Appeal from the Circuit Court of Lake County. No. 94--CF--1628 Honorable Christopher C. Starck, Judge, Presiding.
The opinion of the court was delivered by: Justice Hutchinson
In 1994 defendant, Hector Rodriguez, was convicted of one count of first-degree murder (720 ILCS 5/9--1(a)(1) (West 1994)) and one count of aggravated battery with a firearm (720 ILCS 5/12--4.2(a)(1) (West 1994)) and sentenced to concurrent 28-year terms of incarceration. On appeal this court reversed and held, inter alia, that the trial court improperly granted the State's motion to join his case with a co-defendant's. See People v. Rodriguez, 289 Ill. App. 3d 223, 237 (1997) (Rodriguez I). This court also held that the trial court properly admitted a tape recording that defendant alleged was made in violation of the eavesdropping provisions of section 14--2(a) of the Criminal Code of 1961 (the Code) (720 ILCS 5/14--2(a) (West 1994)).
Rodriguez I, 289 Ill. App. 3d at 238. On remand, defendant was retried and convicted of first-degree murder (720 ILCS 5/9--1(a)(2) (West 1994)) and aggravated battery with a firearm. The trial court sentenced defendant to 28 years' incarceration for the murder charge and a consecutive term of 6 years' incarceration for the aggravated battery charge. Defendant's posttrial motions were denied, and defendant timely appeals. On appeal defendant contends that (1) the State failed to prove him guilty beyond a reasonable doubt; (2) the trial court erred when it admitted an audiotape of a telephone conversation made without defendant's consent; (3) the trial court erred when it ruled that defendant could not call his mother to impeach statements made in the audiotape; (4) the trial court invaded the jury's role as fact finder when it answered a jury question regarding the interpretation of a transcript of defendant's first trial; (5) defendant's 34-year sentence was excessive when compared to his original 28-year sentence because the trial court punished defendant for successfully prosecuting his first appeal; and (6) the trial court erred when it failed to calculate and include in the mittimus credit for time served. We affirm in part, vacate in part, and remand for a determination of defendant's credit for time served.
In accordance with the criteria of Supreme Court Rule 23(a) (166 Ill. 2d R. 23(a)), we have determined that only defendant's second issue, admissibility of the audiotape, is of precedential significance. Accordingly, we have ordered that the remaining portions of this disposition be unpublished.
The procedural history of and the evidence presented at defendant's first trial are set out in this court's previous opinion. See Rodriguez I, 289 Ill. App. 3d 223. The following supplemental facts are provided to address the issues relevant to this appeal.
Before defendant's second trial, he moved to suppress a tape recording made by Arlene Carrion of a telephone conversation she had with defendant. The State responded that the issue had been addressed in the direct appeal of defendant's first conviction, in which this court held that the tape was admissible. Defendant argued that the eavesdropping statute had been amended and that the amended statute should be retroactively applied to bar the admission of the recording. The trial court held that the earlier appellate decision was the "law of the case" and ruled that the tape would be admissible. [Nonpublishable material removed under Supreme Court Rule 23.]
At trial, Arlene Carrion testified that she knew both Freddie Zuniga and defendant. On June 5 or June 6, 1994, she learned that Zuniga had been arrested for murder. Carrion spoke with defendant at a Puerto Rican Society meeting hall after learning of Zuniga's arrest but could not recall the exact date. Carrion testified she could not recall the substance of the conversation. Carrion also testified she could not recall what defendant said about the shooting. Carrion admitted testifying under oath in the earlier proceeding. The State asked whether Carrion recalled the following exchange:
"Q. What did he tell you about the shooting?
A. I had asked him if he did it and he said yes he did." Carrion denied recalling whether she had given the answer. The State then asked if Carrion recalled the following exchange.
"Q. What, if anything, did he tell you about whether Freddie had done it?
A. He admitted to me that he did not do it.
Q. That who did not do it?
A. That Freddie did not do it."
Carrion denied recalling the exchange.
Carrion testified that she also spoke with defendant on the telephone about the shooting. Carrion testified that she made a recording of the conversation using her answering machine. However, Carrion denied recalling the content of the conversation. The audiotape was played for the jury; the transcript of the audiotape included in the record contains the following exchange.
"[DEFENDANT]: Lake County, they want me to confess, I told the guard I'd rather rot in jail.
[CARRION]: Who wants you to confess?
[DEFENDANT]: Those, those, the state, cause they said they think I know more.
[CARRION]: But they don't got no proof you did that, you did it right?
[DEFENDANT]: They don't know who did it. Freddie said he did it, to get me off, all I'm getting charged with is for carrying the gun, and for hiding it. [T]hat's why I'm going to ...