Appeals from the Circuit Court of Cook County, First Municipal
Court; the Hon. RICHARD A. NAPOLITANO, Judge, presiding. Reversed
in part, affirmed in part.
MR. JUSTICE KLUCZYNSKI DELIVERED THE OPINION OF THE COURT.
Rehearing denied April 1, 1965.
Defendant, Kay Jarrett, by informations filed in the Municipal Court of Chicago, (prior to the effective date of the Judicial Article) was charged with the offenses of soliciting for prostitution (Ill Rev Stats 1963, c 38, § 11-15(2)), and pandering (Ill Rev Stats 1963, c 38, § 11-16(2)). She was found guilty in a trial before the court on both charges and sentenced to the county jail for a term of ninety days in each case, the sentences to run concurrently.
Defendant appeals contending the trial court committed reversible error in admitting in evidence, as proof of the guilt of the defendant, the statement of witness, Sandra Silver, and in refusing to permit the defendant to cross-examine a police officer concerning a person who was present on an occasion involved in the offenses charged. Defendant further argues that the crime of pandering, the punishment for which may be imprisonment in the penitentiary, was not within the jurisdiction of the Municipal Court prior to the effective date of the Judicial Article, and prosecution could not be commenced by an information without a waiver by defendant.
A review of the evidence and conduct of the proceedings is necessary to pass upon the contention that reversible error was committed in the trial.
Thompson Phelps, a Chicago police officer, assigned to the prostitution unit, testified that he, in the company of another man, saw defendant at her apartment on September 10, 1963, at 7:45 p.m.; that he told her he was a representative of a company and as such had many rich clients; that if she could get nice looking young girls who could take care of these men sexually he could secure contacts. Defendant replied that she could help and stated that the girls she had were nice looking well dressed young girls. When he asked how much it would cost him she said "$25 for me and $50 for each girl." He agreed and told her he wanted the girls for Thursday evening, September 12 at about 8:00 or 8:30 o'clock; that he would give her a "ring" and let her know; and that defendant had warned him not to mention sex because her phone may be tapped by the police department.
On Thursday, the 12th, he called her and said he would be over shortly "to take her out to dinner" to which she agreed. He arrived at her apartment alone about 7:45 p.m., asked where the girls were and she said they were coming right over. He informed her that he had the men waiting for him at a certain motel and gave her the room numbers; that he wanted to make sure that these girls would "french" and that his clients would be "taken care of." She asked him if he was trying to "needle" her. Officer Phelps testified further that his clients expected the girls to indulge as he indicated and he did not think the clients would accept them. The deal was off. "Well," she said, "I have got these two girls. I don't have any money to pay them, pay their cab fare, leave me $10 and why don't you let the fellows see the girls and let them decide what they want to do." He said he would see if his clients would "take them" under that condition.
He called her at 8:30 from the "hotel" room (two other officers were with him at the time) and said, "I have the men; are the girls there for the sex party?" She answered yes and he stated that he would be right over. He arrived at her apartment at 8:45 or 9:00 p.m. She told him that she had warned him about using the telephone. She requested his identification and after he showed it to her she said she didn't know he was from Texas. He took out $40 and said, "Here is the rest of the $50 for the girls, let me see the girls." She accepted the money and went "in" the back and came out with Sandra Silver and Ann Walker. Sandra said, "Why Detective Phelps of the Chicago Police Department." He denied being Phelps to which Sandra replied that she knew he was. Defendant then said, "Don't you fellows ever give up trying to get me?" She "tried to get" him to admit that the girls weren't going to go out for prostitution. Defendant and the girls were arrested and taken to police headquarters.
During the cross-examination of Phelps, counsel for defendant attempted to elicit from him the name of the man who accompanied him on the first visit. Objection was made by the state "on the ground of informer's privilege" which objection the court sustained. Defense counsel then queried whether the "other man" did not represent himself as a man from a well recognized detective agency *fn1 and objection to the question was again sustained. Phelps did say that the man introduced himself as a supervisor of that detective agency.
