People v. Manning
State: Illinois
Court: Supreme Court
Docket No: 81393
People v. Manning, No. 81393 (4/16/98)
Docket No. 81393--Agenda 5--November 1997.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. STEVEN
MANNING, Appellant.
Filed April 16, 1998.
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, sec. 4(b); 134 Ill. 2d Rs. 603, 609(a). We reverse
defendant's convictions and remand for a new trial.
BACKGROUND
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 truck 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 and 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 defendant 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 June 1992, and he
was paroled in July 1992 and placed in the Federal Witness Protection Program.
In late 1991, Tyrakowski was arrested for his federal drug offense. As
previously discussed, he was with the victim on the day that he disappeared.
However, Tyrakowski did not then go to the authorities because he had an
outstanding indictment against him and he did not want to be arrested. In
December 1991, Tyrakowski testified before the grand jury regarding this case.
On February 20, 1992, defendant was indicted on three counts of murder, i.e.,
intentional, knowing, and felony murder (Ill. Rev. Stat. 1989, ch. 38, pars. 9--
1(a)(1) through (a)(3)), and a fourth count of armed robbery (Ill. Rev. Stat. 1989,
ch. 38, par. 18--2(a)). Defendant was also indicted on a fifth count of concealment
of homicidal death (Ill. Rev. Stat. 1989, ch. 38, par. 9--3.1(a)), on which the State
entered a nolle prosequi prior to trial.
The defense case, as presented in the opening statement of defendant's trial
counsel, was essentially that the State failed to prove defendant guilty of the
charged offenses beyond a reasonable doubt. The defense also asserted that the true
murderer was Gary Engle, who had ties to both defendant and the victim. The
defense presented several witnesses in support of its theory. At the close of the
evidence, the jury returned two general verdicts of guilty, one each for first degree
murder and armed robbery.
Defendant waived a sentencing jury prior to trial and again after his conviction.
The trial judge found the presence of a statutory aggravating factor: the murder was
committed in the course of a felony, i.e., armed robbery. See Ill. Rev. Stat. 1989,
ch. 38, par. 9--1(b). Thus, the trial judge concluded that defendant was eligible for
the death penalty. At the close of the sentencing hearing, the trial judge found that
there were no mitigating circumstances sufficient to preclude imposition of the
death penalty. The trial judge accordingly sentenced defendant to death on the first
degree murder conviction. The trial judge also sentenced defendant to a concurrent
30-year prison term on the armed robbery conviction.
Defendant appeals. Additional pertinent facts will be discussed in the context
of the issues raised on appeal.
DISCUSSION
Defendant contends (1) the trial court should have suppressed his incriminating
statements to Dye; (2) the evidence was insufficient to prove him guilty beyond a
reasonable doubt; (3) the trial court erroneously admitted into evidence the record-
ings of himself and Dye, other-crimes evidence, and hearsay testimony from the
victim's wife. Defendant also contends (4) he received ineffective assistance of
counsel when trial counsel elicited hearsay testimony from the victim's wife, elicit-
ed testimony that defendant was involved in another murder, failed to object to
hearsay testimony from Tyrakowski, and failed to investigate and present mitigation
evidence at the death penalty hearing. Defendant contends (5) his sentencing jury
waiver was not knowing intelligent and voluntary. Also, (6) defendant raises two
constitutional challenges to the Illinois death penalty statute.
I. Suppression of Incriminating Statements
Defendant denies that he ever made incriminating statements to Dye regarding
the Pellegrino murder. However, defendant alternatively contends that the trial
court should have granted his motion to suppress them. See People v. Norfleet, 29
Ill. 2d 287 (1963). Defendant raises two issues: (1) the statements were obtained
without giving him the Miranda warnings (see Miranda v. Arizona, 384 U.S. 436,
16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966)), and (2) the statements were coerced in
violation of the due process clause of the fourteenth amendment.
Miranda
Defendant argues that Dye was required to give him the Miranda warnings
prior to speaking with him. In Miranda, the United States Supreme Court "held that
the Fifth Amendment privilege against self-incrimination prohibits admitting
statements given by a suspect during `custodial interrogation' without a prior
warning." Illinois v. Perkins, 496 U.S. 292, 296, 110 L. Ed. 2d 243, 250, 110 S.
Ct. 2394, 2397 (1990).
