Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois, Circuit No. 10-CF-1029. The Honorable Edward A. Burmilla, Jr., Judge, Presiding.
Reversed and remanded.
In a prosecution for solicitation of murder for hire where defendant filed a motion to dismiss the indictment or to suppress evidence the State allegedly obtained by taking advantage of an attorney's lapse in ethical judgment when the attorney consulted with defendant about defendant's case but was not retained by defendant, and defendant's motion to suppress the contested evidence was granted in part and the State filed a certificate of impairment and an interlocutory appeal challenging the trial court's ruling, the appellate court reversed the trial court's ruling and remanded the case for further proceedings on the grounds that defendant failed to establish that the attorney ever received information that could be significantly harmful to defendant or that the two matters at issue were the same or similar.
James Glasgow, State's Attorney, of Joliet (Judith Z. Kelly (argued), of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
Steven Varel (argued), of State Appellate Defender's Office, of Ottawa, for appellee.
JUSTICE CARTER delivered the judgment of the court, with opinion. Justices Lytton and O'Brien concurred in the judgment and opinion.
[¶1] Defendant, Christian L. Shepherd, was charged with solicitation of murder for hire (720 ILCS 5/8-1.2(a) (West 2010)). During pretrial proceedings, he filed a motion to dismiss the indictment or to suppress evidence that the State had allegedly obtained by taking advantage of a lapse in ethical judgment by an attorney that defendant had consulted with about the case but had not retained. After a hearing, the trial court granted the motion in part and suppressed the contested evidence. The State filed a certificate of impairment and brought this interlocutory appeal to challenge the trial court's ruling. We reverse the trial court's judgment and remand the
case for further proceedings consistent with this opinion.
[¶2] I. FACTS
[¶3] On May 1, 2010, defendant was arrested and charged with aggravated criminal sexual assault (the sexual assault case). On May 4 and May 11, 2010, while defendant was in custody at the jail, he had two consultations by video with attorney Anthony Tomkiewicz about Tomkiewicz possibly representing defendant in the sexual assault case. Defendant had decided to retain Tomkiewicz and was going to have his father bring money into Tomkiewicz's office to pay the retainer.
[¶4] During or around that same time period, on or leading up to May 13, 2010, defendant was allegedly discussing plans with a fellow inmate, Franklin Bryant, to have Bryant kill some or all of the witnesses in the sexual assault case. Bryant was in jail at the time for a felony unlawful possession of a weapon charge (the weapons offense or the weapons case). Defendant gave Bryant a map to the residence of one of the intended victims and a written statement that Bryant was supposed to read while standing over the intended victims at the time of the killings. For carrying out the killings, Bryant was to receive at least $900.
[¶5] Unbeknownst to defendant, however, Bryant turned the documents over to police officers at the jail and told the officers what defendant was planning. Bryant agreed to wear a wire so that the police officers could get defendant on tape discussing and planning the murders. A detective who was working on the case contacted Assistant State's Attorney Michael Knick for his assistance in the matter.
[¶6] Knick reviewed the State's file on the sexual assault case. The file indicated that defendant was represented by the public defender's office. Knick also reviewed the documents that Bryant had provided to the police. One of those documents, an inmate request form, indicated that in the weapons case, Bryant was represented by attorney Anthony Tomkiewicz, the same attorney that defendant was planning to retain in the sexual assault case. Knick contacted Tomkiewicz and asked him to come to his office to discuss Tomkiewicz's representation of Bryant.
[¶7] Tomkiewicz met with Knick later that day. Knick informed Tomkiewicz of the situation and told Tomkiewicz that Bryant wanted to wear a wire to obtain incriminating evidence against defendant. Knick did not know at the time that defendant had spoken to Tomkiewicz about possibly retaining Tomkiewicz as his attorney in the sexual assault case. When Tomkiewicz learned that defendant was the intended target of the wire, he told Knick that he had met with defendant about possible representation in the sexual assault case, that defendant was planning to retain him, but that defendant had not done so yet. Tomkiewicz told Knick further that based on the new information, he was not going to take defendant's case and that he would have his office contact defendant's father and tell him not to bring in the retainer. Tomkiewicz stated that Bryant had applied for a furlough so that he could see his dying mother and that the matter would be up in court the following day. Knick informed Tomkiewicz that the State would not object to Bryant's furlough request and that Bryant could be fitted with a wire prior to going back into the jail. Knick instructed Tomkiewicz to speak to Bryant about wearing the wire and told Tomkiewicz that the State would obtain a court-authorized overhear while Bryant's case was in court on his request for furlough.
[¶8] The following day, Knick met with Tomkiewicz at the courthouse and told Tomkiewicz to talk to Bryant to make sure
that Bryant was still willing to cooperate before they went before the judge with the eavesdrop request. Tomkiewicz did so, Bryant agreed to wear the wire, and the State obtained the court-authorized overhear. In court, the State did not object to Bryant's furlough request. Bryant was released on furlough and when he returned, he was fitted with a wire. After going back to the jail, Bryant obtained incriminating ...