Appeal from the Circuit Court of Pike County; the Hon. Edward
B. Dittmeyer, Judge, presiding.
PRESIDING JUSTICE WEBBER DELIVERED THE OPINION OF THE COURT:
Defendant was convicted by a jury in the circuit court of Pike County of the offense of solicitation (murder) in violation of section 8-1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 8-1). He was sentenced to six years' imprisonment.
On appeal three issues are raised: (1) error by the trial court in refusing to suppress evidence gained by use of an eavesdropping device, (2) improper jury instructions, and (3) error by the trial court in refusing to grant a new trial based upon newly discovered evidence. While the guilt of the defendant appears plainly evident, we find that he was deprived of a fair trial through the use of improperly obtained eavesdropping evidence and that a new trial is mandated. In view of this holding, the other issues become moot.
The chain of events leading to the filing of the information charging the offense began with the filing of a petition for authorization of the use of an eavesdropping device on May 26, 1982. The petition was executed by Alfred Benton, a special agent of the Illinois Department of Law Enforcement. In pertinent part it alleged:
"(a) The offense of Solicitation/Murder, is about to be committed in that Walter H. Wassell has on two occasions between May 9, 1982 and May 18, 1982 contacted a confidential source of police officials and inquired if C/S could arrange to have Lucy Wassell, wife of Walter, killed in such a manner so as to appear it was a Burglary of the Wassell residence, some time immediately following June 1, 1982.
(b) That on May 18, 1982 Walter Wassell agreed to meet with an individual for the purpose to discuss the details of said killing.
That on May 25, 1982 and May 26, 1982 Walter Wassell agreed further to meet an individual on May 26, 1982, at 8 pm, at Colonial Motel, E. Hannibal, Il in East Hannibal, Ill. [sic] for the express purpose of discussing and arranging for the death of Lucy Wassell."
Filed with the petition was a consent signed by Arthur Avart, another special agent of the Illinois Department of Law Enforcement, and a consent of the State's Attorney of Pike County. Based upon these documents, and without any further evidence, a judge of the circuit court of Pike County signed an order authorizing the eavesdropping on May 26, 1982, between the hours of 7 and 10 p.m.
A report was made on May 28, 1982, stating that no conversations were overheard because the defendant failed to appear at the scheduled meeting. A second application was filed on June 1, 1982, and was labeled "Request for Extension." It was executed by Benton and accompanied by consents from Avart and the State's Attorney.
The pertinent passages from it allege:
"The felony of Solicitation/Murder has been is, or is about to be committed, such belief being based on the following facts: (see initial application) Walter Wassell has contacted Informant about setting up death of his wife Lucy and that as soon as May 31, 1982, Walter Wassell has confirmed his desire to have his wife killed and requested Informant to have person who would do it contact him per clause 7(c) of this petition."
Clause 7(c) of the application alleges in pertinent part:
"On May 31, 1982 Walter Wassell did contact confidential source and requested telephone call from agent at Cardinal Inn, Pittsfield, Illinois on or after June 1, 1982 at 6:30 am regarding arranged death of his wife."
The same circuit judge, based upon the request for extension and the accompanying consents, and without further evidence, signed an order authorizing eavesdropping from June 2, ...