidence and, on that basis, the court found defendant guilty of syndicated gambling. Defendant was then sentenced to two years' probation, which was considered served. The basis of this current appeal is defendant's contention that the trial court erred in denying his motion for discovery and for the production of the informant, as well as his motion to suppress. For the reasons set forth below, we reverse and remand the cause with directions.

Pursuant to Franks v. Delaware (1978), 483 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674, the fourth amendment requires that a hearing be held where a defendant makes a substantial preliminary showing that an affiant police officer knowingly and intentionally, or with reckless disregard for the truth, made a false statement in a warrant affidavit. Here, in defendant's first appeal before this court, we found that defendant made such a showing, i.e. :

"Officer Chambers' sworn statement that he checked with Illinois Bell security and found that telephone number 274-4967 was registered to Zymantas, the defendant's sworn denial that that telephone number was registered in his name and his corroborating Illinois Bell telephone bills were not 'a matter of very small consequence' as the trial court stated. This evidence, along with the defendant's sworn denials and his allegations of Chambers' deliberate falsehood and reckless disregard for the truth, constituted an adequate and substantial preliminary showing to mandate granting the defendant an evidentiary hearing to challenge the allegations of the complaint for the search warrant." (People v. Zymantas (1986), 147 Ill. App. 3d 420, 435.)

Upon remand, the trial court interpreted our mandate to allow an examination of Chambers only, precluding defendant from seeking discovery or disclosure of the informant.

Our supreme court has not had an opportunity to address the question of whether an informant must be disclosed once a Franks hearing has been granted. (See People v. Lucente (1987), 116 Ill. 2d 133.) The Franks court itself did not so indicate, stating that "because we are faced today with only the question of the integrity of the affiant's representations as to his own activities, we need not decide, and we in no way predetermine, the difficult question whether a reviewing court must ever require the revelation of the identity of an informant . . .." (Franks, 438 U.S. at 170, 57 L. Ed. 2d at 681, 98 S. Ct. at 2684.) The Court observed, however, that pursuant to McCray v. Illinois (1967), 386 U.S. 300, 18 L. Ed. 2d 62, 87 S. Ct. 1056, the due process clause of the fourteenth amendment does not require a State to reveal an informant's identity routinely, upon a defendant's mere demand, when there is ample evidence in the probable-cause hearing to show that the informant was reliable and his information credible. In McCray, that court also held that if a Judge under all the circumstances doubts the credibility of a police officer, he may require that the informant be identified or even produced, and if the State fails to comply, the Judge may grant the motion to suppress (Roviaro v. United States (1957), 353 U.S. 53, 1 L. Ed. 2d 639, 77 S. Ct. 623.) It has also been held that where an informant helped to set up the commission of a crime and was present at its occurrence, his identity must be disclosed whenever his testimony may be relevant and helpful to a defendant's defense. Portomene v. United States (5th Cir. 1955), 221 F.2d 582; United States v. Conforti (7th Cir. 1952), 200 F.2d 365; Sorrentino v. United States (9th Cir. 1947), 163 F.2d 627.

There appears to be no fixed rule with respect to disclosure of informants and, according to Roviaro v. United States (1957), 353 U.S. 53, 1 L. Ed. 2d 639, 77 S. Ct. 623, none would be justifiable. Strong public policy reasons favoring nondisclosure of an informant must be balanced against a defendant's need for disclosure in order to prepare his defense (People v. Stoica (1987), 163 Ill. App. 3d 660) or where disclosure is essential to a fair determination of a cause (Roviaro v. United States (1957), 353 U.S. 53, 1 L. Ed. 2d 639, 77 S. Ct. 623). Whatever the circumstances, however, defendant has the burden of showing a need for disclosure. People v. Stoica (1987), 163 Ill. App. 3d 660.

In the present case, the State argues that the trial court properly denied defendant's motion to disclose the informant's identity because his request related to the preliminary issue of probable cause and not the fundamental question of his guilt or innocence and the court did not need to have the informant's identity disclosed in order to determine Chambers' credibility where Chambers' affidavit and testimony revealed that he had utilized his confidential informant five or six times which resulted in five arrests, the seizure of contraband, and three convictions.

We disagree under the circumstances here, which we find similar to the situation in Roviaro v. United States (1957), 353 U.S. 53, 1 L. Ed. 2d 639, 77 S. Ct. 623. In Roviaro, the petitioner was indicted for having violated the Narcotic Drugs Import and Export Act by having sold heroin to "John Doe," an informer, and transporting it knowing it to be unlawfully imported. John Doe had met with two Federal government agents and two Chicago police officers, one officer secreted himself in the trunk of Doe's car with a listening device, and Doe drove to another site in Chicago and met the petitioner. The petitioner entered Doe's car and they drove away. At another location, which turned out to be close to their original meeting place, Doe stopped the car. The petitioner then got out, walked a few feet to a nearby tree, picked up a small package, returned to the petitioner's car, making a motion as if depositing the package in the car, and then walked away to his nearby car. Subsequently, the petitioner was arrested, and the officer in the trunk of Doe's car related the foregoing and also stated that he had heard a conversation between the petitioner and Doe in which Doe greeted the petitioner, directed him where to drive, and instructed him to stop the car at some point. The petitioner then asked Doe about money owed him, and he advised Doe that he had brought him "three pieces this time." Once the car had stopped, the officer raised the hood of the trunk slightly and saw the petitioner walk to the tree, pick up a package, return to the car, and heard the petitioner say, "Here it is" and "I'll call you in a couple of days." Shortly after the petitioner's departure, the officer emerged from the trunk and found a package containing three envelopes of white powder.

