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People v. Wrestler

OPINION FILED JANUARY 6, 1984.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

LELAND WRESTLER, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Fulton County; the Hon. Francis Murphy, Judge, presiding.

JUSTICE BARRY DELIVERED THE OPINION OF THE COURT:

Defendant, Leland Wrestler, was charged with three counts of indecent liberties with a child (Ill. Rev. Stat. 1981, ch. 38, par. 11-4(a)) and tried by a jury in the Fulton County circuit court. He was found guilty on all three counts and was sentenced to serve concurrent terms of four, eight and 12 years imprisonment for the three offenses. In this appeal, the defendant raises two primary issues: (1) whether the trial court erred in denying the defendant's motion to suppress three tape-recorded telephone conversations and one face-to-face conversation between the defendant and the child victim; and (2) whether the defendant's concurrent terms of imprisonment are excessive given the testimony adduced on defendant's behalf at his sentencing hearing. We affirm.

The facts underlying the defendant's three convictions of indecent liberties with a child are not, for the most part, in dispute. They need not be related except as necessary to explain our determination of the issues. Out of deference to the minor victim, her name will not appear in this opinion. She will be referred to, instead, as "the child."

On January 27 and 28, 1982, the child and her mother met with Sergeant Daniel P. Daly of the Fulton County Sheriff's Department and then assistant State's Attorney of Fulton County, Joan C. Scott. The child provided detailed accounts of three of the occasions of sexual intercourse between herself and the defendant, who was age 59 at the time of his trial. The first instance of intercourse had occurred during early summer of 1979, when the child was 10 years old; the second, on the occasion of the celebration of her 11th birthday in March 1980; and the third, in the latter part of December 1981, when she was 12 years old. The child estimated that she had had intercourse with the defendant from 20 to 25 times between the summer of 1979 and December of 1981.

Based upon the information related during these meetings, Sergeant Daly prepared an application for an eavesdropping order. The three-page application summarized the child's detailed accounts of the three acts of intercourse, including the fact that the defendant had applied contraceptive cream to the child's vagina prior to intercourse on the last two occasions described. Daly expressed his opinion that a telephone call by the child to the defendant "could result in discussion and admissions by [the defendant] of his participation in indecent liberties with a child" which would constitute evidence of the crime. Accordingly, Daly requested "that an order for the use of an eavesdropping device be used [sic] to record any and all phone conversations with [the defendant] from January 29, 1982 at 2:00 p.m. until February 9, 1982 at 2:00 p.m. between * * * [the child] and [the defendant]."

At 2:35 p.m. on January 29, 1982, Judge Wilhelm entered an order for use of an eavesdropping device, finding that "reasonable grounds * * * to believe that the felony of indecent liberties with a child * * * [had] been committed by [the defendant], and * * * that there [was] reasonable cause to believe that the particular conversations specified in the application" would occur during the period specified, and that the child and her mother consented to the recording and/or overhearing of such conversations. The order granted authority to Daniel P. Daly. Finally, the order specified that it was "to terminate as soon as said conversations are recorded."

Pursuant to the eavesdropping order, telephone conversations were recorded in the evening of January 29 and again on January 31, 1982. In the first conversation, the child told the defendant that she had missed her period and she thought that she might have become pregnant as a result of sexual relations they had had in December. She asked him if he thought the contraceptive cream had been effective. He said he was sure it had been. He was "very, very" concerned about her, but indicated that he could not speak freely because of the presence of other persons in the room where he was speaking.

During the second conversation, the child said she still thought she was pregnant and was scared. The defendant offered to meet her to talk the next day, but again said that he was not free to speak over the telephone. He indicated that "Mom" was in the room. The child asked how old the cream was that he had used. He said it was not old.

On February 1, 1982, Deputy Curtis Pierce of the Fulton County Sheriff's Department filed a supplemental application for use of an eavesdropping device in which he summarized the recorded telephone conversations and concluded that the defendant was inhibited about discussing sexual matters with the child when he was in the presence of other persons. Pierce requested that the prior order remain in effect and that a supplemental order be issued authorizing the use of an eavesdropping device to record face-to-face conversations between the child and the defendant during the remainder of the period for which the prior order was in effect. An order granting the supplemental application was approved by Judge Wilhelm at 1:15 p.m. on February 1, 1982. That order specifically provided that it was to terminate as soon as the particular face-to-face conversations were recorded.

Then, around 2:30 p.m. of February 1, 1982, a third telephone call was placed by the child to the defendant and recorded. She told him she was home alone until 6 p.m. The defendant stated that he would stop by to talk to her and that "the things she was worrying about" were "all taken care of." An hour later the defendant appeared at the child's home and their conversation was there recorded.

The defendant produced an early pregnancy test kit and explained to the child that she was to secretly collect a sample of her urine the next morning and tell her mother that she was sick so that she would not have to go to school. Then, when everyone in the household had left, the defendant would come by her home and conduct the pregnancy test. The defendant further explained that if the results indicated pregnancy he was going to take her to an abortion clinic in Peoria and return her to her home, non-pregnant, by the time the school bus reached her house after school. The defendant acknowledged that he knew he was the only person who had ever "bothered" her. He told the child that her mother would put her in a "home" if she told her mother about the pregnancy; that rather than go to prison, the defendant would take his own life if she told her mother she was pregnant by him; that as far as the defendant was concerned, the child "belonged" to him, not to her mother; and that they would never again have sex together. The defendant then said that he was going to change his own and his wife's wills to provide for her.

As the defendant left, he was met by Deputy Pierce, who had overheard the face-to-face conversation from the adjoining apartment. Pierce arrested the defendant and removed the pregnancy test kit from his person.

Prior to trial the defendant moved to suppress all of the recorded conversations on grounds that they were illegally obtained. The motion was denied, as was a subsequent motion in limine advanced on the same grounds. The recordings were played to the jury during the State's case-in-chief over defendant's objection.

In his appeal, the defendant contends that the admission into evidence of the tape recorded conversations was error for several reasons. Initially, defendant asserts that Judge Wilhelm's first order illegally authorized the use of an eavesdropping device for 11 days, one day in excess of the statutory maximum. (See Ill. Rev. Stat. 1981, ch. 38, pars. 108A-5(b), 108A-9(a)(2).) While the defendant's point is well taken, ...


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