The opinion of the court was delivered by: Chief Justice Freeman
delivered the opinion of the court:
Following a jury trial in the circuit court of Cook County, defendant, Steven Manning, was convicted of first degree murder and armed robbery. Ill. Rev. Stat. 1989, ch. 38, pars. 9-1(a), 18-2(a). Defendant chose to have the trial Judge determine his sentence. At a separate sentencing hearing, the trial Judge found defendant to be eligible for the death penalty and further determined that there were no mitigating circumstances sufficient to preclude the imposition of that sentence.
Accordingly, the trial Judge sentenced defendant to death on the murder conviction and to a concurrent 30-year prison term on the armed robbery conviction. The death sentence has been stayed pending direct review by this court. Ill. Const. 1970, art. VI, §4(b); 134 Ill. 2d Rs. 603, 609(a). We reverse defendant's convictions and remand for a new trial.
The State's evidence at trial was essentially as follows. On June 3, 1990, the body of the victim, Jimmy Pellegrino, was found floating in the Des Plaines River near the Lawrence Avenue Bridge in or near Chicago. The body's wrists and ankles were bound together with duct tape, the head was in a plastic bag and covered with a towel, and the entire body was wrapped in canvas.
An autopsy revealed that the victim died of a single gunshot wound to the back of the head. The bullet entered the middle of the back of the head and travelled left and slightly downward. There were no chemicals in the body that would accelerate decomposition. The victim had been dead for at least several days, and the body showed signs of prolonged submersion.
The victim's wife, Joyce Pellegrino, testified as follows. The victim worked as a tzuck driver for a trucking company. During this time, the victim was in business with defendant. Joyce believed that this business involved a large amount of money. In the last month before his death, the victim had told her that defendant had "ripped him off for a lot of money," and that he was going to get his money back from defendant.
On the morning of May 14, 1990, the victim told his wife that he had errands to do, and that he was going to meet with defendant. The victim also told her "that if he turns up dead," that she should contact a particular agent with the Federal Bureau of Investigation (FBI) and say that defendant killed him.
Ronald Tyrakowski, a long-time friend of the victim, testified as follows. Tyrakowski admitted that he was convicted of possession with intent to deliver cocaine and was serving a 10-year federal prison sentence. Further, that sentence was part of a plea bargain in which Tyrakowski agreed to cooperate with the federal government in any of its ongoing investigations.
In late 1989 and early 1990, Tyrakowski sold drugs. The victim operated a trucking business cnd sold drugs with Tyrakowski. The victim dealt in kilo amounts, which at that time cost between $20,000 and $25,000. Tyrakowski would lend the victim the money, and the victim would buy and resell the cocaine. The victim would then repay Tyrakowski with a bonus from the revenues received. The victim's main supplier was defendant, whom Tyrakowski had never met.
In the spring of 1990, Tyrakowski had given $25,000 to the victim, who in turn gave the money to defendanv to buy cocaine. However, defendant never delivered the drugs on that deal. The victim covered Tyrakowski's loss from his own assets.
In early May 1990, Tyrakowski and the victim agreed on another drug transaction with defendant. They would buy two kilos of cocaine from defendant for $52,000. Defendant would also include a third kilo for free, to replace the kilo that he previously failed to deliver.
On the morning of May 14, 1990, Tyrakowski and the victim met at around 4700 S. Kedzie Avenue. There, Tyrakowski gave $31,000 to the victim, who already had $14,000 of his own money. Later that morning, a friend of Tyrakowski, Alan Casey, supplied the remaining $7,000 in south suburban Worth.
At about noon, Tyrakowski gave the money to the victim, who was waiting in his car. The victim put all of the money in a gym bag, in which Tyrakowski saw the money, clothes and towels, and a silver .357 revolver. Tyrakowski did not know the victim to have ever brought a gun to a drug deal. The victim said that he was going to meet defendant, and that the victim would telephone Tyrakowski in about an hour. Tyrakowski never saw the victim again. The victim did not call, and Tyrakowski could not reach the victim on his mobile phone. The next day, Tyrakowski called Joyce Pellegrino.
On May 18, Joyce Pellegrino reported her husband's disappearance to the Will County sheriff's police. She told police that this was the first time the victim had been missing or had avoided home for an extended time. She told Chicago Police Detective Louis Rabbit that she suspected that the business the victim had with defendant might have involved drugs. She knew that the victim had borrowed $25,000 for a drug deal. She also contacted the FBI as the victim had instructed.
On June 24, 1990, the victim's automobile was found on a city street. Police did not find any money in the unlocked car, nor did they discover fingerprints, fibers, or blood.
