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09/09/87 the People of the State of v. Stephen Shinkle

September 9, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

STEPHEN SHINKLE, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

513 N.E.2d 1072, 160 Ill. App. 3d 1043, 112 Ill. Dec. 463 1987.IL.1311

Appeal from the Circuit Court of Cook County; the Hon. L. Michael Getty, Judge, presiding.

APPELLATE Judges:

JUSTICE FREEMAN delivered the opinion of the court. RIZZI and WHITE, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE FREEMAN

Defendant Stephen Shinkle was convicted of one count of arson of personal property, one count of arson of real property (Ill. Rev. Stat. 1981, ch. 38, par. 20-1(a)), and one count of conspiracy (Ill. Rev. Stat. 1981, ch. 38, par. 8-2) to commit arson after a jury trial in the circuit court of Cook County. The trial court sentenced him to 48 months' probation, 1,600 hours of public service and a $5,000 fine, which it stayed for two years.

On appeal, he contends: (1) the admission of a police officer's testimony of a conversation between defendant and his coconspirator violated the Illinois Constitution and the Illinois eavesdropping statutes; (2) the trial court improperly allowed the police officer to bolster his testimony with a prior consistent statement prior to cross-examination; (3) the trial court violated his right to confront the witnesses against him when it prohibited him from cross-examining the State's main witness, his coconspirator, concerning his prior unlawful occupation; (4) the State denied him a fair trial when it elicited testimony concerning items which had been suppressed prior to trial.

The State presented two occurrence witnesses at trial. Diane Piagnorelli testified that at approximately 8 p.m. on June 9, 1983, she and her husband observed smoke coming from defendant's chiropractic office in Oak Park, Illinois, which occupied the first floor of a frame building. She also saw a man emerge from the building and "fiddle" with the doorknob. When her husband told him his house was on fire he responded, "[Better] call the police." The man then got in a parked car and drove away. Mrs. Piagnorelli wrote down his license plate number and later gave it to the police. Subsequently, she identified Larry Thompson as the man she saw leaving defendant's office on June 9.

Larry Thompson testified that he met defendant in 1981 when he visited him for back treatments and that he and defendant became good friends. Thompson claimed that in April 1983, defendant told him he was not making any money in his practice because of the expense of the new equipment which he had purchased and that if it were destroyed the insurance would pay for it. Thompson told defendant he knew someone who could destroy the equipment in defendant's office for $2,500, $1,000 up front and $1,500 when the job was completed, to which defendant agreed. Thompson went to defendant's apartment on April 23 and received from him the $1,000 down payment and two keys to get in and out of his office. The keys were for the front door and a padlock on metal bars across the door. Thompson told defendant he would contact him to get the $1,500 balance when the job was completed. He called defendant on the afternoon of June 9, at which time defendant told him he thought Thompson had taken the money and "split." Thompson told defendant that the person to whom he had given the money did just that. Defendant told Thompson that he had contacted someone else to "take care of it" since he had not heard from him. Thompson then told defendant that if he could cancel the other arrangement they could work something out for the $1,500 balance. Defendant told Thompson he would get back to him, called him at about 7 p.m., and told him that he had cancelled the other arrangement. Defendant also told Thompson that evening would be a good time to do it because the people who lived upstairs had gone out.

Thompson told defendant he would be right over and left his apartment with a plastic gasoline container which he filled at a gas station at the corner of Plainfield and First Avenues. Thompson put the gasoline container in a box and drove to defendant's office. When he arrived there he met defendant, who took him through the office and showed him what he wanted destroyed. Defendant told Thompson that he especially wanted his X-ray machine destroyed and suggested that they put some containers of the chemicals used to develop the X rays near the machine, which they did. Thompson then showed defendant how he was going to pour the gasoline on the items he wanted destroyed. Defendant told Thompson to wait 20 to 30 minutes after he left to allow him time to establish an alibi and gave him a phone number to reach him once the job was done in order to arrange payment. After defendant left, Thompson removed a camera, an answering machine, an adding machine and some paintings from the office and took them to his car. Upon his return, he put the front door key in the lock before pouring gasoline throughout the office. Thompson was interrupted when the tenants of the upstairs apartment briefly returned. After they left, Thompson lit the gasoline, which blew up around him. Thompson got out the front door and pushed it shut with his shoulder.

