Appeal from the Circuit Court of Lee County; the Hon. James E.
Bales, Judge, presiding.
JUSTICE HOPF DELIVERED THE OPINION OF THE COURT:
Rehearing denied September 12, 1985.
Defendant appeals from his conviction of murder (Ill. Rev. Stat. 1981, ch. 38, par. 9-1(a)(1)) following a jury trial in the circuit court of Lee County. He was sentenced to a term of 40 years' imprisonment. On appeal, defendant contends that: (1) the trial court erred in denying his motion for substitution of judges; (2) defendant's substantial compliance with the terms of a previous plea agreement precluded his prosecution for murder; (3) defendant was denied the effective assistance of counsel at the time the agreement was reached; (4) the use at trial of defendant's prior testimony in the trial of his co-conspirator and certain of defendant's statements to the prosecutor were violative of Supreme Court Rule 402(f) and principles of due process and voluntariness; (5) defendant is entitled to a reduction in his sentence based on his performance of the prior plea agreement; and, (6) the court improperly considered the manner in which the victim's body was disposed of as an aggravating factor.
On June 6, 1983, defendant was charged by information with one count of murder (Ill. Rev. Stat. 1981, ch. 38, par. 9-1(a)(1)) and one count of conspiracy (murder) (Ill. Rev. Stat. 1981, ch. 38, par. 8-2(a)). The charges arose from defendant's involvement in the strangulation death of Stuart Kelly Young on October 16, 1981. On June 24, 1983, defendant moved for a substitution of judges, which was denied.
Prior to trial, defendant moved to suppress all oral and written statements, admissions, and testimony, either exculpatory or inculpatory, which were alleged to have been made prior to, at the time of, or subsequent to defendant's arrest on March 25, 1983. The motion alleged, specifically, that on November 9, 1981, and on subsequent dates thereto, defendant was interrogated by law enforcement officials from Lee and Ogle counties, that on that date defendant requested that an attorney confer with him, and that attorney David T. Fritts was contacted and discussed various matters concerning the death of Stuart Kelly Young. The motion also alleged that following these discussions attorney Fritts entered into negotiations with the State's Attorneys of Lee and Ogle counties, and that prior to any statements being made by defendant a negotiated agreement was entered into between defendant and the State's Attorneys. The motion further alleged that any statements, admissions, and testimony which followed the making of said agreement should be suppressed as being obtained as a result of promises of leniency and/or immunity to the defendant which were not fulfilled and were therefore involuntary. A motion to dismiss was also filed on the basis that defendant had received immunity from prosecution for the offense charged.
According to the terms of the negotiated agreement, defendant "agreed to give a full and complete statement as to his knowledge of the murder of Stuart Kelly Young" to the authorities. State's Attorney Schumacher testified at a motion to dismiss hearing that he had stressed to Fritts that the agreement would no longer be valid if Saunders kept information from the police. Defendant also agreed to testify in conformance with his statement to the police against any defendant who was arrested as a result of his statement. Additionally, defendant agreed to undergo a polygraph examination, which he did and passed. In exchange for defendant's cooperation, the Lee and Ogle County State's Attorneys' offices agreed to charge defendant with the offense of concealing a homicide in a county of proper venue "if [defendant] could not be charged as a principal in the murder" based upon defendant's statement and the polygraph examination. Further, the State's Attorneys agreed to recommend that defendant be sentenced to probation "if he did not physically contribute to the death of Stuart Kelly Young." However, if defendant did physically contribute to such death, "but said contribution did not rise to the level of a principal in the offense," it would be recommended that defendant be sentenced to two years in the Department of Corrections. Finally, the State's Attorneys agreed that defendant would "either be released on a recognizance bond on a charge of Concealing a Homicide or would be charged at a later date."
Defendant's motion to dismiss alleged that pursuant to the advice of counsel, defendant "complied in all respects with the agreement" by giving "several full and complete statements" as to his knowledge of the murder, by giving police officials various leads which developed later evidence, by taking the polygraph, by testifying on February 12, 1983, against Charles Danek, defendant's co-conspirator in the murder, and by speaking with the investigators of both counties concerning additional clarification which they required. Finally, defendant alleged that because he complied in all respects with the foregoing agreement, he was immune from prosecution on the present charges of murder and conspiracy (murder). The State responded to defendant's motion to dismiss by admitting the existence of the agreement and the substance of its terms, but denying that defendant gave a full and complete statement prior to the trial of Danek. The State argued that defendant therefore did not comply in all respects with the agreement.