The Perkins Court explained that the Miranda warnings were meant to preserve
the fifth amendment privilege against self-incrimination during incommunicado
interrogation of individuals in a police-dominated atmosphere. Courts view that
atmosphere as generating inherently compelling pressures that work to undermine
the individual's will to resist and to compel the person to speak where the person
would not otherwise do so freely. Perkins, 496 U.S. at 296, 110 L. Ed. 2d at 250,
110 S. Ct. at 2397.
However, Miranda is not implicated in conversations between suspects and
undercover agents. The essential ingredients of a police-dominated atmosphere and
compulsion are not present when a prisoner speaks freely to an undercover agent.
Ploys to mislead a suspect or lull the suspect into a false sense of security--that do
not rise to the level of compulsion or coercion to speak--are not within Miranda's
concerns. Perkins, 496 U.S. at 296-97, 110 L. Ed. 2d at 251, 110 S. Ct. at 2397.
Defendant attempts to distinguish this case from Perkins. Defendant argues that,
unlike Perkins, defendant knew that Dye was an informant, "who, as a result, had
control over [defendant's] fate." Defendant "believed that he had to talk to Dye for
his own survival, to remain in a relatively safe tier in the jail, to benefit from
Dye's promised help, and to try to be on sufficiently good terms with Dye that Dye
wouldn't inform on him." Defendant argues that being placed with a known
informant, who was assigned to gather incriminating information, where the
informant and his handlers knew that the informant would likely elicit incriminat-
ing responses from defendant, "was the functional equivalent of interrogation."
We note the State's claim that defendant waived this issue for review. The State
contends that defendant's motion to suppress did not include the foregoing
allegations. However, our review of the record persuades us that defendant
adequately preserved this issue for review.
Defendant's own testimony at the hearing on the motion to suppress belies his
argument. True, defendant testified that he knew that Dye was an informant, and
for that reason feared what Dye could cause to be done to him in jail. However,
defendant also testified that he had been a police officer and was a convict, and
that he had cooperated with the State's Attorney's office and informed for the FBI.
Defendant characterized himself as "pretty seasoned to what goes on in law
enforcement," and "pretty well aware of jailhouse informants and how they
operate."
Defendant testified that he could have confronted Dye and told Dye to stay
away from him, or he could have "played along and jerked [Dye] around."
Defendant chose the latter approach. The incriminating statements to Dye were
"nothing but empty jailhouse bravado," or "puffing." Although defendant could
have remained silent around Dye at any time, defendant instead chose to speak to
Dye. Defendant thus voluntarily accepted the risk that Dye would reveal the
statement; defendant spoke at his own peril. See Perkins, 496 U.S. at 298, 110 L.
Ed. 2d at 252, 110 S. Ct. at 2398; People v. Johnson, 197 Ill. App. 3d 762, 765-66
(1990).
Voluntariness--Due Process Clause
Defendant also argues that his incriminating statements to Dye were involuntary
in violation of the due process clause of the fourteenth amendment. Pursuant to the
due process test, known as the "voluntariness requirement," " `certain interrogation
techniques, either in isolation or as applied to the unique characteristics of a
particular suspect, are so offensive to a civilized system of justice that they must
be condemned.' " People v. Easley, 148 Ill. 2d 281, 314 (1992), quoting Miller v.
Fenton, 474 U.S. 104, 109, 88 L. Ed. 2d 405, 410, 106 S. Ct. 445, 449 (1985);
People v. Mays, 176 Ill. App. 3d 1027, 1034 (1988).
In Colorado v. Connelly, 479 U.S. 157, 93 L. Ed. 2d 473, 107 S. Ct. 515
(1986), the United States Supreme Court discussed the constitutional voluntariness
of a statement made under circumstances not requiring Miranda warnings. The
Court held that coercive police activity is a necessary predicate to the finding that
a statement is not "voluntary" within the meaning of the due process clause. While
mental condition is relevant to an individual's susceptibility to police coercion, the
mere examination of the declarant's state of mind can never conclude the due
process inquiry. A voluntariness analysis under the due process clause must focus
on the crucial element of police overreaching. Easley, 148 Ill. 2d at 312-13; Mays,
176 Ill. App. 3d at 1034-35 (both cases discussing Connelly).
Thus, in the present case, the constitutional voluntariness of defendant's
statements depends on the absence of police overreaching. Our inquiry is, therefore,
confined to an analysis of Dye's conduct and whether that conduct was causally
related to defendant's confession. We must decide whether, under the totality of the
circumstances, Dye obtained defendant's statements in a manner that comports with
due process. See Easley, 148 Ill. 2d at 312.