Upon returning to his apartment, Thompson called defendant and told him he had been seen and he thought they had gotten his license plate number. Defendant told him to get rid of the car and get out of the State. Thompson responded that before he did so defendant had to give him the money. They arranged to and did meet the next day at a bar called the Weinkeller and defendant gave Thompson $1,200, which Thompson gave to a friend, Simon Misura, who had accompanied him to the bar. Thompson was arrested on June 18.

Thompson next saw defendant on June 22 in the lobby of the Maybrook court building, where he was to have a preliminary hearing. They met in the restroom and defendant told Thompson that he wanted him to speak to his attorney, asked Thompson not to implicate him, and reassured him that everything would be all right. After their conversation, Thompson spoke to his attorney, who then spoke to someone in the State's Attorney's office. Eventually, Thompson spoke to some people from the office and Oak Park police detective Frank Michalek. He returned to the Oak Park police station with the detective and called defendant to set up a meeting. Detective Michalek listened to the conversation on an extension phone in the same office while holding his hand over the mouthpiece. As a result of the conversation, defendant agreed to meet Thompson the next day to give him the money he owed him. Thompson was indicted on two counts of arson and one count of conspiracy. The State promised him probation in exchange for his testimony against defendant.

Defendant first contends the trial court erred in failing to suppress Detective Michalek's testimony of the telephone conversation between him and Thompson while the detective listened on an extension phone with his hand over the mouthpiece. He asserts that the detective's conduct constituted eavesdropping in violation of the Illinois Constitution (Ill. Const. 1970, art. 1, sec. 6) and section 14-2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 14-2). Defendant contends the detective's actions constituted eavesdropping because, without use of the device employed, i.e., the extension phone, he would have heard only the words of one party to the conversation, not the entire conversation.

He argues that the method used in this case to convert an ordinary extension phone into an eavesdropping device was just as effective as that used in People v. Gervasi (1982), 89 Ill. 2d 522, 434 N.E.2d 1112, which held that extension telephones with the speaking element removed constituted illegal eavesdropping devices. Defendant cites the emphasis Gervasi placed on the functional alteration of a telephone as a factor in the determination whether the extension phone used in that case constituted an eavesdropping device. He distinguishes People v. Gaines (1981), 88 Ill. 2d 342, 430 N.E.2d 1046, cert. denied (1982), 456 U.S. 1001, 73 L. Ed. 2d 1295, 102 S. Ct. 2285, which held that an extension telephone was not an illegal eavesdropping device, on the ground that the police officer who used an extension telephone to overhear the defendant's conversation in that case did not alter the phone's transmitter in any way. He notes the supreme court's observation in Gaines that the eavesdropping statute "is directed against the use of devices other than the telephone itself when the latter has not been functionally altered." 88 Ill. 2d 342, 363, 430 N.E.2d 1046.

Defendant also urges us to look to the "totality of the circumstances surrounding the function of the device" to determine the issue. He argues that an arbitrary fixation on the kinds of devices used will thwart the purpose of privacy laws and exalt form over substance. Defendant urges that the test for "eavesdropping device" should be whether it is used in an obvious effort to dissemble or conceal and with the obvious desire to invade the privacy of communication, which is protected by the Illinois Constitution. He contends the use of the extension phone in this case satisfies that test. He argues that the method used to convert the telephone's function can be analyzed only in light of the purpose of that alteration. Defendant concludes that Detective Michalek's purpose was to eavesdrop and that he created a functional eavesdropping device for that purpose.

The State responds that eavesdropping does not occur where, as here, one of the parties to the conversation gives his consent, citing section 14 -- 2 of the statute. Moreover, it argues, neither a telephone nor an extension phone is an eavesdropping device under our case law, including Gaines. It asserts there is no difference between that case law and this case because the listener in each case could easily speak into the phone and transmit sound and the phones were not functionally altered. It argues it is inconceivable that the legislature could have intended that the simple act of covering the mouthpiece would convert a telephone into an eavesdropping device. The State distinguishes Gervasi on the grounds that therein a physical alteration of the extension phone rendered it incapable of transmitting sound, while here the detective merely placed his hand over the receiver and the phone was still capable of transmitting sound. The State asserts that an "intent" test is of no avail here since it concedes the detective's purpose was to overhear ...


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