Appeal from the Appellate Court for the Fourth District; heard
in that court on appeal from the Circuit Court of Sangamon
County, the Hon. Jerry S. Rhodes, Judge, presiding.
JUSTICE WARD DELIVERED THE OPINION OF THE COURT:
Rehearing denied June 2, 1986.
Following a jury trial in the circuit court of Sangamon County, the defendant, John Britz, Jr., was found guilty of the murder of Timothy Meisner. The appellate court reversed and remanded for a new trial (128 Ill. App.3d 29), and we granted the State's petition for leave to appeal under our Rule 315 (94 Ill.2d R. 315).
A detailed factual background of this case appears in the opinion of the appellate court, and it will be necessary to state only the facts related to the issues considered here.
The victim, Timothy Meisner, was found dead of a gunshot wound at a gasoline station in Springfield on June 9, 1979. The defendant at the time was 19 years of age, a high school drop-out with a fourth-grade reading level. He had a history of drug and alcohol abuse. On June 11, 1979, two days after the murder, the defendant contacted the Springfield Youth Services Bureau, which provides counseling. He spoke with several counselors during the day, and seemed to have found one counselor, Cheryl Penman, whom he had met on a prior occasion, most helpful. He phoned her later that day and told her that "somebody had been murdered and that he [the defendant] had done this." Penman informed the police of the conversation and at their request consented to have an eavesdropping device placed on one of the telephones at the Youth Services Bureau. A court order was obtained that authorized the use of the device from 5 p.m. on July 3, to 4:59 p.m. on July 13, 1979. The police and Penman agreed that whenever the defendant would phone the Bureau's answering service, she would return his call on the phone with the device attached. Detective Louise Lange-Kempf suggested conversational techniques for Penman's use in order to elicit pertinent information from the defendant.
Twelve conversations between the defendant and Penman were recorded, and throughout the conversations the defendant denied being involved in Meisner's murder. In the course of the conversations Penman repeatedly told the defendant that she was very concerned about him and advised him to confide in her. Penman appeared to abandon the role of counselor and adopt a very personal level of conversation. In these conversations she told the defendant that his involvement with the police "turns me on," and that the defendant was "a big man to me. A real man." This was obviously enticing to the defendant, and he told Penman that he loved her. Penman continually urged the defendant to go to the police and tell the truth about the murder.
The last recorded conversation took place on the evening of July 12, 1979. The defendant, apparently at Penman's suggestion, met her at the detective bureau that evening and gave false exculpatory statements to the police. The police challenged their truthfulness, and he acknowledged that they were false. The defendant later gave confessions to the murder of Meisner. The confessions were taken on July 14 and July 15, 1979, and on October 6, 1982. (The original complaint against the defendant was dismissed in 1979 but prosecution was reinstituted in 1982, apparently because of new evidence.)
The defendant contends that the trial court's conduct of the voir dire examination of jurors resulted in error under our holding in People v. Zehr (1984), 103 Ill.2d 472. Zehr was handed down subsequent to the trial in this case, but the defendant says that its holding should be applied retroactively. As we are affirming the appellate court's judgment providing for a new trial it is appropriate to examine the question. The defendant says that it was error for the trial court to deny the defendant's request to have these questions asked on the voir dire examination: (1) whether the jurors understood that the defendant was presumed to be innocent of the charge; (2) whether the jurors understood that the defendant need not produce any evidence; and (3) whether the jurors could return a verdict of not guilty if the prosecution failed to prove each and every element of the offense. In Zehr, we held it was error for the trial court not to have granted the defendant's request that three questions substantially the same as those submitted here be asked of prospective jurors. As stated, Zehr was decided after the trial here. Supreme Court Rule 234 at the time of trial provided:
"The court shall conduct the voir dire examination of prospective jurors by putting to them questions it thinks appropriate touching their qualifications to serve as jurors in the case on trial. The court may permit the parties to submit additional questions to it for further inquiry if it thinks they are appropriate, or may permit the parties to supplement the examination by such direct inquiry as the court deems proper. Questions shall not directly or indirectly concern matters of law or instructions." (87 Ill.2d R. 234.)
Rule 234 explicitly prohibited questions during the voir dire examination which "directly or indirectly concern[ed] matters of law or instructions." (87 Ill.2d R. 234.) As the holding in Zehr represented a change in Illinois law it is given prospective application. People v. Fife (1979), 76 Ill.2d 418, 425-26; People v. Prim (1972), 53 Ill.2d 62, 76; People v. Montgomery (1971), 47 Ill.2d 510, 519.
The State argues that the appellate court erred in holding that the tape-recorded conversations between the defendant and Penman should have been admitted in evidence. The State made an in limine motion to bar the tape evidence from being submitted to the jury. It argued that the defendant's repeated denials of his guilt constituted self-serving hearsay. The defendant responded that because he did not know the conversations were being recorded, the tapes were not inadmissible as self-serving. The trial court granted the State's motion, but the appellate court reversed. It held that the tapes should have been admitted for the purpose of showing the defendant's state of mind, which, it held, was relevant on the question of voluntariness of his subsequent confessions. The State contends here that the voluntariness of the confessions was for the trial court to decide and because the trial court found the confessions to be voluntary there was no question for the jury to consider, as the tapes were relevant only on the question of voluntariness.
It is indeed for the trial court to judge the voluntariness of a confession and, thus, its admissibility. (People v. Kincaid (1981), 87 Ill.2d 107, 119.) The issue of voluntariness of a confession, however, must be distinguished from the question of its truth or falsity. Once admitted in evidence, the jury decides the weight to be given a confession. (People v. DiGerlando (1964), 30 Ill.2d 544, 551; People v. DeSimone (1963), 27 Ill.2d 406, 409; People v. Stacey (1962), 25 Ill.2d 258, 269.) The content and circumstances of a confession are of course pertinent to the question of its truth and the weight to be given to it. The recorded conversations were pertinent. The defendant's confessions of July 14 and 15, 1979, were taken within a few days of his conversations with Penman. It is clear that the defendant was attracted to Penman, and considering their conversations he, in a twisted way, might have thought Penman would be impressed by the confessions. The jury should have been allowed to hear how Penman appealed to a naive and distorted sense of masculinity in attempting to have the defendant implicate himself in the crime. These appeals of Penman were relevant to the truth or falsity of the confessions, especially in light of the defendant's credulousness. Even if the jury did hear some testimony that Penman had attempted to exert influence over the defendant, the testimony could not substitute for the effect of hearing the tapes.
The State argues that the tapes do not satisfy the "state of mind" exception to the hearsay rule. That exception concerns the admission of language of a declarant that tends to show his state of mind at the time of the utterance. (See People v. Goodman (1979), 77 Ill. App.3d 569, 574; Cleary & Graham, Illinois Evidence sec. 803.4 (4th ed. 1984); McCormick, Evidence sec. 249, at 590 (2d ed. 1972).) But hearsay is not involved here, as the stimulating language of Penman is admissible not for its truth, but for its effect on the listener (defendant). (See McCormick, Evidence sec. 249, at 589-90 (2d ed. 1972); Cleary & Graham, Illinois Evidence ...