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April 5, 1994


Appeal from the Circuit Court of the 21st Judicial Circuit, Kankakee County, Illinois. No. 91-CF-850. Honorable John F. Michela, Judge Presiding.

Released for Publication June 9, 1994.

Present - Honorable Allan L. Stouder, Justice, Honorable Tobias Barry, Justice, Honorable Michael P. Mccuskey, Justice

The opinion of the court was delivered by: Stouder

JUSTICE STOUDER delivered the opinion of the court:

Following a jury trial, the defendant, Jerry Karraker, was found guilty of unlawful possession of a weapon by a felon (720 ILCS 5/24-1.1(a) (West 1992)), unlawful use of a weapon, in that he manufactured a machine gun (720 ILCS 5/24-1(a)(7) (West 1992)), and theft (720 ILCS 5/16-1(a)(4) (West 1992)). The transcript of the sentencing hearing shows the trial court sentenced the defendant to two years imprisonment on the unlawful possession charge and three years imprisonment on the unlawful use charge. The docket entry also shows the court sentenced the defendant to two years in prison on the theft charge. The defendant appeals. We reverse and remand.

A grand jury returned a three-count indictment against the defendant, following a six-month investigation in which the defendant's conversations with a government informant were taped. The government informant, Russell Vining, had known the defendant for over 10 years. The record indicates the defendant had recently bought a car from Vining and owed Vining $2,600. The record shows Vining was cooperating with law enforcement officials, in particular the Illinois State Police, because he had at least one criminal charge pending against him at the time.

Vining testified that on April 18, 1991, he was at the Redwood Inn in Kankakee for lunch. The defendant also happened to be there in the lunch line. They struck up a conversation in which the defendant told Vining that he had a "Wildey" gun which he wanted to sell for $1500. Vining told the defendant he had a better gun than that in his car. Vining testified that although they sat at separate tables to eat lunch, they were still within 5 or so feet of each other and their conversation continued. Vining testified he told the defendant that he wanted a MAC-11 handgun and the defendant told him he would help him get one. Immediately after this conversation, Vining telephoned Jeff Justice of the Illinois State Police and told Justice about the conversation with the defendant. According to Vining, he had been instructed by Justice to report anything which was not legal in order to "make amends for what [he] had done."

In late April, 1991, the defendant, who operated a concrete business, was seriously injured when he was crushed by a heavy piece of the machinery. He was hospitalized until the first week in June. After his release from the hospital, the defendant and his wife, Penny Karraker, stayed at the home of his mother, Helen Karraker, so that Helen could help Penny take care of him.

On June 6, 1991, Vining visited the defendant, at Helen's home. On his person he carried a device which allowed the state police to overhear and tape the conversation. The tape of this conversation and 10 other conversations which took place from June 1991 through October of 1991 were played to the jury in their entirety. In addition, the jury was given transcripts of the conversations to read along with while the tapes were played.

(Vining testified he had no non-recorded conversations with the defendant during this period of time.) Defense counsel raised no objection, even though the taped conversations included an enormous amount of totally irrelevant and highly prejudicial statements by the defendant.

On the tape of the June 6, 1991, conversation, after talking about a number of subjects, Vining asked the defendant whether he had found him a gun. The defendant stated he had not had a chance, then stated he found a Mack (sic) for $380. Thereafter the following conversation took place:

"[Vining:] * * * Is that like the one Randy had?

[Karraker:] It ain't got - It ain't got no pipe on the end of it.

[Vining:] Huh. Can you get me one?

[Karraker:] That I don't know.

[Vining:] Well, that'd be no fun without that.

[Karraker:] Ehh - You - that's real easy to convert. You can take that son of a bitch apart, there's a little spring in there, you take your finger, scoot that son of a bitch over, (unintelligible) want to change it back to semi, make it legal, (unintelligible).

[Vining:] Would you - switch it for me?

[Karraker:] Oh, I can show you how to do it, hell there's about ten ways to change them.

[Vining:] What would that run me?

[Karraker:] I don't really know. I - I figure somewhere around four and a half (unintelligible), for the gun. * * *."

The defendant then discussed how to build a silencer, and how he had built a silencer for another person about three years before. Vining asked the defendant why he didn't go into the business of producing silencers. The defendant stated it was not worth the risk of getting caught. Following further conversation about silencers and getting a license in Indiana for an automatic weapon, Vining again asked the defendant if he would convert a gun for him. The defendant stated he would show Vining how to do it. Vining continued to press the defendant to get him a gun and convert it into an automatic weapon, asking him a number of times to do it for him. The defendant promised to find out what price the "guy" was asking for the gun.

After further Discussion of guns, Vining asked the defendant if he had sold the handgun he was asking $1,500 for. The defendant asked Vining if he wanted to see the gun. From the tape, it appears the defendant got up and left the room. After a period of time, Vining is heard to ask whether he should carry it. The defendant responded, "Take one end." The gun case was then opened and Vining inspected the gun.

The defendant and his wife testified at trial that she retrieved the gun from under the couch in the room where the two men were talking and that she handed the gun case to Vining. The defendant and his wife further testified that she was the owner of the gun, and that the gun was kept at Helen Karraker's home because they did not want to have guns in their home, ...

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