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People v. Harvey





APPEAL from the Circuit Court of Cook County; the Hon. DANIEL J. RYAN, Judge, presiding.


Rehearing denied May 19, 1981.

Following a bench trial, defendant was found guilty of two counts of solicitation to commit murder (Ill. Rev. Stat. 1975, ch. 38, par. 8-1(a)) and was sentenced to a term of 4 to 15 years. Defendant appeals.

The issues presented are: (1) whether defendant was denied his right to be present at all stages of the trial; (2) whether he was proved guilty beyond a reasonable doubt; (3) whether he effectively withdrew from any criminal plan prior to the occurrence of a substantive offense; (4) whether he was properly sentenced; and (5) whether erroneous admission of the evidence denied him a fair trial.

The following pertinent testimony was adduced at trial.

Fred Drucker, a lawyer with an office at 10 South LaSalle Street in Chicago, testified that while representing the Oak Brook National Bank, he filed suit against another attorney, Jason Mitan, to foreclose on certain properties and several bank accounts which Mitan owned. Mitan was represented by several attorneys, including Gerhard Heckler, whose office was located at 209 North LaSalle Street.

Drucker further testified that on July 8, 1977, he met Michael Filimoniuk in his office, who informed him that his life was in danger. The police were summoned and proceeded to search Filimoniuk, which produced a business card with the name of Gerhard Heckler and the address of 209 North LaSalle Street printed thereon.

Michael Filimoniuk testified that he was convicted of robbery in 1970 and burglary in 1975 and that he was presently in the custody of the Department of Corrections for a parole violation. Filimoniuk testified that early in June 1977, he was arrested on a theft charge. In his attempt to engage the services of an attorney, he had a conversation with Jason Mitan. The following day he went to 209 North LaSalle Street where, after learning that Mitan was not in, he spoke to Heckler about his case and informed him that he did not have enough money to hire a lawyer. After Heckler made a phone call, Filimoniuk was told he would have to talk with defendant. The same day Filimoniuk had a conversation with defendant in Heckler's office, where he informed defendant that he had been sent to him by Jason Mitan concerning the theft charge. Defendant stated that he would have to call Mitan and see what the deal was. After making the phone call, defendant asked Filimoniuk what he did. Filimoniuk responded that he was a burglar. Defendant then asked, "Do you run into cars" to which Filimoniuk responded, "Yes, I do. In fact, I have one right now, a '77 Monte Carlo." Defendant responded, "That's too hot. I can't handle it." When asked if he had any money, Filimoniuk indicated that he could maybe obtain $250 from his father. Defendant said this was not enough and resumed questioning Filimoniuk about other activities. After Filimoniuk indicated that he had done nothing else, defendant stated, "Maybe I got something for you, but we'll see. I have to check you out first." Subsequently Filimoniuk was represented by Heckler on the theft charge, which was dismissed.

The Monday following his court date Filimoniuk met defendant for a second time alone in his office, where defendant indicated that he had checked him out and that he looked clean. Defendant then stated, "I have something for you if you are interested in some cash." Filimoniuk said, "What?" to which defendant responded, "Have you ever killed somebody?" Filimoniuk answered no. Defendant then asked, "How much would you charge me to kill somebody?" When Filimoniuk answered $20,000, defendant responded that he was crazy. Filimoniuk explained that he was not going to jail for murder or get the electric chair for less than that amount. Defendant told Filimoniuk he could get anybody for $3000 because "the cheapest contract goes for about three or four, five thousand." Filimoniuk and defendant then agreed to $2500, but defendant insisted it be done his way. Defendant told Filimoniuk that he wanted him to go to Fred Drucker's office on Saturday morning, when Drucker would be working on his papers. Filimoniuk was instructed to say, "This is from Jason and Hart" before shooting Drucker in the heart. Defendant also stated that he would provide the gun and that he would try to get a "thirty-eight snubnose with a silencer." Defendant instructed Filimoniuk that it was to be done the following Saturday.

Filimoniuk saw defendant again on Thursday and was instructed that the shooting was to take place "Next Saturday" and that defendant would have the gun for him by next Friday. That weekend Filimoniuk was arrested and charged with grand theft. Filimoniuk called defendant who told him, "Don't worry. I'll try to have someone down there." Filimoniuk was subsequently represented by attorney Heckler and obtained a dismissal of the grand-theft charge.

Filimoniuk testified that in June he had asked defendant for a description of the man he was to kill. Defendant gave Filimoniuk a camera and instructed him to take pictures of the intended victim. After taking some pictures, Filimoniuk returned to defendant's office and described the man he photographed. Defendant responded, "That's him."

