Before the second trial was held, a fourth count of residential burglary of the J. F. McNeil residence was filed by information, involving incidents allegedly occurring on June 27, 1984. Following the second trial a jury verdict was returned finding defendant guilty on count IV and not guilty on all remaining counts.
SUPREME COURT OF ILLINOIS
530 N.E.2d 448, 124 Ill. 2d 456, 125 Ill. Dec. 290 1988.IL.1551
Appeal from the Appellate Court for the Second District; heard in that court on appeal from the Circuit Court of Ogle County, the Hon. Alan W. Cargerman, Judge, presiding.
JUSTICE CUNNINGHAM delivered the opinion of the court.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE CUNNINGHAM
In the circuit court of Ogle County, defendant Thomas Clankie was charged by three separate indictments with three counts of residential burglary in that, on June 11, 13, and 14, 1984, he entered the dwelling place of J. F. McNeil with intent to commit a theft therein (Ill. Rev. Stat. 1983, ch. 38, par. 19-3). A jury found him guilty on counts I and III (involving incidents on June 11 and 14) and not guilty on count II
Defendant appealed his conviction, alleging that use at the second trial of certain self-incriminating tape-recorded statements made by him violated his sixth amendment right to counsel. The appellate court (154 Ill. App. 3d 197) affirmed the conviction, finding that, at the time the statements were recorded, defendant's right to counsel with respect to the June 27 burglary had not yet attached. Pursuant to Supreme Court Rule 315 (107 Ill. 2d R. 315), we granted defendant's petition for leave to appeal.
The sole issue presented for our review is whether the use of certain incriminating tape-recorded statements of defendant, surreptitiously obtained through the help of Debra Schreck, a government informant and former friend of defendant, violated defendant's sixth amendment right to counsel. (The sixth amendment right to counsel applies to defendants in State prosecutions via the fourteenth amendment. (Gideon v. Wainwright (1963), 372 U.S. 335, 9 L. Ed. 2d 799, 83 S. Ct. 792.)) In order to understand the relevance of these tape-recorded statements and how they were obtained, it is necessary to review certain evidence presented at the first trial, as well as events occurring between the two trials. The facts are fully set forth in the appellate court's decision and will be summarized herein only as necessary to a resolution of the issue before us.
At the first trial, Frank Boeck, a witness for the People, testified to incidents allegedly occurring on June 11, 13, and 14, 1984. He testified that on each of these dates he and defendant entered the McNeil residence and removed certain items. He described to some extent how the plan to enter upon the property developed, how he and defendant entered upon the property, what they removed from the premises on each occasion, and what they did with the removed items. Another witness, Debra Schreck, testified on behalf of the defense. She stated that she was a former girlfriend of Boeck and that she and Boeck had lived with defendant and his wife during part of the time in question. She testified regarding her knowledge of the events in question, generally inculpating Boeck and exculpating defendant.
During the time between the two trials, Debra Schreck contacted the police. She indicated that, at defendant's request, she had lied during the first trial, and that she wished to tell the truth in any future proceedings. She agreed to cooperate in a continuing investigation of the crimes, including a newly suspected offense of defendant, subornation of perjury. (The suspected offense of subornation of perjury was based on defendant's allegedly inducing Debra Schreck to lie on his behalf at the first trial.)
Pursuant to a warrant, Debra Schreck wore a wiretap device and visited defendant on several occasions, under the pretense of wanting to rehearse her testimony for the second trial, but with the secret intent of getting defendant to admit that he had induced her to lie at the first trial. During these conversations defendant made statements implicating himself in a June 27 burglary and theft at the McNeil residence. He stated that Boeck had "the wrong date," that "Butch [Frank Boeck] said the 14th . . .. It was the 27th. . . . If he'd have remembered the 27th, I'd have been done." Defendant described the means by which he and Boeck had gained entry, and his description corresponded with the mode of entry described by Boeck at the first trial as Boeck testified regarding an alleged June 11 burglary. Defendant described specific items which they had removed on June 27; these were in part the same items described by Boeck as having been removed on June 11, 13, and 14.
It was based on these tape-recorded statements that the People added count IV, alleging that a burglary occurred on June 27, 1984; it was these tapes which undoubtedly played a large role in convincing the jury that defendant had in fact committed the burglary on June 27; and it was these tapes which defendant has argued were obtained in violation of his sixth amendment right to counsel.
The parties do not dispute that defendant's right to counsel had attached at the time of the taping with respect to the pending charges. (See Brewer v. Williams (1977), 430 U.S. 387, 398, 51 L. Ed. 2d 424, 436, 97 S. Ct. 1232, 1239 (stating that "[w]hatever else it may mean, the right to counsel granted by the Sixth and Fourteenth Amendments means at least that a person is entitled to the help of a lawyer at or after the time that judicial proceedings have been initiated against him").) The parties also do not dispute that the surreptitiously recorded tapes were inadmissible with respect to the charges already pending as of the date of the recordings. (See Maine v. Moulton (1985), 474 U.S. 159, 88 ...