APPELLATE COURT OF ILLINOIS, SECOND DISTRICT
530 N.E.2d 511, 176 Ill. App. 3d 203, 125 Ill. Dec. 353 1988.IL.1360
Appeal from the Circuit Court of Ogle County; the Hon. Alan W. Cargerman, Judge, presiding.
JUSTICE DUNN delivered the opinion of the court. LINDBERG, P.J., and INGLIS, J. concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE DUNN
Defendant, Christopher Lamb, appeals from his conviction for residential burglary following a jury trial held in absentia and the 15-year term of imprisonment imposed by the trial court. On appeal, defendant raises three issues for our review: (1) whether the court erred in admitting at trial a portion of defendant's grand jury testimony addressing a subsequently suppressed confession; (2) whether the court erred in refusing a defense instruction relating to the defendant's absence from trial; and (3) whether evidence pertaining to an unrelated charge upon which defendant was acquitted was improperly admitted at the sentencing hearing. Because we agree with defendant's first contention, we reverse and remand for a new trial. The remaining two issues need not be considered.
Defendant was charged by indictment with residential burglary. (Ill. Rev. Stat. 1987, ch. 38, par. 19-3.) Prior to trial, defendant filed a motion to suppress a confession obtained by Officer Wilkinson on July 11, 1984, four days after defendant's arrest. No hearing on the motion was conducted prior to the commencement of trial. After defendant failed to appear at numerous pretrial hearings, the court granted the State's motion to try defendant in absentia. The cause proceeded to a jury trial.
At trial, Vicki Pearson testified her home was burglarized on May 23, 1984, and several pieces of jewelry were among the items taken. Pearson identified as hers four rings that were obtained from defendant during a search of his person following his arrest on June 7. Officer Wilkinson initially talked with defendant on June 8 after he was informed defendant wished to speak with him. Defendant denied involvement in the burglary but stated he could assist Wilkinson in locating the missing property. Two days later, Wilkinson, after a conversation with defendant's girlfriend, contacted defendant by telephone and told him he would talk with him the following morning. At this juncture of Wilkinson's testimony, defense counsel interjected the undecided motion to suppress. Over the State's objection the motion was untimely, the court permitted a hearing.
At the hearing, Wilkinson testified he contacted defendant because defendant indicated he wished to talk to Wilkinson about the incident. After a brief conversation, defendant agreed to permit the recording of his statement to Wilkinson. The following day, defendant verified a transcript of the tape. The tape and transcript were reviewed by the trial court. The assistant State's Attorney argued the tape recording was critical to the court's decision. Indeed it was because the court concluded a statement by defendant that he wanted his bond lowered so he could get out of jail and Wilkinson's response that he would not oppose a bond reduction was sufficient to render the confession involuntary. The court therefore suppressed the oral and written statements of July 11 and 12.
The court next discussed the State's options to either file an interlocutory appeal or written notice that it would not appeal the suppression ruling. (Ill. Rev. Stat. 1987, ch. 38. par. 114-11(g).) During the discourse on this matter, the State inquired about the admissibility of the defendant's testimony before the grand jury. The court determined the grand jury testimony was admissible because it was given 17 days after defendant's statements to Wilkinson, defendant was represented by counsel, he had been released from jail, and he was not in a custodial situation. The court concluded defendant's testimony before the grand jury was voluntarily given after proper admonition.
Following Discussion of an unrelated matter, the State notified the court it was preparing a written statement indicating it was waiving its right to appeal and wished to proceed with the trial. The court accepted the written waiver and Wilkinson's testimony before the jury resumed.
Upon the Conclusion of Wilkinson's testimony, a recitation of defendant's testimony to the grand jury commenced. Defendant recounted that during the morning of May 23, he and three friends drove around the Rockford area. At one point, they stopped and one of defendant's companions stated: "'This is a good house to do right here.'" Defendant stated he remained by the car as the other three proceeded through the woods to the house. After 15 to 20 minutes, defendant walked over to the house and observed one of his friends carrying a videocassette recorder out of the house toward the car. Defendant told his friend to take him home; the friend told defendant to get in the car. The friend then drove the car up the driveway, and defendant's two other friends placed in the car other items removed from the home. Defendant was then taken home. Defendant claimed he did not know his friends intended to commit a crime, he did not serve as a lookout, and he would not have gone with his friends if he had known a burglary was contemplated. Defendant explained he did not contact the police until June 5 because he was scared.
At this stage, the questioning turned to the defendant's statement to Wilkinson on July 11. Defense counsel interposed an objection. After a thorough hearing on the admissibility of this portion of the grand jury testimony, the court concluded that while it tended to agree with defense counsel that the testimony was not admissible, it was nonetheless going to deny the oral motion to suppress because it was untimely. Thereafter, the remainder of defendant's testimony to the grand jury was presented to the jury.
The gist of defendant's statement to Wilkinson on July 11, which was used for impeachment purposes in the grand jury proceeding, was as follows. Defendant and his friends drove by the house two or three times. Defendant stayed by the car and acted as if he were working on the car. He then went to the house. One friend kicked the door open and carried out a videocassette recorder. Defendant told Wilkinson two of his friends had checked out the house and committed several burglaries in the area. The items were taken to ...