Appeal from the Appellate Court for the First District; heard
in that court on appeal from the Circuit Court of Cook County,
the Hon. Louis B. Garippo, Judge, presiding.
MR. JUSTICE UNDERWOOD DELIVERED THE OPINION OF THE COURT:
Rehearing denied July 14, 1978.
Defendant, Paul Powell, was convicted of bribery (Ill. Rev. Stat. 1973, ch. 38, par. 33-1(a)) and solicitation (Ill. Rev. Stat. 1973, ch. 38, par. 8-1) in a bench trial in the circuit court of Cook County. He was sentenced to two years' conditional discharge and fined $4,000 on the bribery charge, and two years' conditional discharge on the solicitation conviction. The appellate court reversed both convictions (48 Ill. App.3d 723), and we granted leave to appeal. We reverse the appellate court.
The fact that the appellate court found "there is no evidence that Paul Powell tendered money to Jose Martinez to influence Martinez in either securing witnesses or investigating or prosecuting the criminal case entitled People v. Guevara" (48 Ill. App.3d 723, 728) necessitates more extensive treatment than we would normally consider required by this case.
Officer Jose Martinez, an investigator for the Gang Crimes Investigation Division of the Chicago Police Department, was the sole prosecution witness. His testimony, in substance, was that he had been assigned on July 13, 1973, to investigate a case involving Awilda Torres, who had been repeatedly stabbed on July 11. On the next day he arrested Juanita Guevara, the alleged assailant. She was charged with aggravated battery, and a preliminary hearing on this complaint was set for July 26.
Officer Martinez appeared at the hearing on July 26 and asked the court for a continuance because the stabbing victim, Awilda Torres, was still in the hospital in serious condition. At this hearing attorney Paul Powell, who appeared as Juanita Guevara's defense counsel, followed the officer out of the courtroom and asked to see the arrest report in the officer's case file. The officer complied, and Powell then motioned him to the southwest corner of the hallway and told him that the parents of the Guevara girl intended to sign complaints against Awilda Torres, charging her with beating Juanita's sister prior to the stabbing. The officer replied that they had the same rights as the victim, if they had a valid complaint. Powell then suggested to Officer Martinez that perhaps they could "get together" on the case, to which the officer replied that he did not work that way. Powell then gave him a business card, asked him to call in two weeks, and stated that he could get him a "bill" now and a "bill" in two weeks. Officer Martinez testified that he understood a "bill" to be street parlance for $100. The officer repeated that he did not work in that manner.
Later that day, Officer Martinez reported the incident to his supervising sergeant. The next day he related the conversation to the Internal Affairs Division of the Chicago Police Department and to an assistant State's Attorney.
On August 10, an assistant State's Attorney, with proper authorization, placed a recording device on a telephone in his office. Officer Martinez then used that telephone to call Powell at the latter's office. During the conversation, Powell again asked if he and Officer Martinez could get together on the case. The officer said "yes."
A court hearing in People v. Guevara was scheduled for August 20. Earlier that morning, a small, hidden tape recorder was attached to Officer Martinez. The officer controlled the device by means of a switch concealed in his right pocket. He was instructed to activate the recorder in Powell's presence, but not when there was excessive background noise or several people speaking at once. He then went into the courtroom. When Powell entered the courtroom and took a seat next to him, the officer turned on the switch and recorded their conversation. This recording was introduced into evidence at Powell's trial. During the conversation, Powell and Officer Martinez discussed how much money would be available for the latter. Finally, Powell offered Officer Martinez $250 if he could get the complaining witness to "drop the charges" against Powell's client. During a recess, Powell repeated this offer. The officer asked just how he could do this, and Powell told him to take the complaints against the victim and use them as leverage to get the victim and her parents to drop their complaints against his client, Juanita Guevara. Powell then gave Officer Martinez a hospital bill purporting to show that the sister had been hospitalized from July 14 through July 17. Powell thereafter obtained a court continuance until October 18.
On that morning Officer Martinez went to the office of the State's Attorney accompanied by the stabbing victim, members of her family and two witnesses. There, Officer Martinez was again fitted with a hidden recording device. He then proceeded upstairs to the courtroom where People v. Guevara was to be called, leaving the victim, her family and the witnesses waiting in the State's Attorney's office. Outside the courtroom, he met Powell, who asked if the charges were to be dropped, to which Officer Martinez replied "yes," that the victim and her family had told him to "forget about it."
When the case was called, Officer Martinez, pursuant to instructions from an assistant State's Attorney, falsely testified under oath that the prosecution witnesses did not want to prosecute because the victim feared retaliatory prosecution for beating Juanita Guevara's sister. The aggravated battery charge against Juanita Guevara was then stricken on leave to reinstate, and Officer Martinez and Powell left the courtroom.
Once in the hallway outside the courtroom, Officer Martinez testified he turned off the microphone because of noise. According to the officer, Powell told him to come by his law office at 2 p.m. that day. He refused, whereupon Powell asked him to follow Powell to his automobile which was parked outside the building. At Powell's request, the officer stayed a few steps behind Powell, and for this reason, he did not turn the hidden microphone on at that time. Both entered the car, and Powell began to drive around the block. As they approached a corner, he threw two $100 bills and a $50 bill on the floor in front of Officer Martinez's shoes. The officer picked the money up and handed Powell a subpoena to appear before the Cook County grand jury concerning the bribery which had just been completed. Officer Martinez then left the car. Powell drove a short distance, got out of his car and approached Officer Martinez, who turned on the miniature recorder. The ensuing conversation led to the indictment for solicitation of the offense of obstructing justice.
The tape of this conversation and a transcript thereof were admitted into evidence. It would unduly prolong this opinion to quote all of the relevant portions of this or the August 20 taped conversations. While background noise renders parts of both unintelligible, that which is intelligible may be fairly characterized as devastating to any contention that Officer Martinez initiated the monetary discussion or that Powell's payment was for any legitimate purpose. In the October 18 conversation defendant repeatedly pleads for a "pass," states the officer is "blowing my whole license," and urges the officer to hide the money and tell the State's Attorney defendant "stiffed him" (failed to pay). The following excerpt is illustrative:
"MR. POWELL: Please go with me and tell him I stiffed you.
OFFICER MARTINEZ: I can't. I I
MR. POWELL: Tell him I stiffed you.
OFFICER MARTINEZ: I just can't.
MR. POWELL: Please. I'm the president of my synagogue. Oh, my God. You're gonna Please, ...