The State has the burden of establishing the voluntariness of a defendant's
confession by a preponderance of the evidence. Also, the trial court's findings on
the question of the voluntariness of a confession will not be disturbed on review
unless they are against the manifest weight of the evidence. People v. Redd, 135
Ill. 2d 252, 292-93 (1990).
The trial judge found as follows. Dye did not physically or mentally coerce
defendant. Dye did not make any material misrepresentation to defendant, except
that Dye was an informant, which defendant already knew. Also, defendant was
extremely intelligent, well-oriented, and experienced based on his former roles of
police officer and informant. Our review of the record does not reveal any evidence
that Dye ever threatened defendant or promised him a benefit to obtain his
incriminating statements. Also, the conversations between Dye and defendant were
not lengthy, and defendant was always free to walk away from Dye, or at least stop
talking to him.
For an incriminating statement to be involuntary under the due process clause,
the threats, promises, misinformation and the like must emanate from the police.
True, defendant testified that he feared what Dye could cause to be done to him in
jail. However, the only reason to suppress a confession on federal constitutional
grounds is coercion by a public officer. In this context, "[t]he Constitution has not
yet been interpreted to protect people against themselves." Johnson v. Trigg, 28
F.3d 639, 642 (7th Cir. 1994). We cannot say that the trial court's findings were
against the manifest weight of the evidence.
II. Sufficiency of the Evidence
Defendant next contends that the evidence was insufficient to prove him guilty
beyond a reasonable doubt. Where a criminal conviction is challenged based on
insufficient evidence, a reviewing court, considering all of the evidence in the light
most favorable to the prosecution, must determine whether any rational fact finder
could have found beyond a reasonable doubt the essential elements of the crime.
A criminal conviction will not be set aside unless the evidence is so improbable or
unsatisfactory as to create a reasonable doubt of the defendant's guilt. People v.
Eyler, 133 Ill. 2d 173, 191 (1989).
Defendant views the State's case as depending on the testimony of Dye, whom
defendant characterizes as a "jailhouse informant" and an "experienced liar."
Defendant argues that Dye's "uncorroborated testimony should never be the basis
for any conviction. Jailhouse informants are motivated by the desire to help
themselves and are notoriously dishonest and unreliable witnesses." According to
defendant, without Dye's testimony, the remainder of the State's case is testimony
that the victim was going to meet defendant on the day the victim disappeared, and
that the bullets found in defendant's storage locker were the same caliber of the
fatal bullet, but had a different metal composition. Defendant argues that this
evidence, taken as a whole, fails to prove him guilty beyond a reasonable doubt.
It is not the function of a reviewing court to retry a defendant when considering
a challenge to the sufficiency of the evidence. Rather, it is the function of the jury
to assess the credibility of the witnesses, the weight to be given their testimony,
and the inferences to be drawn from the evidence. People v. Tye, 141 Ill. 2d 1, 13
(1990). Specifically, it is quite established that the credibility of a government
informant, as with any other witness, is a question for the jury. See, e.g., United
States v. Trujillo, 959 F.2d 1377, 1384-85 (7th Cir. 1992); United States v.
Molinaro, 877 F.2d 1341, 1347 (7th Cir. 1989); People v. Irby, 237 Ill. App. 3d
38, 58-59 (1992).
The jury was aware of the factors that would allow it to adequately judge the
credibility of Dye. Thus, we cannot substitute our judgment for that of the jury. See
People v. Carter, 168 Ill. App. 3d 237, 243-44 (1988). Regarding defendant's
insinuation that someone else murdered the victim, we note that speculation that
another person might have committed the offense does not necessarily raise a
reasonable doubt of the guilt of the accused. People v. Herrett, 137 Ill. 2d 195, 206
(1990).
We have reviewed the entire record in the light most favorable to the
prosecution. We note that the evidence against defendant was not ample or
overwhelming. However, we cannot say that the evidence was so improbable or
unsatisfactory that no rational fact finder could have found defendant guilty beyond
a reasonable doubt of first degree murder and armed robbery.
