Appeal from the Circuit Court of Jasper County. No. 93-CF-37. Honorable Richard H. Brummer, Judge, presiding.
The Honorable Justice Hopkins delivered the opinion of the court: Welch, J., and Lewis, J., concur.
The opinion of the court was delivered by: Hopkins
JUSTICE HOPKINS delivered the opinion of the court:
Four defendants, Robert Hanson, Ronald Beavers, Bobby Tracy, and Frank Yager, were convicted of various felony offenses charged pursuant to the Illinois Environmental Protection Act (the Act). (415 ILCS 5/1 et seq. (West 1992).) Three defendants, Hanson, Tracy, and Yager, appeal. Defendant Ronald Beavers has filed no notice of appeal and is not involved in this appeal. We note that when we refer to the defendants, we mean only Hanson, Tracy, and Yager, unless an otherwise specific reference is made to Beavers, since we have discovered, in a terribly confusing set of appellate briefs and motions, that no effective notice of appeal was filed in behalf of defendant Beavers.
The issues which are dispositive of this case are: (1) whether the trial court erred by denying defendants' motion to dismiss all charges on grounds of prosecutorial misconduct; (2) whether the evidence is legally sufficient to support the convictions of defendant Hanson; and (3) whether the constitutional rights of defendants Hanson, Tracy, and Yager were violated by their attorney's concurrent representationof all four defendants in conjunction with the same attorney's representation of the corporation employing all four defendants. For reasons we will more fully explain, we reverse the convictions of Hanson, Tracy, and Yager, we remand in part, and we note that we have no jurisdiction as to defendant Beavers.
On June 3, 1993, the State filed a three-count information against the four defendants. Count one charged Hanson and Beavers with unauthorized use of hazardous waste and alleged that without lawful justification Hanson and Beavers knowingly transported approximately 16 barrels of hazardous waste to an unlicensed facility in rural Jasper County, Illinois, a class four felony. (415 ILCS 5/44(d)(1)(C) (West 1992).) Count two charged all four defendants with criminal disposal of hazardous waste and alleged that without lawful justification defendants knowingly disposed of approximately eight barrels of hazardous waste by dumping them onto the ground, a class three felony. (415 ILCS 5/44(c)(1) (West 1992).) Count three charged Hanson and Beavers with unauthorized use of hazardous waste and alleged that they knowingly stored approximately 16 drums of hazardous waste at an unlicensed facility in rural Jasper County, a class four felony. 415 ILCS 5/44(d)(1)(A) (West 1992).
Tracy and Yager are employees of Armor Shield of Illinois, Ltd. (Armor Shield), a corporation. Robert Hanson is Armor Shield's president. Ronald Beavers is Armor Shield's general manager. Armor Shield's business endeavors include cleaning, refurbishing, and painting underground storage tanks, a by-product of which is hazardous waste.
On March 11, 1991, Hanson dispatched Tracy and Yager to a farm (Neese farm) in rural Jasper County. Beavers was out of the State on a business trip all day on March 11, 1991. It is undisputed that Hanson directed Tracy and Yager to separate solid material from liquids in several partially full 55-gallon barrels located in a shed at the Neese farm in order that Armor Shield could ship full barrels of hazardous waste to a licensed disposal facility in Indiana. Yager testified at trial that he and Tracy went to the Neese farm as directed and separated the solid material from the liquids. It is undisputed that while at the Neese farm, Tracy and Yager spilled some of the hazardous waste onto the ground south of the shed while separating the solids from the liquids. Defendants contend that Yager and Tracy accidentally spilled no more than five gallons of waste and that a small amount of diesel fuel spilled out of a skid loader. Yager testified that he and Tracy also consolidated trash from an existing trash pile just south of the shed and buried it with some nonhazardous trash that remained in the barrels.
On June 16, 1993, all four defendants, by their single attorney, Scott Spooner, filed a motion to quash the information. The substance of the motion was the allegation that the assistant attorney generals who prosecuted the criminal action against defendants were guilty of misconduct in violation of defendants' constitutional rights to due process. Specifically, the motion alleged that the State had concealed or destroyed a tape recording of an interview of Tracy and Yager by attorney general investigator Jay Evans. Attached to the motion to quash are several documents, including affidavits signed by Tracy and Spooner. Tracy states in his affidavit that Evans tape-recorded the interview with Tracy and Yager. Tracy's affidavit relates nothing about waiving any conflict of his attorney. Spooner states in his affidavit, "In April, 1992, and for a substantial period prior and subsequent thereto, I served as counsel for Armor Shield of Illinois, Ltd., Bob Hanson, Ron Beavers, Bobby Tracy and Frank Yager. On July 2, 1993, the court denied defendants' motion to quash as untimely.
On September 3, 1993, all four defendants filed a motion to dismiss the information, restating the allegations made previously in the motion to quash. The trial court conducted a lengthy evidentiary hearing on the motion to dismiss. At that hearing, Evans testified that he did not tape-record the March 25, 1991, interview with Tracy and Yager. Tracy and Yager both testified that Evans used a hand-held tape recorder to tape the interview. At the motion hearing, defendants also presented evidence that on February 6, 1992, representatives of the Illinois Environmental Protection Agency (IEPA) and the attorney general's office met with the attorneys for Armor Shield, Scott Spooner and Brent Gwillim, to discuss the regulatory requirements governing storage and transportation of hazardous materials. When the meeting adjourned, all agreed to the preparation of a consent order to be filed contemporaneously with a civil action against Armor Shield by the IEPA.
On March 12, 1992, the attorney general's office impaneled a grand jury to investigate possible criminal charges against Armor Shield, Hanson, and Beavers for violations of the Act. When Tracy and Yager were subpoenaed to testify before the grand jury, Spooner entered his appearance as their attorney. The State immediately objected to Spooner representing Tracy and Yager, on the ground that his representation of Armor Shield was in conflict with his representation of Tracy and Yager. The State's motion to disqualify alleged, in part, that Tracy and Yager "seem more concerned about their jobs than they do about their criminal liability." Tracy and Yager both filed affidavits in response to the State's motion to disqualify Spooner, stating that they were not concerned about their jobs with Armor Shield, but stating nothing about waiving their attorney's conflict of interest. The State filed its own response, contending that "no tape recordings exist or were made of interviews of Frank Yager or Bobby Tracy pursuant to investigation of this matter."
The trial judge presiding over the grand jury investigation took the State's motion to disqualify Spooner under advisement. No order was ever entered on the motion to disqualify Spooner. The State did not submit the case to the grand jury for indictment but chose instead to file the criminal information in lieu of reconvening the grand jury. After filing the information, the State did not raise the issue of Spooner's conflict of interest.
At the hearing on defendants' motion to dismiss, defendants introduced several letters back and forth between Spooner and Jim Morgan, the assistant attorney general in charge of the civil proceedings against Armor Shield. Defendants point out that several letters from Morgan refer to "the tape" recording of the March 25, 1991, interview, without any question that such a tape actually exists. Defendants argue that the references in Morgan's letters are conclusive evidence that such a tape was made and later concealed or destroyed by the State. However, at the hearing on the motion to dismiss, Morgan testified that he referred to the tape based upon Spooner's earlier references to a tape, without first checking with Evans to determine if Evans actually made a tape of the interview. Morgan testified that he assumed that Spooner knew what he was talking about when he referred to a tape of the interview.
On November 5, 1993, the trial court denied defendants' motion to dismiss, finding that defendants "failed to prove by a preponderance of the evidence that an audio tape ever existed of the ...