Prior to and at trial, the petitioner requested disclosure of Doe, but the court, pursuant to the government's objection on the ground that Doe was an informer and his identity privileged, denied the petitioner's request, notwithstanding the fact that when the petitioner was arrested and confronted with Doe, Doe denied he knew or had ever seen the petitioner. The United States Supreme Court reversed the trial court, finding that Doe's identity should have been disclosed because:

"The circumstances of this case demonstrate that John Doe's possible testimony was highly relevant and might have been helpful to the defense. So far as petitioner knew, he and John Doe were alone and unobserved during the crucial occurrence for which he was indicted. Unless petitioner waived his constitutional right not to take the stand in his own defense, John Doe was his one material witness. Petitioner's opportunity to cross-examine Police Officer Bryson and Federal Narcotics Agent Durham was hardly a substitute for an opportunity to examine the man who had been nearest to him and took part in the transaction. Doe had helped to set up the criminal occurrence and had played a prominent part in it.

This is a case where the Government's informer was the sole participant, other than the accused, in the transaction charged. The informer was the only witness in a position to amplify or contradict the testimony of government witnesses. Moreover, a government witness testified that Doe denied knowing petitioner or ever having seen him before. We conclude that, under these circumstances, the trial court committed prejudicial error in permitting the Government to withhold the identity of its undercover employee in the face of repeated demands by the accused for his disclosure." (Emphasis added.) (353 U.S. at 63-65, 1 L. Ed. 2d at 647, 77 S. Ct. at 629-30.)

In a footnote, the Roviaro court further stated:

"e think that the court erred also in denying, prior to the trial, petitioner's motion for a bill of particulars, insofar as it requested John Doe's identity and address. Since Count I was then before the court and expressly charged petitioner with a sale of heroin to John Doe, it was evident from the face of the indictment that Doe was a participant in and a material witness to that sale. Accordingly, when his name and address were thus requested, the Government should have been required to supply that information or suffer dismissal of that count." (Emphasis added.) 353 U.S. at 65 n.15, 1 L. Ed. 2d at 647 n.15, 77 S. Ct. at 630 n.15.

Although the instant case concerns a challenge to a warrant, we believe that the rationale and principles underlying the Roviaro decision are applicable here in order for a fair determination of the cause, i.e., defendant's challenge to the search warrant. An examination of Chambers only was hardly a substitute for an opportunity to examine the informant who, according to Chambers, allegedly took part in the betting conversation for which defendant was charged, who had helped to set up the crime charged, and who played a prominent part in it. Like the situation in Roviaro, the informant here was the only witness in a position to amplify or contradict Chambers' testimony. Without any corroborating evidence, this was a matter of perjury by either Chambers or defendant, and in the interest of the truth-finding process and Justice, the informant should have been disclosed.

We further observe that the State's argument that Chambers never alleged in the complaint for a search warrant that defendant was the receiver of the telephone calls does not change our Conclusion and is without merit. Clearly the State believed defendant was the person receiving the telephone calls at issue based on the fact that the informant had given the name of "Augie" to Chambers, which he relied on when Illinois Bell allegedly told him that the telephone number was registered to "August Zymantas." We also note that the trial court, in rejecting defendant's argument prior to his first appeal that the search warrant did not particularly describe the person to be searched, held the same belief based on the following colloquy:

"THE COURT: But it was rational to assume that the Augie who spoke on the telephone is the Augusta Zymantas to whom the telephone is registered.

: So the court would rely in fact that the phone is registered -- .

THE COURT: To Augusta Zymantas, who is called by caller, 'Augie.'" (Emphasis added.)

We further observe that the court, having denied defendant's request for disclosure of the informant relative to his challenge of the search warrant, should have allowed disclosure at trial, since the informant was a material witness, like the one in Roviaro. Apparently defendant's counsel stipulated to the evidence presented at the Franks hearing upon trial of the case to the court because the court had denied disclosure of the informant. Clearly, a denial of a request by defendant for disclosure of the informant at this stage of the proceedings would have been prejudicial error.

