{ "id": 3546360, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN THREZZY, Defendant-Appellant", "name_abbreviation": "People v. Threzzy", "decision_date": "1987-11-02", "docket_number": "No. 85\u20142202", "first_page": "180", "last_page": "185", "citations": [ { "type": "official", "cite": "163 Ill. App. 3d 180" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "501 N.E.2d 802", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "150 Ill. App. 3d 1", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3502146 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/150/0001-01" ] }, { "cite": "391 N.E.2d 366", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "76 Ill. 2d 289", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2982988 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/ill-2d/76/0289-01" ] }, { "cite": "477 N.E.2d 821", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "132 Ill. App. 3d 740", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3440823 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/132/0740-01" ] }, { "cite": "506 N.E.2d 1247", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1987, "pin_cites": [ { "page": "1252" } ], "opinion_index": 0 }, { "cite": "116 Ill. 2d 81", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5542977 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "93" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/116/0081-01" ] }, { "cite": "514 N.E.2d 812", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "161 Ill. App. 3d 995", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3467857 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-3d/161/0995-01" ] }, { "cite": "468 N.E.2d 969", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1987, "pin_cites": [ { "page": "973" } ], "opinion_index": 0 }, { "cite": "102 Ill. 2d 533", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3156641 ], "weight": 3, "year": 1987, "pin_cites": [ { "page": "541" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/102/0533-01" ] }, { "cite": "429 N.E.2d 461", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "463" } ], "opinion_index": 0 }, { "cite": "87 Ill. 2d 182", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3031666 ], "pin_cites": [ { "page": "187" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/87/0182-01" ] }, { "cite": "485 N.E.2d 349", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 7, "year": 1981, "pin_cites": [ { "page": "355" }, { "page": "357" }, { "page": "356" } ], "opinion_index": 0 }, { "cite": "109 Ill. 2d 80", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3126872 ], "weight": 7, "year": 1981, "pin_cites": [ { "page": "92" }, { "page": "96" }, { "page": "95" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/109/0080-01" ] } ], "analysis": { "cardinality": 686, "char_count": 12908, "ocr_confidence": 0.793, "pagerank": { "raw": 9.512548612150319e-08, "percentile": 0.5240965786036175 }, "sha256": "577a3f33aea368a63e69ccb3a7697a1dad54ee4379428281bb518f8d7e9cecda", "simhash": "1:a928b455195ca7df", "word_count": 2089 }, "last_updated": "2023-07-14T17:50:46.695850+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN THREZZY, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE BUCKLEY\ndelivered the opinion of the court:\nFollowing a jury trial, defendant John Threzzy was convicted of delivery of over 30 grams of cocaine (Ill. Rev. Stat. 1983, ch. 56\u00bd, par. 1401(a)(2)), possession of a controlled substance with intent to deliver (Ill. Rev. Stat. 1983, ch. 56\u00bd, par. 1401(a)(2)), armed violence (Ill. Rev. Stat. 1983, ch. 38, par. 33A\u20142), and conspiracy with intent to deliver (Ill. Rev. Stat. 1983, ch. 38, par. 8\u20142(a); ch. 56\u00bd, 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.\nAt 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\u2019s parking lot, at which time defendant approached the agents and told them his \u201cconnect\u201d wasn\u2019t home, but he would be back at 7:30 p.m. to complete the transaction.\nMueller 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\u2019s 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\u2019 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\u2019s waistband. Another police officer arrested Ameniero.\nAt 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\u2019s father, Jose Ameniero, testified that his son had known defendant since 1963.\nImmediately 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\u2019s 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\u2019s choice of private counsel was not prepared to proceed to trial.