Filimoniuk testified that he next saw defendant on Wednesday, still in June. At that meeting defendant informed Filimoniuk that since he kept "getting busted" and causing defendant to provide him with an attorney, defendant was going to take $500 off the deal. Defendant told Filimoniuk that he still wanted him to perform the killing, but that "now we are going to have to kind of slow it down."

Filimoniuk next saw defendant on Thursday during the first week of July when defendant instructed him to make the hit on Saturday. At this meeting defendant gave Filimoniuk a .25-caliber gun to replace a gun Filimoniuk had borrowed from a friend.

The following morning, Friday, July 8, Filimoniuk went to defendant's office and was informed that defendant was not in. He then returned to his car and told his girlfriend, Janice Thompson, that defendant wanted him to kill this man on the following morning. Ms. Thompson warned him that he better think twice because it may be a trick and that he could get killed. After sending his girlfriend home, Filimoniuk went to the Greyhound bus station where he placed in a locker a suitcase containing the .25-caliber automatic and the camera which defendant had previously given him. Filimoniuk put the locker key in his shoe and proceeded to Drucker's office. Filimoniuk told Drucker that he would exchange some important information for a one-way plane ticket and that his life was in danger. Before giving any details, he secured Drucker's agreement to provide him with a plane ticket. Filimoniuk then told Drucker that he had been hired to kill him. Police arrived and searched Filimoniuk. He was escorted from Drucker's office and taken to police headquarters and then to the State's Attorney's office. Filimoniuk gave the key to the locker to Investigator Wagner, who later retrieved the items contained therein. A charge of disorderly conduct was later dismissed.

On Monday, July 11, Filimoniuk returned to the State's Attorney's office. After speaking with several assistants, Filimoniuk called defendant and said he would like to see him at 2 p.m. The assistants instructed him to talk to defendant about the "hit" and equipped him with a device to record the conversation. He went to defendant's office at 2 p.m. where defendant said that too many people knew about it and that Filimoniuk should lay off the hit. Defendant suggested that maybe he could "bust his [Drucker's] legs."

In a subsequent phone conversation, Filimoniuk asked defendant, "You're gonna give me $200.00 and you want me to forget about the hit too, right?" Defendant responded, "I want you to forget about everything you want to mention. I just want you to forget about it, you understand? Forget about it. Cause that's all I got, that's all I can get. I can't get another nickel."

On Thursday, July 14, 1977, Filimoniuk returned to defendant's office around 5 p.m. accompanied by undercover police officer Zulkowski. Prior to entering, an assistant state's attorney gave him the .25-caliber gun which defendant had previously given him. Filimoniuk carried the gun wrapped in a brown bag. Defendant refused to talk in the presence of Zulkowski, whom Filimoniuk introduced as his bodyguard. Filimoniuk threw the gun down saying, "Here's your gun" and defendant put it away. Defendant then gave Filimoniuk $200 and said, "Phil [Filimoniuk], I don't want to talk about nothing. Get this guy out of here."

Filimoniuk left defendant's office and returned a short time later. Officer Zulkowski waited outside. As he entered, defendant was on the phone saying, "If this guy acts up, take a picture of him as he comes outside." Filimoniuk then questioned defendant whether he was putting a hit out on him. Defendant hung up the phone, put a knife to Filimoniuk's face and ordered him to the floor. Filimoniuk's call for help was electronically overheard. As the police entered, defendant, still holding the knife, ran to the washroom in the back of his office. The tape which contained the recording from the electronic device attached to Filimoniuk was admitted into evidence without objection. By leave of court, defendant filed a supplemental record containing the court reporter's transcript of the tapes as to the conversation of July 11, 13 and 14, 1977, together with a stipulation of counsel that the transcriptions were true and accurate. The transcripts corroborate substantially Filimoniuk's testimony.

Officers Zulkowski and Srbeny both testified that as they entered they observed defendant holding a knife and standing in the doorway to a washroom in the back of the office. Defendant then went behind the door and closed it. After convincing him that they were police officers, he came out. Officer Srbeny then stepped into the area where he recovered the knife which was laying in an open position on a cot. Zulkowski testified that they did not recover the gun, that he saw defendant put the brown paper bag containing the gun in a desk drawer, and that defendant told Filimoniuk, "I didn't give you no gun."

Defendant was found guilty and sentenced to serve 4 to 15 years in the State penitentiary. At sentencing and at his hearing for an appeal bond, defendant asserted that he was almost 70 ...

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