We next address defendant's final argument with respect to the trial court's denial of his motion for discovery. In that motion, defendant sought the name of the person Chambers spoke to at Illinois Bell who allegedly told him that the subject telephone number was registered to "August Zymantas," various documentation relative to police procedure, and Chambers' own method in obtaining unpublished telephone numbers. Since this court determined on appeal that the fact that the number was registered to defendant's wife and that that fact was not "a matter of very small consequence" as the trial court had previously determined, it follows that the trial court upon remand should have allowed defendant's motion for discovery relative to this alleged "matter of very small consequence." At the least, the fact that the telephone was registered to defendant's wife, and not defendant, created some lack of credibility attributable to Chambers' sworn statement. Moreover, in light of the fact that the State and the trial court erroneously believed the telephone was registered to "Augie" (i.e., defendant), and that he received the telephone calls, as discussed above, defendant's motion for discovery should have been granted.

Similarly, the court should have admitted the letter from defendant's employer. We find the State's argument that the letter was not relevant because Chambers never alleged that defendant was at home to receive the informant's telephone calls is without merit for the reasons discussed above concerning the trial court's and the State's belief to the contrary.

Based on the foregoing, we hold that the trial court abused its discretion in denying defendant's motions for discovery and disclosure of the informant, as well as his request to introduce as evidence the letter from his employer. The hearing defendant received was no hearing at all and was not conducted to reach a fair determination of defendant's challenge to the search warrant. Accordingly, we reverse and remand the cause with directions that the court conduct a new evidentiary hearing and grant defendant's motions for discovery and disclosure of the informant and that it admit defendant's letter of employment into evidence. In remanding this cause, we express no opinion with respect to defendant's success or failure in the proceedings.

Reversed and remanded, with directions.

APPENDIX NO. 1

Colloquy exclusively between the trial Judge and the defense counsel on the prosecutor's objection to the admission of the Nancy Zymantas' Bell Telephone bills into evidence.

"MR. SCHULTZ [Defense Attorney]: It's [Nancy Zymantas Bell Telephone bills] in evidence, part of the record.

THE COURT: Not in this hearing.

MR. SCHULTZ: It was made a part of that motion, your Honor. I'm simply asking that the witness be allowed to testify from documents which are --

part of the petition, the document itself that was filed and made a part of the court record and about which there were hearings . . . and about which the court referred to in a prior proceeding, to which this morning's hearing -- proceeding relates to. . . .

. . . n the course of the proceedings in this case in 1983 or in 1984 this particular petition, this motion that I've handed to Mr. Zymantas was presented and received by this court and the contents of it considered by this court, including the Xerox copy of the phone bill for the telephone number which is in question this morning.

THE COURT: Who testified in connection with it?

MR. SCHULTZ: I wasn't here, your Honor.

THE COURT: Wait. Wait. You needn't keep repeating that you weren't here because you are here now and we assume that you know the answers to all the issues that you raise. You are raising the issue so we assume that you know from the record that you have dealt with. The fact that a document was referred to in the motion doesn't put it in evidence.

MR. SCHULTZ: It is a part of that motion, your Honor, the same as the pleadings, your Honor. If I were to ask Mr. Zymantas to refer to and testify from the indictment in this cause -- .

THE COURT: He couldn't do it.

MR. SCHULTZ: In another courtroom, your Honor, I received a different ruling. Obviously, this court's ruling controls.

THE COURT: Testify from an indictment that he didn't prepare?

MR. SCHULTZ: Correct.

THE COURT: Supposing there was a mistake in the indictment that someone had prepared, would he go ahead and testify to that as though it was some verified fact?

MR. SCHULTZ: That was precisely the situation in the other case, your Honor.

THE COURT: I can imagine that it was. It would not be anything unusual in the kind of returns that we get from the grand jury division here, but I don't understand though what new rule of evidence you're talking about, how something gets into evidence because it is pled it is automatically in evidence? This is something new.

MR. SCHULTZ: I believe that there are things that are before the court and which the court as fact-finder may be requested to take notice of and consider other than those things which are specifically placed into evidence through testimony, and I submit -- .

THE COURT: There's a photostat of some kind of a utility bill as a page in this pleading. Certainly there's no entry into evidence by virtue of such an addition. It is, as you say, it is an attachment here following the affidavit So -- .

MR. SCHULTZ: Your Honor, I -- .

THE COURT: I don't see any necessity of referring to it. The witness here is testifying from his personal knowledge of events, so I don't see any necessity to refer to this.

He's already testified he was not the subscriber. That's his testimony under oath. He may also testify probably as to who the subscriber was, without any reference to this or verification or authentication.

MR. SCHULTZ: My purpose in seeking to elicit that testimony, your Honor, is because I think the court will properly weigh the testimony of this witness based on issues of credibility, and the document that I seek to have the witness testify from has an indicia of credibility that I think is greater than that, may well be greater than that, and that would be the purpose of offering it. Your Honor, I am taken by surprise -- .

THE COURT: You can't do it by referring to a page in your pleading and which contains a Xerox copy of some invoice.

MR. SCHULTZ: Your Honor, I'm taken by surprise.

THE COURT: I don't know why.

MR. SCHULTZ: I'm taken by surprise because this court in the trial record frequently referred to the facts to its knowledge of the telephone number in question being registered to Nancy Zymantas. The Appellate Court record is replete with those same references, your Honor, and it is part of the pleadings.

THE COURT: I hope you're not asking me to remember what I said during the course of this ...


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