\nAlso prior to trial, defendant and Ameniero both moved for severance. Ameniero\u2019s 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\u2019s participation, and that the two codefendants\u2019 meeting on the day in question was \u201cinnocuous.\u201d He made the following offer of proof regarding defendant\u2019s 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\u2019s attorney stated that such proof would be elicited through the cross-examination of one of the agents, the result of which would \u201chave a significant prejudicial effect on Mr. Threzzy at a joint trial.\u201d He further stated that Ameniero\u2019s defense at trial would be \u201cI didn\u2019t do it and he did.\u201d The trial court denied Ameniero\u2019s offer of proof on the ground it was not relevant, as well as Ameniero\u2019s second offer of proof which purported to show that defendant was a con man who misled people. As a result, severance was ruled unnecessary.\nWith respect to defendant\u2019s 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\u2019s notes and the evidence of defendant\u2019s sources of narcotics on other occasions were inadmissible, while the photographs showing a prior relationship between the two codefendants were innocuous and possibly relevant. Thus, the court also denied defendant\u2019s motion for severance, stating that the case would be tried on what allegedly occurred on May 18, and the trial began.\nIn his opening statement, Ameniero\u2019s counsel referred to defendant as a \u201cdrug dealer\u201d who had various sources for his cocaine. Defendant\u2019s objection to this remark was overruled. Moreover, on cross-examination of Agent Mueller, over defendant\u2019s objection, Ameniero\u2019s counsel elicited that the agents had prior contact with defendant regarding the sale of 10 ounces of cocaine. Counsel also asked Mueller about defendant\u2019s 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\u2019s friend of cancer for $135,000. Finally, in closing argument, Ameniero\u2019s attorney accused defendant of the offense by stating, \u201cWe all know [Threzzy\u2019s] 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.\u201d Ameniero\u2019s attorney further implied in the argument that defendant was a dealer when he commented that defendant wanted the agents to think \u201che\u2019s got a source in a shiny, new car so he can do this kilo deal next week.\u201d\nThe jury ultimately acquitted Ameniero, but convicted defendant. On appeal, defendant argues that the trial court\u2019s denial of his motions for severance and substitution of counsel warrant reversal of his convictions.\nWe initially address defendant\u2019s contention that the trial court\u2019s denial of his motion for severance deprived him of a fair trial. Generally, \u201c \u2018defendants jointly indicted are to be jointly tried unless fairness to one of the defendants requires a separate trial to avoid prejudice.\u2019 \u201d (People v. Bean (1985), 109 Ill. 2d 80, 92, 485 N.E.2d 349, 355, quoting People v. Lee (1981), 87 Ill. 2d 182, 187, 429 N.E.2d 461, 463.) In ruling on a severance motion, the court is to make a prediction about the likelihood of prejudice at trial, taking into account \u201cthe papers presented, the arguments of counsel, and any other knowledge of the case developed from the proceedings.\u201d (People v. Daugherty (1984), 102 Ill. 2d 533, 541, 468 N.E.2d 969, 973; People v. Wilson (1987), 161 Ill. App. 3d 995, 514 N.E.2d 812.) When evaluating the propriety of the denial of a motion for severance, a reviewing court looks to the facts and circumstances which existed at the time it was denied (People v. Daugherty (1984), 102 Ill. 2d 533, 468 N.E.2d 969), although subsequent events may illustrate the prejudice which results when the motion is not granted at the earliest point. (People v. Bean (1985), 109 Ill. 2d 80, 485 N.E.2d 349.) While the decision to order separate trials is within the sound discretion of the trial court, reversal may be ordered where there is an abuse of that discretion. People v. Byron (1987), 116 Ill. 2d 81, 506 N.E.2d 1247; People v. Wilson (1987), 161 Ill. App. 3d 995, 514 N.E.2d 812.\nIllinois recognizes that when codefendants\u2019 defenses are so antagonistic to each other that one of the codefendants cannot receive a fair trial jointly with the others, severance is required. (People v. Bean (1985), 109 Ill. 2d 80, 485 N.E.2d 349.) Here, this standard was met, as Ameniero\u2019s attorney tried repeatedly, in his opening statement, in his cross-examination of Agent Mueller, and in his closing argument, to destroy defendant\u2019s case. By depicting defendant as a drug dealer who had major outside sources, Ameniero bolstered his own innocence. This strategy resulted in prejudice to defendant which could have been avoided by separate trials. Clearly, the trial judge was made aware of his potential prejudice through Ameniero\u2019s offers of proof at the hearing on the severance motions. While the trial judge ruled such evidence inadmissible with respect to defendant at the pretrial hearing, much of it nevertheless was elicited at trial by Ameniero\u2019s attorney.