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People v. Kennedy

DECEMBER 4, 1975.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

JAMES ALBERT KENNEDY, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Sangamon County; the Hon. I.J. FEUER, Judge, presiding.

MR. PRESIDING JUSTICE SIMKINS DELIVERED THE OPINION OF THE COURT:

Defendant-appellant, James Albert Kennedy, was charged in two complaints, with the offense of disorderly conduct as that offense is defined in section 26-1(a)(4) of the Criminal Code (Ill. Rev. Stat. 1973, ch. 38, § 26-1(a) (4)). Specifically the complaints alleged that the defendant relayed false bomb threats to the Illinois State Police by means of telephone calls made on August 8 and 9, 1974. Defendant was tried before a jury which returned a verdict of guilty. He was sentenced to 364 days in the Illinois State Farm at Vandalia. He was received at that institution on October 7, 1974, and his sentence expired on April 22, 1975. The case was submitted to this court on oral arguments heard October 3, 1975. We reverse and remand for new trial.

State Trooper Maurice Suits received a telephone call at State Police Headquarters on August 8, 1974. The caller "* * * a male subject, kind of heavy voice, * * *" said that four sticks of dynamite were supposed to go off at the Centennial Building at 4 P.M. The caller then hung up. The Centennial Building was evacuated; a search revealed no bomb, and no explosion occurred.

On August 9, 1974, Linda Perkins, a police clerk at State Police Headquarters received a call from a man who stated that "* * * yesterday at 3:30 the clock stopped at the Centennial Building and he rewound it. There will be a bang today at 4:00 o'clock, ha, ha, ha, ha." At this point the caller terminated the call. Again the building was evacuated; a search revealed no bomb, and no explosion occurred.

State Police Headquarters in Springfield has a permanently installed tape recorder which records all incoming calls on certain lines. Both of the foregoing calls were recorded. The calls were then rerecorded on a small, portable cassette. On August 19, 1974, two members of the State Police, Andrew Planitz and John Davis took the copy tape to the Centennial Building for the purpose of securing identification of the caller's voice. They began on the fourth floor for no particular reason. The two officers gathered together a group of eight supervisors, played the tape for the entire group, and requested that anyone who recognized the voice come up separately and inform the officers. Four of the supervisors made no identification. Four others, Norman Michael, Kenneth Dash, Ray Cundiff and Phyllis Freeman identified the voice as that of the defendant. None of the eight suggested any name other than the defendant's. The tape was also played for persons employed in the truck reciprocity office on the fourth floor of the Centennial Building. None of these individuals recognized the voice. On August 21, Officer Davis played the tape for persons employed in the Department of Personnel and three of those individuals identified the voice as that of the defendant, none of the persons in that department suggested any name other than that of the defendant. Defendant worked on the fourth floor of the Centennial Building.

On August 22, 1974, Planitz and Davis went to the Centennial Building and placed the defendant under arrest. The officers told the defendant what he was being charged with. He was then taken to an office in the Centennial Building where Planitz, Davis and Mr. Fahey, an investigator for the Secretary of State were present. Defendant was given the Miranda warnings, which were read to him. Davis testified specifically that the defendant was advised that he had a right to remain silent, that anything he said could and would be used against him in a court of law, that he had a right to have a lawyer present while he was being questioned, and that if he could not afford a lawyer one would be appointed for him. The defendant then indicated that he understood his rights and that he did choose to talk to the officers about the matter. The officers asked defendant to cooperate in solving the bomb threat problem, played the tape for him and asked him to submit to the making of a voice sample to be recorded on a portable tape recorder. Davis had written down the words of the bomb threat call "* * * in rough words" and pushed the paper towards defendant and was going to ask defendant to read those words in making the voice sample. At trial the Assistant State's Attorney put the following questions to Davis and elicited the indicated responses:

"Q. Had you gotten to that point? Had you asked him to read those words?

A. I completed writing that and asked him to talk into the microphone and he refused * * *

Q. * * * What, if anything, did you do with regard to Mr. Kennedy on that occasion?

A. We had Mr. Kennedy come into the office and we talked to him. We played the tape for him and asked his cooperation in solving this problem we was having of these bomb threats and gave him the Miranda warning and asked for a tape recording to be made of his voice at which time after giving him the Miranda warning he acknowledged he knew what it was, and that he would cooperate with us and when we asked him to submit to a sample of his voice on tape recording he refused to give it and stated that he preferred to talk to a lawyer."

No objection was made to either question, and no motion to strike the answers was made.

Officer Planitz, having testified that he and Davis had placed the defendant under arrest, testified as follows in response to questions asked by the Assistant State's Attorney.

"Q. Was any conversation had with him ...


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