APPEAL from the Circuit Court of St. Clair County; the Hon.
DELMAR KOEBEL, Judge, presiding.
MR. JUSTICE HARRISON DELIVERED THE OPINION OF THE COURT:
Rehearing denied May 2, 1980.
Defendants, Leroy Roberts and Joseph Bonner appealed from a judgment of the circuit court of St. Clair County entered on a jury verdict finding them guilty of conspiracy, bribery and official misconduct. They were both sentenced to concurrent one- to three-year terms on each count and fined $4000. On appeal they contend that the trial court erred (1) in refusing to suppress certain recordings obtained by the use of electronic eavesdropping equipment; (2) in denying their motions for mistrial due to alleged prosecutorial misconduct; (3) in denying their motion to dismiss the conspiracy count on equal protection grounds; and (4) in admitting certain evidence alleged to be immaterial. For the following reasons we affirm the judgment of the circuit court.
From February through April 1976, the Illinois Bureau of Investigation (IBI) was engaged in the investigation of alleged payoffs from local tavern owners to East St. Louis city officials. As a result of conversations on February 5, March 21 and April 17, between IBI Agent George Murray and defendant Bonner, a lieutenant of the East St. Louis police department, and a conversation on March 13, between Agent Murray and defendant Roberts, an administrative aide to the mayor of East St. Louis, William Mason, defendants were charged with the aforesaid crimes as well as intimidation, a charge later dismissed by the State. Tape recordings of these conversations were made with the consent of Agent Murray, and it was those recordings which defendants moved to suppress.
A hearing on defendants' motion to suppress was conducted on September 29, 1976. Ronald Grimming, special agent squad leader of the IBI Belleville office, testified as to the procedure used in obtaining the State's Attorney's authorization to use the eavesdropping equipment. Agent Grimming testified that either by telephone or personal visit, he described the details of the subject investigation to the State's Attorney, suggested the need for using electronic eavesdropping equipment, and thereafter made "a request for a request" to use that equipment. The identity of those individuals to be recorded and the consenting party, Agent Murray, as well as the time of the anticipated recordings were expressly discussed. Oral authorization was given by State's Attorney Robert Rice on each occasion prior to the time of each recording. The electronic surveillance was then conducted with the consent of Agent Murray. The IBI prepared written forms of authorization which confirmed the prior oral authorizations and were signed by the State's Attorney. Those written authorizations contained the following limitations: (1) That IBI agents could use electronic eavesdropping equipment to hear or record all or any part of any conversations provided they obtained the consent of any one party to such conversations; (2) that the eavesdropping could occur only between certain hours on a specified date or dates unless further notification was received from the State's Attorney's office; (3) that the eavesdropping take place only within the boundaries of St. Clair County, and (4) that any information or evidence obtained through the use of the eavesdropping equipment be used or divulged only in criminal proceedings. Agent Grimming could not testify for certain that he had obtained written authorization prior to the time the surveillance was conducted, even though the written authorizations were dated prior to the time the eavesdropping occurred.
The trial court refused to suppress the recordings on the grounds that the authorizations given by the State's Attorney indicated who the individuals to be recorded were and who had consented to the eavesdropping. The first trial ended in a mistrial, and the second trial, beginning on October 13, 1976, was held for the following nine days. Harold Moore was also tried with defendants, and our opinion in his appeal, No. 78-232, is filed contemporaneously with the present one. Since a detailed review of the testimony is unnecessary for purposes of this appeal, we shall present only those facts necessary to the disposition of each issue raised by defendants. The jury returned a verdict of guilty on the three aforesaid charges, and defendants filed a post-trial motion which was denied. It is from that denial this appeal is taken.
Appellants first contend that the trial court erred in denying their motions to suppress the recordings, arguing that such recordings were obtained in violation of the applicable Illinois statutes. The pertinent provisions in force at the time of the alleged offenses read as follows:
"A person commits eavesdropping when he:
(a) Uses an eavesdropping device to hear or record all or any part of any conversation unless he does so with the consent of any one party to such conversation and at the request of a State's Attorney; or
(b) Uses or divulges, except in a criminal proceeding, any information which he knows or reasonably should know was obtained through the use of an eavesdropping device." Ill. Rev. Stat. 1975, ch. 38, par. 14-2.
"Any evidence obtained in violation of this Article is not admissible in any civil or criminal trial * * *." (Ill. Rev. Stat. 1975, ch. 38, par. 14-5.)
Appellants argue that the conversations were overheard and recorded without proper authorization or approval.
These questions have been recently resolved by the Illinois Supreme Court in People v. Kezerian (1979), 77 Ill.2d 121, 395 N.E.2d 551. There, as in the case at bar, oral authorization by State's Attorney Robert Rice was given to the IBI to record certain conversations after the time, nature of and parties to the anticipated recordings were explained to him. The request initiated with the IBI, but authorization was rendered by the State's Attorney. The electronic surveillance was then conducted. Subsequently, the IBI prepared written forms which confirmed the prior oral authorizations and were signed by the State's Attorney. Those written authorizations contained the same limitations as in the case at bar.
The Kezerian court, in discussing the source of the initial request and the restrictions of each authorization, forthrightly held that the procedures followed were sufficient under the eavesdropping statutes and that the recordings obtained ...