APPEAL from the Circuit Court of Cook County; the Hon. LOUIS
GARIPPO, Judge, presiding.
MR. PRESIDING JUSTICE DIERINGER DELIVERED THE OPINION OF THE COURT:
Paul Powell, an attorney at law, was indicted for the offense of bribery in indictment number 73-6348, and for the offense of bribery, solicitation and attempt in indictment number 73-6349. Both indictments were consolidated for trial, and the evidence offered at trial was the testimony of Officer Martinez of the Chicago Police Department, certain tapes and transcripts of taped conversations between Officer Martinez and Paul Powell, as well as the testimony of Paul Powell (defendant). The trial was held without a jury. Powell was found guilty of bribery in indictment number 73-6348 and solicitation in indictment number 73-6349. He was acquitted of all other charges and sentenced to two years conditional discharge and a $4,000 fine on the bribery conviction, and two years conditional discharge on the solicitation conviction.
The issues presented for review are (1) whether the defendant's conduct amounted to bribery, (2) whether there was sufficient evidence to sustain the conviction of the defendant for bribery as alleged, (3) whether there was a fatal variance between the proof adduced at trial and the allegations in the bribery indictment, (4) whether the indictment for solicitation charged an offense with the specificity required by law, and (5) whether there was sufficient evidence of solicitation as alleged to sustain the conviction. The pertinent facts follow.
On July 11, 1973, Awilda Torres was allegedly stabbed several times by Juanita Guevara. Juanita Guevara was arrested on July 14, 1973, and her cause was set for preliminary hearing in Branch 24 of the circuit court of Cook County for July 26, 1973. She retained Paul Powell as her attorney and on July 26 he appeared for her in court. On that date Officer Jose Martinez appeared and asked the court for a continuance since the victim of the stabbing was in the hospital and could not appear to testify. The case was continued until August 20, 1973.
As Officer Martinez left the courtroom on July 26, Powell approached him and asked to see the arrest report in the officer's file. The officer handed a copy of the report to him. Powell then told the officer the parents of the girl charged with the stabbing were intending to go to the district police station and sign a complaint against the victim, Awilda Torres, charging her with the battery of Rose Guevara, the sister of Juanita Guevara.
According to Powell, Martinez told Powell the case was closed and there would be a great deal of paper work, and asked Powell for $100 to take the complaints from the parents of Juanita Guevara. Powell told the officer it was not possible to pay $100, since Powell himself was not being paid that much. Powell left the officer with the understanding the Guevara family would contact the officer about filing a complaint, but no agreement was reached concerning the $100 asked for by Martinez. Later in the day Martinez in fact saw Juanita Guevara at the police station. He spoke to her father who wanted to file a complaint against Awilda Torres for striking Rose Guevara.
According to Martinez, on July 26 Powell asked about the complaint and mentioned that the Guevaras were planning to swear out complaints against Awilda Torres. Powell then gave Martinez a business card and asked him to call in a couple of weeks. Powell said, "I'll give you a bill now and a bill in two weeks." The office took the word "bill" as slang to mean $100.
Officer Martinez reported this incident to his superior officers and then to the state's attorney's office, where he was equipped with a recording device to be used on the date of the next court appearance, August 20, 1973. This device was attached to the officer's body in such a way as to be concealed from outside view. It was turned on at the discretion of the officer and was, at all times, under his control.
On August 20, 1973, during a recess of the court, Powell and Martinez had a discussion. According to Powell, Martinez was expecting some money and told Powell that Martinez could get the complainant to drop the charges against Powell's client if Powell would pay Martinez $250 for doing so. Powell was taken by surprise and told Martinez to go back in the courtroom for a few minutes, and Powell would think about it. Later, in another conversation between Powell and Martinez, Powell, while attempting to clear up the discrepancy over whether the officer wanted the money to do the paper work of filing a complaint or for getting the complaining witness to drop the charges, inquired of Martinez, "I'll give you $250 and you'll get them to drop the case, is that right?" and Martinez answered "Yes." The men parted and the case, when called, was continued until October 18, 1973. When the parties left the courthouse, Powell instructed his client and her family to locate Officer Martinez and swear out a complaint.
According to Officer Martinez, Powell offered the officer $250 if he could get the complainant to drop the charges. The officer asked how he was supposed to do that, to which Powell replied the officer could take a complaint from Juanita Guevara's parents alleging the complainant had injured their daughter, Rose, in the same incident out of which the battery charge grew. Then Officer Martinez could use the complaint as leverage to get the charges dropped against his client, Juanita. In connection with this conversation Powell gave the officer a hospital bill which purported to show Rose Guevara had in fact been in the hospital on July 17, 1973.
On the next court date in the case of People v. Guevara, on October 18, 1973, arrangements were made for Officer Martinez to again have recording equipment on his person and for Martinez to lie to the court, under oath, concerning the Torres family's unwillingness to prosecute. Martinez said the whole idea and suggestion to give perjured testimony came from the chief of the state's attorney's Criminal Division. This perjured testimony came to light later at Powell's trial when Martinez admitted his perjury at the Guevara trial.
Powell said on October 18, 1973, he and his client were ready for, and demanded trial. Powell was prepared with 11 witnesses for the defense. But, while the Torres family waited in the state's attorney's office, Officer Martinez, under oath, falsely told the judge the Torres family did not wish to prosecute. As a result, the case was stricken off the call and Powell and Martinez left the Criminal Court Building. There is no indication the judge had any knowledge of the officer's perjured testimony, and neither did Powell. He was ready for trial. Later, during the trial of Powell, Officer Martinez admitted Powell never told the officer not to bring witnesses to court. Coincidentally, Martinez testified it is not a rule of the Chicago Police Department that an officer bring witnesses to court.
Once outside the courthouse, Powell and Martinez again conversed. According to Martinez, Powell tried to avoid the officer, but finally the officer followed Powell to Powell's auto, which was parked a short distance from the courthouse. After both men entered the car, Powell drove around the block, and as he did so he threw $250 on the floor of the car. He asked Martinez if that was all right, and the officer said it was and assured Powell the case would not reappear in court. Powell then pulled to the curb. As Officer Martinez got out of the car, he handed Powell a grand jury subpoena relative to the alleged instant bribery, and then secretly turned on the hidden recorder. Powell told the officer he was blowing Powell's license to practice law and started to cry. Martinez ignored Powell's pleas and left Powell to return to the state's attorney's office.
According to Powell's testimony, on October 18, while outside the courthouse, Martinez followed Powell and demanded $250. Powell said he did not promise anything to Martinez and told Martinez to leave him alone. Powell ran to his car and got in. However, Martinez followed, entered the car before Powell could lock the door, and asked again for the money, while making threatening gestures. Powell became afraid of the officer and did not know what to do. In order to get rid of Martinez, Powell threw $250 on the floor of the car. Martinez picked up the money and handed Powell a grand jury subpoena.
Powell points out the fact that Martinez had the tape recorder off during the time between Officer Martinez' false testimony in court and the time Martinez ...