III. Erroneously Admitted Evidence
Defendant next raises several evidentiary issues. The admissibility of evidence
at trial is a matter within the sound discretion of the trial court, and its ruling may
not be reversed absent a clear abuse of discretion. People v. Illgen, 145 Ill. 2d 353,
364 (1991).
Tape Recordings
Defendant claims that the trial court erred by admitting into evidence the tape-
recorded conversations between himself and Dye. Six hours of conversations
between Dye and defendant were recorded and subsequently transcribed. The jurors
were given excerpts from the transcripts and audio equipment. However, the jury
did not hear the complete and unabridged recordings. The record on appeal does
not include either the unabridged recordings or a transcript. Rather, during Dye's
testimony, the State questioned Dye as to particular points in the recording, which
the jury heard and read. The jury was instructed to consider only those portions of
the excerpts to which they were directed.
Defendant notes that during those six hours, Dye testified that defendant twice
confessed to murdering the victim. However, the record shows that inaudible gaps
in the recording occur at the times when Dye testified that defendant confessed.
Describing the recordings as incomplete, unreliable, and prejudicial, defendant
contends that the recordings are inadmissible and the trial court abused its
discretion in admitting them into evidence.
A partially inaudible sound recording is admissible unless the inaudible portions
are so substantial as to render the recording untrustworthy as a whole. The
admission of a recording that is partially inaudible, or that reproduces only part of
a statement or conversation, is a matter within the trial court's discretion. People
v. Dougherty, 160 Ill. App. 3d 870, 876 (1987); accord United States v. Robinson,
956 F.2d 1388, 1395 (7th Cir. 1992); 29A Am. Jur. 2d Evidence sec. 1238 (1994).
In the present case, Dye testified that one inaudible gap was caused by his
bending over at the waist, blocking the microphones, and the other was caused by
a recorder malfunction. The trial court correctly held that the two inaudible gaps
in the recording were relevant only to the weight of the evidence and not its
admissibility. See Robinson, 956 F.2d at 1395.
True, inaudible gaps in the recording occurred when Dye testified that
defendant confessed. However, despite their significance, they remain only two
inaudible gaps out of the total of what the jury heard. We cannot say that the two
inaudible gaps challenged here are so substantial as to render the recordings
untrustworthy as a whole.
Evidence of Other Crimes
Defendant next contends that the trial court abused its discretion by admitting
into evidence the conversations between himself and Dye where they discussed
how each could help the other evade conviction in their pending cases. Specifically,
defendant asked Dye if he could provide an alibi for defendant in his case; in
return, defendant would kill or arrange to have killed the main witness in Dye's
case.
Prior to trial, defendant moved to preclude the introduction of this evidence.
The State argued that the conversations were admissible: (1) to put defendant's
confessions into context, i.e., to explain why defendant would confess to the
Pellegrino murder to Dye; and (2) because the detailed nature of the plan of mutual
assistance between defendant and Dye shows defendant's ability to reason and
communicate, refuting the defense theory that defendant was merely bragging while
under the influence of psychotropic drugs. The trial court ruled that the State would
be precluded from questioning Dye about those conversations during his direct
examination; however, defendant's cross-examination of Dye might cause the court
to reconsider its ruling.
During his opening statement, defense counsel described defendant as a
braggart who took psychotropic drugs. Prior to Dye's testimony, the State sought
the admission of the conversations, arguing that the conversations were now
necessary to rebut defense counsel's comments. The trial court ruled that the State
could elicit the conversation.
The principles are quite established. Evidence of crimes for which a defendant
is not on trial is inadmissible if relevant merely to establish the defendant's
disposition or propensity to commit crime. People v. Thingvold, 145 Ill. 2d 441,
452 (1991); Illgen, 145 Ill. 2d at 364. Evidence of other crimes is objectionable not
because it has little probative value, but rather because it has too much. People v.
Lucas, 151 Ill. 2d 461, 485 (1992). Such evidence overpersuades a jury, which
might convict the defendant only because it feels that defendant is a bad person
who deserves punishment. Thingvold, 145 Ill. 2d at 441. The law distrusts the
inference that because a person has committed other crimes, he or she is more
likely to have committed the current crime. "And so, as a matter of policy, where
the testimony has no value beyond that inference, it is excluded." People v.
Lehman, 5 Ill. 2d 337, 342 (1955).
