APPELLATE COURT OF ILLINOIS, SECOND DISTRICT
506 N.E.2d 409, 154 Ill. App. 3d 197, 106 Ill. Dec. 702 1987.IL.415
Appeal from the Circuit Court of Ogle County; the Hon. Alan W. Cargerman, Judge, presiding.
JUSTICE INGLIS delivered the opinion of the court. HOPF and UNVERZAGT, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE INGLIS
Defendant, Thomas Clankie, was charged by three separate indictments with three counts of residential burglary in that he, knowingly and without authority, entered the dwelling place of another with the intent to commit therein a theft in violation of section 19-3 of the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, par. 19-3). Jury verdicts were returned finding him guilty as to counts I and III, not guilty as to count II. Defendant's motion for a new trial was granted, and the cause was set for retrial. On April 8, 1985, a fourth count of residential burglary was filed by information. A guilty verdict was returned by the jury on count IV, and defendant was found not guilty on the previously charged counts. Judgment was entered on the verdict, and an eight-year term of imprisonment was imposed.
Defendant raises three issues on appeal: (1) whether defendant's sixth amendment right to counsel was violated by the presentation to the jury of a wiretap tape which was made by the State between defendant's first and second trials; (2) whether defendant was deprived of a fair trial by the trial court's denial of impeachment evidence of a telephone conversation between a State's key witness and an assistant State's Attorney taped by a third party; and (3) whether the defendant's sentence constituted an abuse of discretion by the trial court.
This appeal arose from alleged burglaries committed by defendant and Frank Boeck. Boeck was staying in defendant's home with his girlfriend Debra Schreck and their son, Dustin. Boeck sometimes assisted defendant on his paper route. The J. F. McNeal residence was on defendant's route. Both defendant and Boeck were aware that the home was unoccupied. The owner had cancer and was staying in Mt. Morris to receive care for his illness.
A grand jury indicted defendant on October 23, 1984, alleging defendant committed three residential burglaries against J. F. McNeal's house on June 11 (count I), June 13 (count II), and June 14, 1984 (count III). The cause proceeded to a jury trial, and on November 9, 1984, defendant was found guilty on two counts and not guilty on the June 13 charge.
Defendant retained a new attorney, who filed a motion for a new trial on December 6, 1984, alleging, among other things, a conflict of interest between defendant and his former counsel, George Enstrom. Defendant's motion was granted.
On March 7 and March 18, 1985, before the new trial on counts I and III, a court-ordered wiretap surveillance was conducted in defendant's home. Debra Schreck, a defense witness at the first trial, agreed to wear a recording device during conversations with defendant. Previously, she had approached the police and told them she wanted to tell the truth about the first trial, and she had agreed to assist them in a continuing investigation. Defendant revealed on the tapes, among other things, that he burglarized J. F. McNeal's house on June 27, 1984. Thereafter, count IV was added by information, charging defendant with residential
A pretrial motion to suppress the wiretap recordings was made asserting the surveillance violated defendant's sixth amendment right to counsel. Defendant alleged that the June 27 charge, referred to as count IV, was directly related to the previously indicted charges and therefore "suffers from the same constitutional infirmity." The court granted the motion as to counts I and III and ultimately denied the motion as to count IV. The wiretap tapes of conversations between Debra Schreck and defendant were presented to the jury in its entirety at the end of the State's case in chief.
On August 1, 1984, Boeck called the Ogle County State's Attorney's office from defendant's home. Debra Schreck had purchased a phone with a recording device attached to it. At that time she was living in defendant's home, and Boeck had moved out. She testified that she bought the phone because Boeck had been making harassing phone calls to her and she wanted proof of the calls for any action against Boeck. The call related to defendant's alleged claim that Boeck had committed perjury at the first trial and that defendant did not have any part in the burglaries.
Defendant attempted to admit the tape of Boeck's call to impeach Boeck's credibility at the second trial because Boeck had testified that he and defendant burglarized the McNeal home, but could not remember the taped phone conversation. The trial court denied defendant's motion, citing section 14-5 of the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, par. 14-5), which prohibits the admission of illegally obtained eavesdrop tapes in any proceeding.
Other evidence admitted at the trial will be discussed in more detail as it is relevant to the Disposition of this appeal.
The jury returned a guilty verdict as to count IV, the June 27 charge, and not guilty verdicts as to counts I and III. Defendant's motions for judgment notwithstanding the verdict and for a new trial were denied on October 15, 1985. The court sentenced defendant to an eight-year term of incarceration.
Defendant contends that his right to counsel was violated when the State wiretapped certain conversations between his first and second trials under Massiah v. United States (1964), 377 U.S. 201, 12 L. Ed. 2d 246, 84 S. Ct. 1199, and Maine v. Moulton (1985), 474 U.S. 159, 88 L. Ed. 2d 481, 106 S. Ct. 477.
In Massiah, the defendant was indicted for violating a Federal narcotics law. He retained counsel, pleaded not guilty, and was released on bail. While free on bail, a Federal agent surreptitiously listened to incriminating statements made by the defendant. Evidence of these statements was introduced against defendant at his trial. The Supreme Court held that once an indictment has been brought against a defendant, the right to counsel attaches and, therefore, statements obtained from the defendant without the benefit of counsel are inadmissible at the defendant's trial on those charges. Massiah v. United States (1964), 377 U.S. 201, 206-07, 12 L. Ed. 2d 246, 250-51, 84 S. Ct. 1199, 1203.
The right to counsel which attaches when formal proceedings are brought under Massiah was more definitively explored by the Supreme Court in Maine v. Moulton (1985), 474 U.S. 159, 88 L. Ed. 2d 481, 106 S. Ct. 477. In that case, an indictment was brought charging the defendant and Colson, a codefendant, with four counts of theft by receiving automotive vehicles and parts. Colson met with the police and confessed to participating in the crime and agreed to testify against the defendant and cooperate with the prosecution of the defendant on the pending charge if no further charges were brought against Colson. He also consented to having a recording device placed on his telephone to record any calls from the defendant. Having heard that Colson and the defendant were going to meet to plan the defense strategy for their upcoming trial, police placed a wire transmitter on Colson. Defendant made incriminating statements to Colson at this meeting. After Colson's role as informant was revealed, the State had the pending indictments dismissed and obtained seven new indictments against defendant; the original charges were realleged, and burglary, arson, and three more theft charges were added. The cause proceeded to trial on three of the seven indictments, at which defendant was found ...