APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT
546 N.E.2d 1101, 190 Ill. App. 3d 713, 138 Ill. Dec. 46 1989.IL.1733
Appeal from the Circuit Court of Marion County; the Hon. Michael R. Weber, Judge, presiding.
JUSTICE RARICK delivered the opinion of the court. WELCH, P.J., and GOLDENHERSH, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE RARICK
Fyke's conviction resulted from his participation in a conspiracy to kill Robert Alderson, Jr., whom the conspirators believed to be an informant. The conspirators included Fyke and his wife Tammy, Frank Volkmar, Paul Potts, Gary Daubman, Tim Clifton, and Gale Rankin. Volkmar and Potts were involved in drug dealing with the Fykes. Rankin was a friend of the Fykes and was living with them at the time of the murder.
Co-defendant Paul Potts testified on behalf of the State. Several weeks prior to Alderson's murder, he and Volkmar were in Salem at the Fykes' house to obtain some marijuana to sell. Tammy Fyke took Volkmar and Potts to the garage, where there were huge stacks of marijuana, as well as numerous guns. While in the garage, Rankin entered and told Tammy that "Red" had called. "Red" was Alderson's nickname. Tammy became angry and stated that she was tired of "Red" talking so much and that she was going to "shut him down."
Sometime later, Tammy and Doug Fyke brought 45 to 50 pounds of marijuana to Volkmar's house in Alton. They believed the Salem police were about to make some drug-related arrests and didn't want anything in their house. Volkmar and Potts were to sell the marijuana in the Alton area. While there, Tammy Fyke said she wanted a man killed because he was talking too much, but Volkmar indicated that it would be better if the guy was just hurt, and that if he were hurt, it would leave the Salem area open. Daubman finally agreed to kill Alderson in exchange for drugs and money.
On September 4, 1986, Volkmar, Potts, and Gary Daubman drove to the Fykes' house in Salem because there was to be a party there. Daubman was worried that Alderson might be armed, so Volkmar obtained a .25 caliber pistol which he gave to Daubman, and Daubman brought the gun with him. Once there, Tammy Fyke, Daubman, and Volkmar went into the kitchen, where they discussed drugging Alderson because they were afraid he might have a gun. Tammy and Doug Fyke made several phone calls in an attempt to find some drugs to use on Alderson. Doug Fyke and Volkmar then drove to a motel in Centralia where they met Tammy Williams, Alderson's girlfriend. Clifton had arranged for Williams to go to the motel with Keith Kirgan. Part of the conspirators' plan was to make Alderson believe that his girlfriend had been kidnapped. When Fyke and Volkmar arrived, Fyke left with Kirgan while Volkmar remained at the motel with Williams.
After dropping Kirgan off at Hardee's restaurant in Salem, Fyke returned home. Shortly thereafter, Rankin returned home from work to the party. Tammy Fyke asked Rankin to show Daubman how to use the gun. Rankin, Daubman, and Tammy then left for a place called "the bottoms" to practice shooting. Potts testified that he left at that point and went to a bar. When he returned to the Fykes' house several hours later, everybody was upset. Daubman stated that he didn't know why everyone else was upset because he was the one who had done it. Tammy Fyke stated that she was glad it was done. Doug Fyke asked if they were sure the victim was dead.
Potts, Daubman, and Volkmar then drove back to the Alton area in Rankin's car. Once they returned to Alton, they put the car behind Potts' brother's house in Rosewood Heights, and Volkmar dropped the gun in the Hartford canal.
Rankin testified that upon coming home from work, he, Tammy Fyke, and Gary Daubman drove to "the bottoms" to practice shooting. Later that evening, Rankin and Daubman returned to "the bottoms." Rankin was armed with a .38 caliber pistol and Daubman had the .25 caliber pistol. Shortly after arriving, Tammy Fyke drove up with Alderson. After a short conversation, Daubman ordered Alderson to lie on the ground. As Tammy and Rankin walked away, Rankin heard two or three shots. Rankin walked back to Daubman, retrieved the pistol, and drove away. Rankin also testified that he believed "Red" was going to be "talked to" and that he did not know he was to be killed. Rankin further testified that the day after the murder he, Tammy Fyke, and Tim Clifton went back to the scene of the murder, doused Alderson's body with gasoline, and set it on fire.
Fyke's first argument on appeal is that he was denied due process of law in that at the time the arrest warrant was issued, the information had not been sworn to as required by statute. The warrant was therefore invalid, he argues, and his subsequent arrest illegal. But for the illegal arrest, he maintains, he would not have made certain statements inculpating himself and such statements should have been suppressed as the fruits of an illegal arrest. Because it is impossible to determine what the outcome of his trial would have been had those statements been suppressed, Fyke argues, he must be granted a new trial.
The record reveals that on the evening of September 9, 1986, the Salem police received information from the police in Alton implicating the Fykes in the murder of Alderson. Fearing that a suspect at large in the Alton area might telephone and warn them, the police and the State's Attorney immediately prepared an information, arrest warrants, and a search warrant. These documents were presented to Judge Richard Hodson by the State's Attorney and Agent Larry Coughlin of the Illinois Division of Criminal Investigation at 3 a.m. the following morning. Agent Coughlin was placed under oath by Judge Hodson and swore to the truthfulness of the statements in the affidavit supporting the complaint for search warrant and to the truthfulness of his answers to Judge Hodson's questions. Although apparently unnoticed at ...