However, evidence of the commission of other crimes committed by the
defendant is admissible when such evidence is relevant to establish any material
question other than the defendant's propensity to commit a crime. Thingvold, 145
Ill. 2d at 452. When evidence of other crimes is offered, the trial judge must weigh
its probative value against its prejudicial effect, and may exclude the evidence if
its prejudicial effect substantially outweighs its probative value. Illgen, 145 Ill. 2d
at 365. We note that "[t]he erroneous admission of evidence of other crimes carries
a high risk of prejudice and ordinarily calls for reversal." People v. Lindgren, 79
Ill. 2d 129, 140 (1980).
Although the recordings as a whole are not untrustworthy, we conclude that the
conversations between defendant and Dye regarding their plan of mutual assistance
are inadmissible. Their probative value is clearly outweighed by their prejudicial
effect.
The State argued that the conversations were necessary to rebut remarks in
defense counsel's opening statement that defendant was a braggart taking
psychotropic drugs. The State argued that the detailed nature of the plan of mutual
assistance shows defendant's ability to reason and communicate. The trial judge did
not make any findings for the record as to the prejudicial effect of the challenged
conversations.
We conclude that the challenged conversations have little probative value. Dye
recorded six hours of conversations. Other conversations between defendant and
Dye can show that defendant can reason and communicate. Other conversations can
also establish their relationship, to explain why defendant would confess to Dye.
On the other hand, the challenged conversations are very prejudicial. As
previously noted, the evidence in the State's case is minimally sufficient. The
challenged conversations show that defendant is a bad person who has a propensity
to commit crime. See, e.g., People v. Cage, 34 Ill. 2d 530 (1966); People v.
Radovick, 275 Ill. App. 3d 809 (1995); People v. Triplett, 99 Ill. App. 3d 1077
(1981). We hold that the trial court erred in admitting this highly prejudicial
evidence. Further, based on the minimal sufficiency of the evidence, we cannot say
that retrial without this evidence would produce the same result. Thus, we cannot
deem the erroneous admission of this evidence to have been harmless. See People
v. Moore, 171 Ill. 2d 74, 98 (1996); People v. Parmly, 117 Ill. 2d 386, 396 (1987).
Hearsay Testimony from the Victim's Wife
Defendant contends the trial court abused its discretion also by admitting into
evidence the following hearsay statement from the victim's wife, Joyce Pellegrino:
"Jimmy had told me the last time I saw him that if he turns up dead,
that I should go to the FBI a [sic] Agent Pecoraro and tell him Steve
Manning killed him."
Prior to trial, the court ruled that the State could elicit from Joyce Pellegrino
only that the victim told her that he was going to meet defendant. However, the
State could not elicit from her the victim's out-of-court statement that if he were
killed she should tell the FBI that defendant killed him.
At trial, Pellegrino testified on direct examination only that the victim told her
that he was going to meet defendant. On cross-examination, defense counsel asked
her what she told Agent Pecoraro about her conversation with the victim.
Throughout her cross-examination, she did not mention the victim's out-of-court
statement. At a sidebar prior to its redirect examination, the State argued that since
defense counsel questioned her regarding what she told the FBI, then the State
could ask her exactly what the victim said. The trial court ruled that since the
defense brought up the FBI agent, then the State could elicit the testimony.
On appeal, the State concedes that the victim's out-of-court statement was
barred as prejudicial inadmissible hearsay. However, the State argues that defense
counsel's cross-examination of the victim's wife "opened the door" to the
previously barred evidence.
The State invokes the doctrine of "curative admissibility." If A opens up an
issue and B will be prejudiced unless B can introduce contradictory or explanatory
evidence, then B will be permitted to introduce such evidence, even though it might
otherwise be improper. People v. Lewis, 52 Ill. App. 3d 477, 485 (1977); People
v. Wilbert, 15 Ill. App. 3d 974, 984-87 (1973); accord 1 R. Steigmann, Illinois
Evidence Manual sec. 4:04 (3d ed. 1995). Specifically, in a criminal case, where
the door to a particular subject is opened by defense counsel on cross-examination,
the State may, on redirect, question the witness to clarify or explain the matters
brought out during, or to remove or correct unfavorable inferences left by, the
previous cross-examination. People v. Thompkins, 121 Ill. 2d 401, 444 (1988);
Lewis, 52 Ill. App. 3d at 485-86.
