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People v. Nestrock

September 08, 2000


Appeal from the Circuit Court of Du Page County. No. 96--CF--2463 Honorable Peter J. Dockery, Judge, Presiding.

The opinion of the court was delivered by: Presiding Justice Bowman

Defendant, Sarah K. Nestrock, was convicted of reckless homicide (720 ILCS 5/9--3(a) (West 1996)) and subsequently sentenced to concurrent sentences of two years' imprisonment.

This court reversed defendant's conviction in People v. Nestrock, 306 Ill. App. 3d 216 (1999). Our supreme court denied the State's petition for leave to appeal but, under its supervisory authority, directed this court to vacate our opinion and ordered that we reconsider the appeal after allowing the parties to submit briefs on the issue of whether the Illinois eavesdropping statute requires the reversal of defendant's conviction and a remand for a new trial.

In addition to the eavesdropping issue, defendant contends she was denied a fair trial because (1) the State made several references to her membership in a social group for gay students, intending to prejudice her in the eyes of the jury; (2) the trial court allowed the State's accident reconstruction expert to offer the opinion that defendant was conscious while driving her vehicle; (3) the trial court denied defendant's motion to suppress the tape-recorded conversation between defendant and one of her friends without conducting an evidentiary hearing; (4) the trial court did not allow defendant to offer as substantive evidence a statement that she made to an investigating police officer shortly after the accident; and (5) defendant did not receive the effective assistance of counsel. After considering the supplemental briefs, we come to the same conclusion as we did in our earlier opinion. The playing at trial of defendant's conversation recorded in violation of the eavesdropping statute requires the reversal of her conviction and a remand for a new trial.

Following a car accident that caused the deaths of Stephen Cornelius and his eight-year-old son, Zachery, defendant was charged with reckless homicide and aggravated driving while under the influence of drugs (625 ILCS 5/11--501(d)(1)(C) (West 1996)). Before trial, the State nol-prossed the charges that were based on driving under the influence of drugs.

The evidence at trial revealed that the accident in question took place on September 25, 1996, at the intersection of 79th Street and Clarendon Hills Road in Willowbrook. Defendant, who was driving a 1995 Ford Escort station wagon, was traveling south on Clarendon Hills Road when her car left the road and entered the ditch on the west side of the road. Defendant's car traveled through the ditch for approximately 300 feet, exited the ditch, traveled another 70 feet, and then ran into the driver's side of the Cornelius vehicle, a 1992 Pontiac Bonneville, which was stopped on 79th Street at a stop sign. Stephen Cornelius was driving the Bonneville, and Zachery was seated directly behind him. Barbara Hall, Stephen's wife and Zachery's mother, was also in the car at the time of the collision, as was the couple's 10-year-old daughter, Jane, who was seriously injured. The State's accident reconstruction expert opined that defendant's car was traveling 42 miles per hour at the time of impact. Defendant's accident reconstruction expert opined that her speed at impact was 31 miles per hour.

At trial, the State presented the theory that defendant purposely drove her car into and through the ditch in an attempt to either kill herself or feign suicide to attract the attention of her family and friends. Defendant testified that she was not trying to commit suicide. She stated that she remembered turning on her right turn signal and the next thing she remembered was being stopped next to a telephone pole.

In addition to other evidence that defendant was contemplating suicide, the State presented a tape-recorded conversation between defendant and Nagayo "Nick" Heath, a close friend of defendant's at the time of the accident. The recorded conversation took place on the evening of September 26, 1996, the day after the accident.

Heath testified that on the morning of September 26, 1996, he received a phone call from defendant, who said that she had hit a tree and was in the hospital. Later that day, defendant called Heath and another friend, Jason Taylor, at the home of Beth Johnson. Heath talked to defendant, who told him that she had killed two people. Heath testified that defendant said that "[s]ubliminally [she] pulled a Justin." This was a reference to another friend of defendant's, Justin Krause. Heath testified that on September 23, 1996, defendant told him that Krause had tried to kill himself by driving his car into a tree.

From Beth Johnson's house, Heath then went to work, where he received a message from the Willowbrook police department. Heath spoke with Officer Andy Pellicioni and arranged to meet him the following day or the day after. From work, Heath went to Jason Taylor's house. Defendant called Taylor's house that night at 8 or 9 p.m. Heath spoke with defendant and asked her if she meant to commit suicide. Defendant did not respond. Taylor and Heath decided to tape-record their next conversation with defendant because they had been contacted by the police and wanted to protect themselves.