Sandra Silver was called as a witness by the prosecution. When she refused to testify on the grounds that her answers might incriminate her, the state produced an immunity petition and the court entered an order of immunity and dismissal of all charges against her. Sandra testified that she knew the defendant Kay Jarrett approximately six months; that she was employed by her, and a few days prior to the 12th had a conversation with her regarding this employment. Defendant knew she (Sandra) was going back to school and making very little money. Sandra was aware that defendant ran an escort service which subject came up during the conversation. Defendant said a gentleman would take her for dinner and she would "make something as a tip." The next time she saw her was on the 12th when defendant called her to come over and told her she talked to a man who mentioned something about sex and wanted more than a dinner date. About an hour and a half before the officers entered the apartment defendant told her she had called the "deal" off; that she refused to send "us"; and that she was never approached by the defendant to commit an act of prostitution.
The State claimed surprise as a result of this testimony informing the court that Sandra had previously given a written statement diametrically opposed to what she now testified. The State requested that she be called as a court's witness, subject to cross-examination, which request was granted over defendant's objection.
On cross-examination by the State she admitted making a written statement to the police on the night of September 12, in the presence of Phelps and police officer Halloran. Upon being shown this statement she said she answered most of the questions "even the answers, themselves, I definitely did give answers that coincided. But they have stuck some extra things in here." Upon the questions and answers of the statement being put to her she admitted saying that September 12 was the first night she worked for the defendant, Kay Jarrett; that she was approached by the defendant to commit acts of prostitution; that she would go into court and testify against her and tell all she knew about the prostitution operation defendant conducted; and that she signed the statement which recited that it was made of her own free will without any promises being made to her. The State offered the document in evidence and it was admitted. When cross-examined by defendant's counsel she said the statement that Kay Jarrett approached her to commit acts of prostitution was false; that the statement was the result of strain, fear of arrest and publicity, police threats and promises; and a promise to be released without obtaining her own bail.
Officer J. Mildice, mentioned by Sandra as committing the threats and coercion, testified that officer Phelps brought her into his office at the police station because she wanted to talk to the boss, the commanding officer of the unit; that when she wanted to know what would happen if she gave a statement against Kay Jarrett, he told her that the state's attorney would be informed of this fact and decision would be up to him, and that was all he told her about giving a statement.
John Halloran, an officer in the unit, took the written statement from Sandra in the presence of Ann Walker, the defendant, and Thompson Phelps. The three women were sitting two or two and a half feet away from him at the time. Sandra did not seem to be upset and he made her no promises. Sergeant Mildice was in and about the office during the taking of the statement.
Defendant, in this appeal, does not dispute the sufficiency of the evidence but charges that errors of the trial judge require reversal. It therefore is not necessary that we detail the testimony given by the defendant in her own behalf, except to summarize insofar as it bears directly upon the matters in issue. She said she met officer Phelps on the "Sunday" night previous to her arrest. When her doorbell rang she said "Who is it? He said this is Red with ____ Detective Agency, can I come up, or do you remember me, can I come. . . . I pushed the buzzer and admitted him and this man was with him (indicating officer Phelps)." She opened the door to her combination living room and office and this fellow, Red, who had in fact been with ____ Detective Agency as a guard around conventions, and whom she had met, came in. She said she had been active around conventions a great deal then. She further said Red, highly intoxicated, fell on the floor and had to be assisted up to the davenport. Despite the fact he was "pretty" intoxicated, Red was "pretty" coherent; he did most of the talking. She related having a conversation with regard to providing "some company" for certain clients of theirs, to go to dinner and cabareting and to do the town; that although she was virtually out of business she would see what she could do to get someone; that when the remark was made "that if they wanted to get laid," she didn't want to hear any more about it; that Red then spoke up, "Kay only knows nice girls," and that when query was made about fees, Red "mouthed $50." She said her fee was $25 and the girls' fee depended on the number of hours they stayed. But there was nothing definite. They were to let her know Thursday.
Phelps, using the name Don Duncan, conversed with her on Thursday. Although he said that they were at the motel and wanted to get laid, she told him that she had a couple of girls "but let's forget it, just give me $10 to pay their cab fare" and he gave her the $10 and left. He later called, saying he talked to his clients and that they were willing to take just the dinner date and cabareting. He came to the house and said that he was going to give her $50 ...