However, the doctrine of curative admissibility is not a panacea; it does not
permit a party to introduce inadmissible evidence merely because the opponent
brought out some evidence on the same subject. People v. Higgins, 71 Ill. App. 3d
912, 931 (1979). The rule is merely protective and goes only as far as is necessary
to shield a party from adverse inferences. Saputo v. Fatla, 25 Ill. App. 3d 775, 783
(1975). Further:
" `[T]he doctrine of curative admissibility *** is limited in scope and
design to those situations where its invocation is deemed necessary to
eradicate undue prejudicial inferences which might otherwise ensue from
the introduction of the original evidence. The decision of whether to admit
curative evidence lies within the sound judicial discretion of the trial judge.'
(Emphasis in original.)" People v. Chambers, 179 Ill. App. 3d 565, 581
(1989), quoting Higgins, 71 Ill. App. 3d at 931.
The record shows that, at trial, neither the prosecution nor the trial court
indicated how defense counsel's cross-examination of the victim's wife prejudiced
the State. On appeal, the State now argues that defense counsel's cross-examination
of the victim's wife left the jury with the misleading impression that she never told
the FBI anything about defendant. Referring to defense counsel's opening
statement, the State now argues that this cross-examination fits with the defense
theory of the case: that defendant had nothing to do with the victim's murder; but
rather it was committed by another; and, as proof, even the victim's wife does not
implicate defendant.
After carefully reviewing the record, we conclude that the State was not unduly
prejudiced by defense counsel's cross-examination of Joyce Pellegrino. Defense
counsel's cross-examination of the victim's wife actually brought out much
information about defendant and the victim--with the exception that the victim had
named defendant as his murderer. Defense counsel's cross-examination did not
mislead the jury any more than the trial judge's in limine order barring the hearsay
statement. Thus, the State was not thereby unduly prejudiced. Therefore, defense
counsel did not "open the door" to the victim's out-of-court statement and,
accordingly, it remained inadmissible. See Chambers, 179 Ill. App. 3d at 580-82.
We note, sua sponte, that under the "completeness doctrine," which provides
that where a witness relates a conversation the opponent may bring out all of the
conversation on cross-examination (People v. Weaver, 92 Ill. 2d 545, 556 (1982)),
prejudice is nonetheless required. People v. Olinger, 112 Ill. 2d 324, 337 (1986).
We hold that the trial court erred in admitting this prejudicial evidence. Further, as
with the evidence of other crimes, we cannot deem the erroneous admission of this
evidence to have been harmless.
Based on the erroneous admission of other-crimes evidence and the hearsay
testimony of the victim's wife, defendant's conviction must be reversed and the
cause remanded for a new trial. We note our previous finding that the evidence was
sufficient to prove defendant guilty beyond a reasonable doubt. We adhere to that
finding even with the above-mentioned evidence excluded. This finding removes
the risk of subjecting defendant to double jeopardy. See People v. Taylor, 76 Ill.
2d 289, 309-10 (1979). Due to our disposition of this cause, we need not address
defendant's remaining contentions.
CONCLUSION
For the foregoing reasons, the judgment of the circuit court of Cook County is
reversed, and the cause is remanded to that court for a new trial consistent with this
opinion.
Reversed and remanded.
JUSTICE HEIPLE, concurring in part and dissenting in part:
The majority excludes evidence of a murder scheme between defendant and
jailhouse informant Thomas Dye, whereby defendant would kill a witness in Dye's
case in exchange for an alibi in his own. The majority holds that this evidence is
more prejudicial than probative. I disagree. Evidence is excluded only if its
prejudicial effect substantially outweighs its probative value. People v. Illgen, 145
Ill. 2d 353, 365 (1991). The prejudicial effect of the evidence of the plan did not
substantially outweigh its probative value; in fact, this evidence is highly probative.
The conversation involving the scheme was admitted at trial to place defendant's
confession in context and to rebut defendant's contention that he was unable to
reason and communicate coherently because of medication he was taking. The
conspiracy between defendant and Dye is highly probative in establishing these two
points, and although other conversations between defendant and the informant were
admitted, none were as probative as the ones in which defendant and Dye formed
their plan. First, no other exchange explains why defendant confessed to Dye: it
was to assuage Dye's doubts that defendant was capable of performing his promise
to murder the witness in Dye's case. Without this information, defendant's reason
for confessing, and thus the confession itself, remains mysterious and suspect.