Defendant paged Jason Taylor at about 10 p.m., and Taylor called her back. While Heath was talking to defendant, Taylor, who was listening on another extension, recorded the conversation. Defendant did not know that Taylor was recording the conversation. The record submitted to this court does not include the tape recording or a transcript of the tape recording. Certain portions of the tape, however, are quoted in the report of proceedings. These portions indicate that, during their conversation, Heath asked defendant, "Did you or did you not wish to end your life?" Defendant replied "yes." Heath then said, "Okay. That's a starting stone, it's somewhere for me to go from here. Now, we established why because of your family life, you know, and your new found friend, illness, what have you." Defendant again responded "yes."

Before trial, defendant brought a motion to suppress her recorded conversation with Heath. She argued that the language of the Illinois eavesdropping statute (720 ILCS 5/14--1 et seq. (West 1996)) barred the admission of the tape and that the investigating police officers had arranged and directed the tape recording without giving her any warning. The trial court ruled that Heath did not violate the statute by recording his own conversation with defendant and that this would be true even if the police department had instigated the recording.

In her posttrial motion, defendant asserted that it was error for the trial court to deny her motion to suppress without conducting an evidentiary hearing to establish whether the investigating police officers were involved in the recording. Defendant did not request an evidentiary hearing during trial. During the hearing on the posttrial motion, the trial court asked counsel for defendant if he had any evidence that the Willowbrook police department instigated or arranged the tape recording. Defense counsel admitted that he had no such evidence. In ruling on the posttrial motion, the trial court noted that the evidence indicated that Heath recorded his conversation with defendant entirely of his own volition. The trial court further stated that suppression was not available to defendant under such a circumstance.

We first consider defendant's argument that the trial court erred by denying the motion to suppress without holding an evidentiary hearing to determine whether the Willowbrook police department instigated or arranged the recorded conversation. We note initially that, because defendant did not request an evidentiary hearing before or during trial, this issue is waived for the purposes of our review. People v. Enoch, 122 Ill. 2d 176, 186-87 (1988). This issue does not merit consideration under the plain error doctrine because there was no error and defendant has not shown that the failure to conduct an evidentiary hearing contributed to her conviction (see People v. Sullivan, 72 Ill. 2d 36, 44 (1978)).

At trial, Nick Heath, Jason Taylor, and Officer Pellicioni all testified that the police did not suggest, request, or otherwise arrange the recording. During the hearing on the posttrial motion, defendant conceded that she had no evidence to support her theory that the investigating officers were involved with the recording. We find this case analogous to People v. Govin, 213 Ill. App. 3d 928, 935-36 (1991). In Govin, the court considered whether it was error for the trial court to deny the defendant an evidentiary hearing on his motion to suppress tapes of a wiretap. Govin, 213 Ill. App. 3d at 935-36. The court held that the trial court correctly denied the request for an evidentiary hearing because the defendant did not specify which portions of the affidavit supporting the wiretap request were false and did not offer any evidence to support his claim that the affidavit contained false statements. Govin, 213 Ill. App. 3d at 935-36. In the present case, defendant presented no evidence to support her theory of police involvement; thus, there was no reason for an evidentiary hearing and no harm to defendant.

We must disagree, however, with the trial court's denial of defendant's motion to suppress. We conclude that the plain language of the Illinois eavesdropping statute bars the admission of the recording and that it was reversible error for the trial court to admit the recording into evidence. Although defendant failed to raise this issue in her appeal, we consider it because it involves, in our view, a grave error of law. As we stated in People v. Olsewski, 257 Ill. App. 3d 1018 (1994), "[w]hile the general rule is that a reviewing court should not normally search the record for unargued and unbriefed reasons to reverse the trial court judgment, a reviewing court need not ignore grave errors of law which the parties on appeal either overlook or decline to address." Olsewski, 257 Ill. App. 3d at 1021-22; see also People v. Cortes, 181 Ill. 2d 249, 282 (1998).

The State contends that the supreme court's supervisory order casts doubt on the propriety of our reliance on Olsewski and Cortes and impliedly indicates that the supreme court did not consider the trial court's error to be grave. We do not take the supreme court's supervisory order to mean anything more than what it says. The supervisory order was silent regarding the substance of our conclusions on the eavesdropping issue. Accordingly, we cannot agree with the State that the supreme court disagreed with our determination that the trial court committed a grave error of law, and we stand by that determination.

The eavesdropping statute provides that a person commits eavesdropping when he:

"[u]ses an eavesdropping device to hear or record all or any part of any conversation unless he does so (1) with the consent of all of the parties to such ...

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