APPEAL from the Circuit Court of Cook County; the Hon. MARK E.
JONES, Judge, presiding.
MR. JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:
After a bench trial defendant, Ronald McCommon, was found guilty of solicitation to commit an aggravated battery and was sentenced to three years' probation. Defendant appeals, presenting the following issues for review: (1) whether defendant was proved guilty of solicitation beyond a reasonable doubt; (2) whether defendant was prejudiced by the fact that the State did not call as a witness the intended victim of the battery; (3) whether the trial court erred in refusing to allow defendant to cross-examine a prosecution witness as to the witness' use of narcotics; (4) whether the trial court erred in admitting into evidence a tape recording of a conversation between defendant and two prosecution witnesses; (5) whether the trial court in reaching its decision relied upon incompetent evidence; and (6) whether the trial court erred in questioning defendant during the State's cross-examination of defendant.
Defendant was charged by three indictments with one count of official misconduct and two counts of solicitation. The indictments charged that on June 1, 1976, defendant, who was at the time a police officer for the city of Evanston, requested and encouraged Joseph Saladino, an investigator with the Cook County State's Attorney's office, to commit an aggravated battery upon Bobby Jones. *fn1 The following evidence was adduced at trial.
James Gillespie, police captain with the Evanston Police Department, testified that defendant was a police officer for the city of Evanston from May 29, 1973, to October 22, 1976.
Bernard Carey, State's Attorney of Cook County, testified that at approximately 12:55 p.m. on June 1, 1976, he received a telephone call from an Assistant State's Attorney, Frank DeBoni. DeBoni related facts regarding an investigation the office was conducting involving a member of the Evanston Police Department. DeBoni then requested Carey's consent to overhear and record a conversation between such officer and a consenting individual from the office. DeBoni stated to Carey that a crime was about to be committed and that the individual who brought such fact to the State's Attorney's attention would consent to the recording and would wear the electronic recording equipment. DeBoni said the conversation would probably take place that same evening. Carey gave his consent and requested that the conversation be overheard. The authorization was for a 24-hour period provided that the individual gave consent. Carey did not authorize any particular person to wear the equipment but rather authorized the recording of a particular conversation. Frank DeBoni testified to substantially the same facts as Bernard Carey and testified further that Amonda Taylor was the person who had informed the State's Attorney's office of the possibility of a crime beng committed.
Amonda Taylor testified as follows: Taylor had been convicted of sale of controlled substances and conspiracy, and he was presently incarcerated in a Federal institution, the Metropolitan Correctional Center. On May 14, 1976, Taylor was in a courtroom in Evanston, Illinois, and he saw defendant. Defendant approached Taylor and said he was in court with regard to a gambling arrest of Bobby Jones. Defendant said he wanted Taylor to sell him some "reefers" and to see if Taylor could set defendant up with someone to do something to Jones. Defendant said he wanted Jones hurt. Defendant was mad because Jones was getting off lightly with arrests and he was tired of Jones making a fool of him. Defendant gave Taylor his phone number. Taylor called defendant later that same day and told defendant that he was checking on people to take care of Jones and that he was going to Springfield for a week and would be in touch. Taylor called defendant on May 15, 1976, and said he was leaving town. Three or four days later Taylor called defendant from Springfield and said he had 10 pounds of marijuana and that he was in touch with some people and would call defendant when he returned to Evanston. On May 23, 1976, defendant called Taylor in Springfield and wanted to know when he could meet the people who would take care of the business with Jones. Taylor told defendant he could meet them the next week. On May 27, 1976, Taylor went to the State's Attorney's office at 2600 South California Avenue, Chicago, and met with Mr. Prendergast and Ms. Peigan. After the meeting, Taylor called defendant and told him they could meet on Tuesday, June 1, 1976. On June 1, 1976, Taylor called defendant and told him to meet Taylor at 7:30 p.m. at the Skokie Hilton. Prior to meeting with defendant, Taylor gave his consent to have the conversation overheard and recorded. Taylor was present for the entire conversation between himself, investigator Saladino and defendant.
On cross-examination Taylor testified that he had been in custody since July 6, 1977, and that he had previously been convicted of conspiracy to defraud and embezzle and was confined on those charges also. On June 1, 1976, Taylor lived in Springfield but he stayed in Evanston and he knew Jones from Evanston because he frequented a social club that Jones operated. Taylor knew Jones 10 or 11 years but did not work for Jones. Taylor talked to Jones on May 31, 1976, but not about the plot against Jones. However, Taylor did tell Jones about the plot on May 14, 1976, after Taylor left court. On June 1, 1976, Taylor met Saladino at approximately 4 p.m. in the cocktail lounge at the Skokie Hilton. Taylor called defendant's residence twice to inform defendant of the arrangements. The conversation between Saladino, Taylor and defendant lasted about 30 to 45 minutes. They began talking in the lounge and then finished outside in Taylor's automobile.
Joseph Saladino, an investigator for the State's Attorney's office in Cook County, testified that between 3:30 and 4 p.m. on June 1, 1976, he went to the Skokie Hilton and met with Amonda Taylor, who had a room in the motel. At approximately 8 p.m. Saladino met with Taylor and defendant and had a conversation with them in the lounge and in an automobile. Saladino consented to the recording of the conversation and had the recording equipment on his person. After the conversation Saladino removed the recording equipment and inventoried the tape by scratching his initials on the tape wheel and cassette disk, placing the tape in an envelope with his name on it and delivering it to the office at 26th and California. Saladino identified the envelope and cassette tape and tape wheel, and such items were admitted into evidence. The tape was then played in court and transcribed by the court reporter. At the beginning of the tape officer Saladino identified himself and the date, June 1, 1976, and stated that the recording was in relation to the solicitation to commit an aggravated battery or murder against Bobby Jones. The conversation, as transcribed by the court reporter, was, in pertinent part, as follows:
"Other Voice: * * * Ramono says you want this guy Jones chopped, right?
A Voice: I just wanted him bumped aside the head, [expletive deleted].
Other Voice: [Expletive deleted.] You want his legs broken, arms broken, something like that? Something make him wake up. You want me to leave a message?
Other Voice: You will take care of that?
Other Voice: So, in other words, you don't want me to kill him, just want me to break his arms, break a leg?
Other Voice: Put him in the hospital?
A Voice: Put him in the hospital where he can rest for a while.
Other Voice: Okay. Any particular time?
A Voice: As soon as I can come up with this money. I don't know if Armondo [sic] told you, I am not no big [expletive deleted] has a big bunch of money. I am waiting on my check to come from the income tax, that's what I'm planning to use it for.
If I can get some money good faith bring it to you and get it to you early, that is what I want to be able to do. I'd rather just pay you the whole thing in one lump sum.
Other Voice: If I were dealing on the facts you are a copy [sic] I didn't even know that surprises the hell out of me, but I am going to tell you, I am still a little shocked.
Why? Why do you want this guy chopped?
A Voice: When I came on I tried to help the cat, be nice running the houses paying off these things.
Other Voice: Who is paying off?
A Voice: The chief. Well, the day I know is I been dealing with his bag man couple of other spots been paying off I had ...