APPEAL from the Circuit Court of Cook County; the Hon. MARVIN
E. ASPEN, Judge, presiding.
MR. JUSTICE LINN DELIVERED THE OPINION OF THE COURT:
Defendant, Marlene Swimley, was charged by indictment with the offense of solicitation to commit murder. (Ill. Rev. Stat. 1973, ch. 38, par. 8-1.) Specifically, defendant was accused of attempting to contract for the murder of her husband. Following a trial by jury, a verdict of guilty was returned. Defendant was sentenced to the penitentiary for a term of three to nine years.
The pertinent facts of this case, as set out at trial, need to be stated at some length:
In early November of 1973, in Schaumburg, Illinois, defendant's son by a prior marriage, Joe Enderle, age 13, visited a neighbor, Kevin Senne, age 15. Kevin was told that Joe and his mother were going to attempt to kill defendant's husband, Duane Swimley, and was asked whether he knew anyone who would do it. Both boys went to the Swimley home and, in defendant's presence, Kevin told defendant that he thought Tom Mangione could accomplish the task. Kevin had heard about Mangione from a 13-year-old neighbor and friend, John DeSpain, who was also known as John Heying. John had recently left Schaumburg and moved to California to reside with his uncle.
On November 22, Kevin spoke by telephone to John DeSpain in California and asked him for Mangione's telephone number, stating that defendant wanted her husband killed. John did not know Mangione's number, but told Kevin to call his younger sister, Kathy DeSpain, who might know the number.
Upon calling Kathy the next day, Kevin was told that Mangione now lived in Rochester, New York, but that she didn't know his phone number. Kevin again called John DeSpain and was told that there was no possibility that John could obtain the number.
Defendant, with Kevin and her son present, telephoned the long distance information operator in Rochester, New York, but was informed that Tom Mangione had an unlisted number. A short time later, defendant again called the Rochester operator, stating that there was a death in the family and that the operator should contact Mangione to inform him that he should telephone Kevin, giving the phone number at the Swimley home.
On December 1, 1973, after receiving the message, Mangione called the number and asked for Kevin Senne. Mangione, after some conversation, on being asked if he knew someone who would commit a murder, said that this "must be some kind of a joke," and hung up. After this conversation, Kevin, Joe and defendant discussed the possibility of finding someone else to kill defendant's husband.
Subsequently, Kevin and John DeSpain, who was still in California, had another telephone conversation during which John stated that he might consider murdering Duane Swimley. On December 7, there was a flurry of phone calls between John and Kevin. John asked whether defendant could fly him and his cousin back to Chicago if he would commit the murder. He explained that he had an argument with his uncle and had run away and no longer wanted to stay in California. Kevin replied that he would try to speak with defendant, and arranged to call John back. That evening, Kevin related his conversation with John to defendant, who replied that she would try to get the airline tickets for the trip to Chicago for John and his cousin. Kevin called John back from the Swimley home, telling him that defendant would try to get the money for the tickets. John then took a bus to Sacramento, California, and, being without money for transportation, walked about 15 miles to the Sacramento airport where he hoped to pick up the tickets paid for by defendant. He called Kevin who told him to stay at the airport until arrangements were completed to make the tickets available.
After telephoning various airlines, reservations for two tickets were made under the name of M. Brown on United Airlines for Master B. Enderle and Master J. Enderle on a flight from Sacramento to Chicago. The tickets, which were to be picked up at the Sacramento airport, cost $269.25. This amount had been prepaid in cash. A call was made to John and defendant told him the tickets could be picked up at the airport the following day.
After this telephone conversation, John became frightened. He telephoned his grandfather and returned to his grandfather's home without informing Kevin or defendant. After a period of time, defendant became agitated that John hadn't arrived and referred to a previous time that a man she had hired to kill her husband had absconded with $1200.
Meanwhile, on the following day, December 8, 1973, Rock DeSpain, John's stepfather, visited Tom Mangione in Rochester. Mangione was the boyfriend of DeSpain's daughter. DeSpain often called Mangione "the godfather." Mr. DeSpain was a manufacturers' representative for car wash equipment and had come to Rochester to assist Mangione in purchasing equipment to be installed in a gas station Mangione had purchased. Mangione told DeSpain of the telephone conversation with Kevin. DeSpain, knowing that Kevin and his son John DeSpain were friends, felt that the situation might be serious and that he himself might possibly be the intended victim. He asked Mangione to call Kevin. Mangione called but failed to reach Kevin.
About four days later, after DeSpain had left Rochester, Mangione succeeded in contacting Kevin. Mangione told Kevin that a person named "Jimmy Sunshine" would do the murder and Kevin stated that "my buddy's mother wants her husband, wants to get her husband." Mangione stated that either he or "Jimmy Sunshine" would contact Kevin. Upon telephoning Rock DeSpain, Mangione was told that DeSpain would call the Schaumburg police and notify them of these events.
Officer Terry McGraw of the Schaumburg police department was contacted by DeSpain the following day. On January 23, 1974, after making an investigation, Officer McGraw informed the State's Attorney's office that two teenagers were attempting to hire a killer, and that telephone calls which were made for this purpose emanated from the Senne and Swimley residences.
Investigator Joseph Saladino of the State's Attorney's office attempted to reach Kevin Senne without success. He first called the Senne residence but did not receive an answer. Telephoning the Swimley residence, a male answered the phone. Saladino asked for Kevin Senne but did not speak with him. Saladino said that he was Jimmy Sunshine and would meet the person's mother at the Woodfield Mall Plaza parking lot near the theatre at 11 a.m. the next day.
The next morning, January 24, 1974, Saladino went to his office at 26th and California in Chicago and obtained authorization to use eavesdropping equipment. Saladino was outfitted with a transmitter and tape recorder, both of which were taped to his body under his shirt. He and four others from his office proceeded to Schaumburg to meet with the Schaumburg police.
After this meeting, Saladino proceeded alone in an unmarked vehicle to the Woodfield Mall parking lot, arriving shortly before 11 a.m. He parked near the theatre and saw a Sears truck parked approximately 75 yards away. The truck actually belonged to the Schaumburg Police Department and contained video tape equipment.
Within several minutes, Saladino saw a blue-black Lincoln Continental drive into the lot and park nearby. Saladino noted that the license plate number, 147347, was the same that he had been told to watch for. Defendant left the Continental and entered Saladino's car, seating herself on the front passenger's seat. The following conversation occurred:
"JOSEPH SALADINO: I understand that you want to see me.
MARLENE SWIMLEY: Yeah, You're a friend of Tom Mangione's right. Ah, my oldest one talked to Tom, and ah you said something about it could be done over there.
JOSEPH SALADINO: It can be arranged. What is it exactly do you want, you know, what's, who is it. What's it about?
MARLENE SWIMLEY: Well, it's my husband.
MARLENE SWIMLEY: What do ...