Second, this evidence was crucial to rebut defendant's argument that his reasoning
was altered by medication taken while in prison. Even though several hours of
other conversations between defendant and Dye were admitted, no other discussions
so fully establish that defendant was coherent and able to reason as the ones where
defendant and Dye concocted their detailed scheme. This evidence demonstrates
that defendant's conversation was not merely drug-induced bravado; rather, it was
careful, calculated and indicative of someone unaffected by medication.
The admissibility of evidence at trial is a matter within the sound discretion of
the trial court and will not be overturned absent an abuse of that discretion. Illgen,
145 Ill. 2d at 364. Such abuse of discretion will be found only where the trial
court's decision was arbitrary, fanciful, or one that no reasonable person would
make. Illgen, 145 Ill. 2d at 364. That standard has not been met here, as it is clear
that a reasonable person could find the disputed evidence more probative than
prejudicial. The trial court did not abuse its discretion when it admitted the
evidence, and the evidence should not be excluded now.
I agree, however, that the evidence concerning the hearsay testimony of the
victim's wife should be excluded, and that to allow such evidence was not harmless
error. Therefore, defendant should be granted a new trial, but at this new trial
evidence regarding his conspiracy with Dye should be once again be admitted.
JUSTICES MILLER and McMORROW join in this partial concurrence
and partial dissent.
Docket No. 81393--Agenda 5--November 1997.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. STEVEN
MANNING, Appellant.
Filed April 16, 1998.
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, sec. 4(b); 134 Ill. 2d Rs. 603, 609(a). We reverse
defendant's convictions and remand for a new trial.
BACKGROUND
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 truck 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 and 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 defendant 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 June 1992, and he
was paroled in July 1992 and placed in the Federal Witness Protection Program.
In late 1991, Tyrakowski was arrested for his federal drug offense. As
previously discussed, he was with the victim on the day that he disappeared.
However, Tyrakowski did not then go to the authorities because he had an
outstanding indictment against him and he did not want to be arrested. In
December 1991, Tyrakowski testified before the grand jury regarding this case.
On February 20, 1992, defendant was indicted on three counts of murder, i.e.,
intentional, knowing, and felony murder (Ill. Rev. Stat. 1989, ch. 38, pars. 9--
1(a)(1) through (a)(3)), and a fourth count of armed robbery (Ill. Rev. Stat. 1989,
ch. 38, par. 18--2(a)). Defendant was also indicted on a fifth count of concealment
of homicidal death (Ill. Rev. Stat. 1989, ch. 38, par. 9--3.1(a)), on which the State
entered a nolle prosequi prior to trial.
The defense case, as presented in the opening statement of defendant's trial
counsel, was essentially that the State failed to prove defendant guilty of the
charged offenses beyond a reasonable doubt. The defense also asserted that the true
murderer was Gary Engle, who had ties to both defendant and the victim. The
defense presented several witnesses in support of its theory. At the close of the
evidence, the jury returned two general verdicts of guilty, one each for first degree
murder and armed robbery.
Defendant waived a sentencing jury prior to trial and again after his conviction.
The trial judge found the presence of a statutory aggravating factor: the murder was
committed in the course of a felony, i.e., armed robbery. See Ill. Rev. Stat. 1989,
ch. 38, par. 9--1(b). Thus, the trial judge concluded that defendant was eligible for
the death penalty. At the close of the sentencing hearing, the trial judge found that
there were no mitigating circumstances sufficient to preclude imposition of the
death penalty. The trial judge accordingly sentenced defendant to death on the first
degree murder conviction. The trial judge also sentenced defendant to a concurrent
30-year prison term on the armed robbery conviction.
Defendant appeals. Additional pertinent facts will be discussed in the context
of the issues raised on appeal.
DISCUSSION
Defendant contends (1) the trial court should have suppressed his incriminating
statements to Dye; (2) the evidence was insufficient to prove him guilty beyond a
reasonable doubt; (3) the trial court erroneously admitted into evidence the record-
ings of himself and Dye, other-crimes evidence, and hearsay testimony from the
victim's wife. Defendant also contends (4) he received ineffective assistance of
counsel when trial counsel elicited hearsay testimony from the victim's wife, elicit-
ed testimony that defendant was involved in another murder, failed to object to
hearsay testimony from Tyrakowski, and failed to investigate and present mitigation
evidence at the death penalty hearing. Defendant contends (5) his sentencing jury
waiver was not knowing intelligent and voluntary. Also, (6) defendant raises two
constitutional challenges to the Illinois death penalty statute.