\nIn this regard, the present case is analagous to People v. Bean (1985), 109 Ill. 2d 80, 485 N.E.2d 349, where the supreme court granted defendant Bean a new trial due to the denial of a severance from his codefendant Byron, despite the fact that \u201can overwhelming volume of evidence was presented\u201d against Bean. (See People v. Byron (1986), 116 Ill. 2d 81, 93, 506 N.E.2d 1247, 1252.) In so doing, the court stated:\n\u201cByron\u2019s defense was clearly entirely antagonistic to Bean\u2019s. In a word, Byron\u2019s defense consisted of the contention that Bean was the murderer and Byron was not even there. Byron\u2019s counsel elicited admissions from witnesses which implicated Bean and were totally irrelevant to Byron. Finally, Byron\u2019s closing argument labeled Bean as a murderer.\u201d (People v. Bean (1985), 109 Ill. 2d 80, 96, 485 N.E.2d 349, 357.)\nJust as the defendant in Bean, defendant in the instant case should have been tried separately, for he too experienced similar prejudice by his codefendant\u2019s counsel.\nIn response, the State, citing People v. Daugherty (1984), 102 Ill. 2d 533, 468 N.E.2d 969, and People v. Zambetta (1985), 132 Ill. App. 3d 740, 477 N.E.2d 821, argues that antagonistic defenses must be symmetrical for severance. The State contends that since defendant\u2019s defense was lack of proof, whereas Ameniero\u2019s defense was \u201cI didn\u2019t do it and he did,\u201d the two defenses are compatible, and severance was therefore not required. The supreme court in People v. Bean (1985), 109 Ill. 2d 80, 485 N.E.2d 349, makes clear, however, that co-defendants need not reciprocally blame one another to warrant a severance. Rather, \u201cany set of circumstances which deprives a defendant of a fair trial is sufficient to require severance.\u201d (People v. Bean (1985), 109 Ill. 2d 80, 95, 485 N.E.2d 349, 356.) As noted above, such circumstances are present here.\nThe State also maintains that even if the two defenses were antagonistic, denial of defendant\u2019s severance motion was proper because the evidence elicited by Ameniero\u2019s counsel was merely cumulative of the other evidence presented at trial. We disagree. The questions regarding the agents\u2019 investigation of defendant, defendant\u2019s offer to cure Agent Mueller\u2019s friend of cancer for $135,000, and defendant\u2019s drug source were presented only on cross-examination of Agent Mueller, and not through direct testimony.\nGiven our ruling that defendant was deserving of a separate trial, we need not consider whether defendant was entitled to substitution of counsel. We note, however, that the evidence at trial was sufficient for the trier of fact to conclude that defendant was guilty beyond a reasonable doubt. This does not mean we are making a finding as to defendant\u2019s guilt or innocence which would be binding on retrial, but rather our consideration of the sufficiency of the evidence admitted at trial will remove the risk of subjecting defendant to double jeopardy. People v. Taylor (1979), 76 Ill. 2d 289, 391 N.E.2d 366; People v. Jackson (1986), 150 Ill. App. 3d 1, 501 N.E.2d 802.\nFor the foregoing reasons, the judgment of the circuit court of Cook County is reversed and this cause is remanded for a new trial.\nReversed and remanded.\nCAMPBELL and MANNING, JJ., concur.", "type": "majority", "author": "JUSTICE BUCKLEY" } ], "attorneys": [ "James J. Doherty, Public Defender, of Chicago (Linda J. Seeley, Assistant Public Defender, of counsel), for appellant.", "Richard M. Daley, State\u2019s Attorney, of Chicago (Thomas V. Gainer, Jr., Robert M. Podlasek, and Jeremy C. Schwartz, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN THREZZY, Defendant-Appellant.\nFirst District (1st Division)\nNo. 85\u20142202\nOpinion filed November 2, 1987.\nJames J. Doherty, Public Defender, of Chicago (Linda J. Seeley, Assistant Public Defender, of counsel), for appellant.\nRichard M. Daley, State\u2019s Attorney, of Chicago (Thomas V. Gainer, Jr., Robert M. Podlasek, and Jeremy C. Schwartz, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0180-01", "first_page_order": 202, "last_page_order": 207 }