Appeal from the Circuit Court of Du Page County; the Hon. Carl
F. Henninger, Judge, presiding.
JUSTICE SCHNAKE DELIVERED THE OPINION OF THE COURT:
The defendant, Joseph Vella, was charged by indictment with committing a burglary (Ill. Rev. Stat. 1983, ch. 38, par. 19-1) of a Golden Bear restaurant in Addison and theft (Ill. Rev. Stat. 1983, ch. 38, par. 16-1(a)(1)) of more than $300 from the restaurant safe on the night of October 31, 1982, and in the early morning hours of the next day. Following a bench trial, he was found guilty as charged. The defendant was subsequently sentenced to two concurrent 36-month terms of probation, each conditioned on his serving concurrent six-month terms of periodic imprisonment (work release). He was also fined $1,000 on the burglary conviction. The defendant appeals, contending (1) that his pretrial motion to suppress statements was erroneously denied; (2) that he was not proved guilty beyond a reasonable doubt; (3) that the trial court improperly restricted his cross-examination of one of the witnesses for the State; and (4) that the trial court improperly admitted certain evidence regarding "the conduct of a third party * * * as evidence of the [d]efendant's guilt."
Prior to the indictment and arrest of the defendant on May 4, 1983, the police investigating the burglary of the Golden Bear restaurant persuaded one of the defendant's friends, Diane Mason, to engage him in conversations about the offense, and to permit the police to tape-record those conversations. These conversations were the subject of the defendant's written pretrial motion to suppress statements. That motion had both a constitutional and statutory basis. The defendant maintained that his constitutional rights were violated because, at the time the police recruited Mason to elicit statements from him, they had already been informed that the defendant had retained counsel to represent him in connection with the investigation of the burglary, and that he did not wish to give the police any statements. The defendant's statutory argument was that the statements were inadmissible under section 108A-4 of the Code of Criminal Procedure of 1963, as amended (Ill. Rev. Stat. 1983, ch. 38, par. 108A-4), because Mason's consent to the use of the tape recorders was invalid, having been coerced by the police.
Evidence at the hearing on the motion to suppress revealed that on December 31, 1982, the defendant, who was then a suspect, retained attorney Robert Anderson to represent him in connection with the investigation of the burglary. Anderson advised him not to speak with the police. About a week later, Anderson told Detective Thomas Gorniak of the Addison police department that the defendant did not wish to make any statements to the police.
On January 25, 1983, Gorniak went to Mason's place of employment, a Martin Oil gas station, and asked her if she knew whether the defendant was involved in the burglary. She replied that she did not know whether he had done anything.
Gorniak subsequently telephoned Mason and asked her to come to the police station so that he could ask her some more questions. Mason agreed to do so and went to the police station on February 3, 1983. Gorniak again asked her if she knew anything about the offense, and Mason replied that she still did not. At the hearing on the motion to suppress, Mason was asked, "Did [Gorniak] make any statements to you about what would happen to you if you would not speak with him?" She replied, "Oh, well, he says, you know, if I don't tell the truth, that I would be in contempt of court; that I would have to go before a jury and try and prove I wasn't lying to him, that I didn't know anything." Gorniak then asked Mason if she would take a voice stress test, and she said she would.
The test was administered by Detective Donald Imbordino and lasted about 25 minutes. After the test was completed, Gorniak informed Mason that she had failed. Mason testified that Gorniak told her that if she would not tell him what she knew, he would cause a subpoena to be issued for her to appear before the grand jury. She said that Gorniak told her "that it would be crazy for me to sit here and still lie because he had a subpoena all waiting. And I would have to go before a grand jury and try to prove if I wasn't lying. And if I was, then I'd have to go to jail for a year." Mason testified that, based on Gorniak's threats that she could go to jail for lying, she then told Gorniak what the defendant had related to her about his involvement in the burglary and continued to cooperate with the police. Mason testified that she was upset and crying during her conversation with Gorniak.
On the other hand, Mason also testified that Gorniak did not threaten her with jail if she refused to consent to the tape-recording of her future conversations with the defendant. The threats of jail were directed at her lying. Mason's testimony in this regard was impeached with a prior written statement she had made that "[t]he only reason [she] agreed [to the use of the eavesdropping device] was because [she] was threatened to go to jail." Mason testified that the prior written statement was incorrect, and that an investigator for the defense had essentially dictated that statement for her to write and sign after the two had a conversation about the case. Mason also stated that she was at work during her meeting with the investigator and that the gas station was very busy. She said that she did not read the statement after she wrote it, although the statement itself says that she did.
In any event, on February 3, 1983, after her conversation with Gorniak, Mason signed a written consent to the use of an eavesdropping device. On the same date, she called the defendant's home on a telephone to which an eavesdropping device had been attached, but the defendant was not home, and she spoke with his roommate, Claudio Baraglia.
Three weeks later on February 23, 1983, Mason signed a second consent to the use of an eavesdropping device. Mason testified that at that time she was no longer concerned that she might go to jail if she did not continue to cooperate with the police. Later that evening she met the defendant and Baraglia at the Addison House restaurant. Pursuant to instructions from the police, Mason tried to elicit incriminating statements from the defendant regarding the burglary. The conversation was recorded on a tape recorder the police provided which was concealed in Mason's purse.
On February 25, 1983, she signed another consent to the use of an eavesdropping device. The police attached the device to the telephone at the gas station where Mason was working, and, when the defendant called her there, the police recorded the conversation. Based on the evidence recounted above, the trial court denied the defendant's motion to suppress.
At the ensuing bench trial Mason testified for the State. She said that sometime in November of 1982 the defendant told her that he committed the burglary and theft. According to Mason, the defendant told her that he was at the Golden Bear restaurant on Halloween night. Just prior to closing time he went into the bathroom and climbed up above the ceiling. He remained there until the restaurant was closed, and everyone was gone. He then crawled along the rafters from the bathroom to a point above the office area and then dropped down into the office and opened the safe. The defendant then took the money and left through "the emergency exit." Baraglia was outside waiting for him with a car, and the two men left. Mason testified that the defendant told her that one of the waitresses gave him the combination to the safe. The defendant then asked her to give him an alibi to the effect that she had met him at the Golden Bear, and that from there they went to a movie, and then to a different Golden Bear restaurant for coffee. Mason agreed to provide the alibi, although she had not really been with the defendant that night. According to Mason, the defendant also asked her to hold the money for him because he was afraid the police would search his home. Mason agreed to do so, and the defendant gave her a small package about the size of a dollar bill. Mason testified that she hid the package in a closet in her apartment, and that about a week later the defendant came to her apartment and retrieved it.
Mason also testified about her conversation with the defendant and Baraglia at the Addison House restaurant. She said the defendant told her not to worry, that the police could not prove anything, and that Mason would not go to jail. Mason stated that she subsequently listened to the tape recording of that conversation, but that she could not really make out any of the speech because the background music at the restaurant had been too loud.
She also testified about her telephone conversation with the defendant on February 25, 1983. The tape recording of that conversation was played in open court. In that conversation Mason told the defendant that she was afraid she would be subpoenaed to appear before the grand jury. The defendant told her to stick with the story that on the night in question they went to a movie, and then to a Denny's restaurant. The defendant told her that the police could not prove he committed the burglary, and that they were trying to scare her and his other friends into saying that he confessed to them. The defendant said:
"I mean here, I go and call Jackie and all of a sudden they [the police] are taking her down for questioning because I talked to her. And all of a sudden I call again and I find out that they called her a second time they want her to come down [to the police station] again. And the same with Carol. They are taking a shot at you, Carol and Jackie. And the only difference is you know and they don't. That's ...