Thomas Dye, a police informant, testified as follows. Dye had a significant criminal history dating from 1978. Dye admitted that throughout his adult life he has had at least 10 felony convictions. At the time of trial, he and his girlfriend were in the Federal Witness Protection Program, and had been relocated outside of Chicago.
In June 1990, Dye was in Cook County jail serving a 14-year sentence for residential burglary. He was also awaiting trial on three felony cases of theft and robbery; he was subsequently convicted of these charges and received a concurrent five-year sentence. During this time, Dye assisted the Illinois State Police in their investigation of jailguards who were bringing drugs into the jail. Dye was moved into another division of the jail with different guards.
On August 17, defendant was incarcerated based on an unrelated charge and was placed in Dye's division of the jail. A friendship developed immediately upon their meeting. They talked about "anything two guys could talk about under those circumstances," but "[p]rimarily crime; crimes that we had done, crimes that we were aware of." Soon thereafter they discussed the pending case for which each was jailed, and how each could help the other evade conviction. Defendant asked Dye if he could provide an alibi for defendant in a case pending in another jurisdiction. As payment, defendant would kill, or arrange to have killed, the main witness in the case against Dye.
During these conversations defendant twice told Dye that he had murdered the victim. In the first conversation, defendant stated that he and another had established the victim in the trucking business and that the victim had actually worked for them. The victim had caused problems for the business, so defendant killed him.
During the next several days, defendant admitted to Dye that the problem between him and the victim did not involve the trucking business, but actually involved drugs. Defendant stated that he had cheated the victim on a drug transaction by not supplying him with cocaine. Defendant decided to cheat the victim a second time. The victim "whined" to defendant about his failure to deliver the cocaine again, and threatened to turn defendant in to the police. Defendant told Dye that "nobody tells on him," so he killed the victim.
Defendant told Dye that he shot the victim once in the back of the head with a .25-caliber semiautomatic pistol from a few feet away. He explained that he used a small caliber gun because a large caliber bullet could travel through a body so the target might survive the shot. However, a small caliber bullet, particularly one aimed at the back of the head, would bounce around inside the brain, ensuring death. Defendant also admitted that he wrapped the victim's body and dumped it in a river, explaining that such a disposal causes incriminating evidence to be more difficult to trace. Defendant also claimed that he put chemicals on the victim's body to accelerate decomposition. Dye believed that defendant was not on drugs during these confessions, and defendant never told Dye that he was taking medication.
On August 22, 1990, Dye met with FBI Agent Gary Miller. Dye agreed to wear a body wire and record his conversations with defendant. On Friday August 24, Agents Miller and Robert Buchan wired Dye, who wore it during the weekend of August 24 through 26. The recording apparatus was taped high up on his inner thigh and the microphones were taped to his navel area. Once the recorder was turned on, it could not be stopped. Each tape ran for two hours.
The recording contained many conversations regarding defendant's and Dye's plan of mutual assistance in their pending cases. Dye testified that during this weekend defendant made an incriminating statement regarding the Pellegrino murder. Defendant pinned Dye's left arm behind his back, pushed him towards the ground, and, gesturing with his hand as a gun, pointed at the back of Dye's head, and said, "it was the same thing" with the victim. However, this conversation, or even any reference to the victim, was not recorded. Rather, the tape contains a two-second inaudible gap. Dye explained that the microphones were pressed against his body when he bent over.
On September 24, Dye again agreed to wear a wire. Dye asked defendant a question regarding killing the victim. Defendant became angry and said "F-k, yeah, I killed him." Again, however, this conversation was not recorded due to a recorder malfunction.
On October 4, Detective Rabbit executed a search warrant for defendant's storage locker in his apartment building. The building's maintenance engineer, while repairing plumbing, saw bullets in defendant's locker, knew that defendant was in jail, and reported what he saw to the police. Detective Rabbit found, inter alia, seven live .25-caliber bullets. Those bullets were subsequently tested with the bullet recovered from the victim. The tests revealed no association beyond the fact that they were all .25 caliber. Further, the bullet recovered from the victim and the bullets found in defendant's locker had significantly different metal composition. The bullet from the victim was never compared to a particular gun.
In December 1990, Dye testified before a federal grand jury regarding the Pellegrino murder. In May or June 1991, the Cook County State's Attorney and Dye's attorney formally agreed that if Dye cooperated with the State's Attorney, told the truth, and testified when asked, Dye's sentence would be reduced from 14 to 6 years. Dye's sentence was accordingly reduced in May or ...