At the hearing on defendant's motion to dismiss, defense attorney David Fritts testified that prior to any negotiations, he advised defendant of his Miranda rights. Following the completion of the negotiations, Fritts advised defendant to "[t]ell them exactly what he told me, not to leave anything out, to be complete and honest and open * * *." Counsel advised defendant that the most he would be getting was two years in prison; other than this, defendant did not know the specifics of the agreement.
At the hearing, Fritts also testified that at Danek's trial in February 1982, Fritts discovered that defendant had not disclosed all the information either to the authorities or to Fritts: namely, that defendant had placed a syringe of air into the victim's arm. After trial, Fritts discovered that defendant and Danek had been in a car accident together on the Peoria Avenue Bridge. Additionally, in January 1983 it was discovered that certain evidence had been thrown off the Grand Detour Bridge, and that other evidence had been discarded on the Rock Island blacktop. Dixon police officer Larry Hagen stated that a witness to the accident was discovered who might have provided corroborative testimony at Danek's trial. Danek was ultimately acquitted of the charges against him.
At the hearing on the motion to dismiss, the prosecutor argued that defendant's use of the syringe made him a principal in the crime. It was further argued that defendant violated the terms of the agreement by failing to disclose all information prior to Danek's trial. Defendant's motion to dismiss was denied.
At the hearing on the motion to suppress, the prosecutor originally agreed that defendant's statements made prior to July 12, 1982, were plea-related and therefore inadmissible under Rule 402(f) (87 Ill.2d R. 402(f)). Defendant's motion to suppress was therefore granted. The stipulation covered Saunders' testimony at Danek's trial and a January 31, 1982, telephone conversation between defendant and State's Attorney Stockton. Later, the prosecutor was allowed to withdraw his stipulation that the testimony was inadmissible. Following a subsequent hearing on defendant's motion to suppress, the motion was denied as to both the telephone conversation and defendant's prior testimony at Danek's trial.
The cause then proceeded to trial. The underlying facts surrounding the offense at bar are not relevant to the issues raised by defendant on appeal, and will therefore be discussed only briefly here. According to Saunders' testimony at Danek's trial, defendant and Charles Danek conspired to murder Stuart Kelly Young, apparently because Young was blackmailing Danek. Around October 16, 1981, Danek and Saunders were on their way back to Saunders' apartment when they saw Young. The three men went to Saunders' apartment and began to play cards. Danek left the game to go to the bathroom and returned with an 8-inch long piece of rope, which he slipped around Young's neck. Saunders watched as Danek strangled Young. Then defendant got up to keep Young's chair from falling over and making noise. Saunders also "batted" Young's hands away from the rope. After Young was dead, the defendant used a syringe to inject air into Young's arm.
After hearing the evidence and arguments of counsel, the jury found defendant guilty of the offense of murder. Following the denial of defendant's motion for a new trial and the sentencing of defendant, a timely notice of appeal was filed.
Defendant first contends that the lower court erred when it denied his motion for substitution of judges on the ground that it was not timely filed and that it named too many judges.
• 1 Initially, we note that the instant argument was not included in defendant's post-trial motion for a new trial. An error not raised in the post-trial motion is waived, even when the issue was raised in the trial court and the defendant's objection was overruled. (People v. Winston (1982), 106 Ill. App.3d 673, 686, 435 N.E.2d 1327.) When a claim of error has not been so preserved it may only be considered by a reviewing court under the plain error doctrine set forth in Supreme Court Rule 615(a) (87 Ill.2d R. 615(a)). The doctrine of plain error may be invoked where the evidence is closely balanced or where the error was of such a magnitude that the accused was denied a fair trial. (106 Ill. App.3d 673, 686, 435 N.E.2d 1327.) After reviewing the merits of defendant's argument we decline to invoke the plain error rule here.
Defendant's motion to substitute judges stated that it was being filed pursuant to section 114-5(a) of the Code of Criminal Procedure (Ill. Rev. Stat. 1983, ch. ...