I. Suppression of Incriminating Statements
Defendant denies that he ever made incriminating statements to Dye regarding
the Pellegrino murder. However, defendant alternatively contends that the trial
court should have granted his motion to suppress them. See People v. Norfleet, 29
Ill. 2d 287 (1963). Defendant raises two issues: (1) the statements were obtained
without giving him the Miranda warnings (see Miranda v. Arizona, 384 U.S. 436,
16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966)), and (2) the statements were coerced in
violation of the due process clause of the fourteenth amendment.
Miranda
Defendant argues that Dye was required to give him the Miranda warnings
prior to speaking with him. In Miranda, the United States Supreme Court "held that
the Fifth Amendment privilege against self-incrimination prohibits admitting
statements given by a suspect during `custodial interrogation' without a prior
warning." Illinois v. Perkins, 496 U.S. 292, 296, 110 L. Ed. 2d 243, 250, 110 S.
Ct. 2394, 2397 (1990).
The Perkins Court explained that the Miranda warnings were meant to preserve
the fifth amendment privilege against self-incrimination during incommunicado
interrogation of individuals in a police-dominated atmosphere. Courts view that
atmosphere as generating inherently compelling pressures that work to undermine
the individual's will to resist and to compel the person to speak where the person
would not otherwise do so freely. Perkins, 496 U.S. at 296, 110 L. Ed. 2d at 250,
110 S. Ct. at 2397.
However, Miranda is not implicated in conversations between suspects and
undercover agents. The essential ingredients of a police-dominated atmosphere and
compulsion are not present when a prisoner speaks freely to an undercover agent.
Ploys to mislead a suspect or lull the suspect into a false sense of security--that do
not rise to the level of compulsion or coercion to speak--are not within Miranda's
concerns. Perkins, 496 U.S. at 296-97, 110 L. Ed. 2d at 251, 110 S. Ct. at 2397.
Defendant attempts to distinguish this case from Perkins. Defendant argues that,
unlike Perkins, defendant knew that Dye was an informant, "who, as a result, had
control over [defendant's] fate." Defendant "believed that he had to talk to Dye for
his own survival, to remain in a relatively safe tier in the jail, to benefit from
Dye's promised help, and to try to be on sufficiently good terms with Dye that Dye
wouldn't inform on him." Defendant argues that being placed with a known
informant, who was assigned to gather incriminating information, where the
informant and his handlers knew that the informant would likely elicit incriminat-
ing responses from defendant, "was the functional equivalent of interrogation."
We note the State's claim that defendant waived this issue for review. The State
contends that defendant's motion to suppress did not include the foregoing
allegations. However, our review of the record persuades us that defendant
adequately preserved this issue for review.
Defendant's own testimony at the hearing on the motion to suppress belies his
argument. True, defendant testified that he knew that Dye was an informant, and
for that reason feared what Dye could cause to be done to him in jail. However,
defendant also testified that he had been a police officer and was a convict, and
that he had cooperated with the State's Attorney's office and informed for the FBI.
Defendant characterized himself as "pretty seasoned to what goes on in law
enforcement," and "pretty well aware of jailhouse informants and how they
operate."
Defendant testified that he could have confronted Dye and told Dye to stay
away from him, or he could have "played along and jerked [Dye] around."
Defendant chose the latter approach. The incriminating statements to Dye were
"nothing but empty jailhouse bravado," or "puffing." Although defendant could
have remained silent around Dye at any time, defendant instead chose to speak to
Dye. Defendant thus voluntarily accepted the risk that Dye would reveal the
statement; defendant spoke at his own peril. See Perkins, 496 U.S. at 298, 110 L.
Ed. 2d at 252, 110 S. Ct. at 2398; People v. Johnson, 197 Ill. App. 3d 762, 765-66
(1990).
Voluntariness--Due Process Clause
Defendant also argues that his incriminating statements to Dye were involuntary
in violation of the due process clause of the fourteenth amendment. Pursuant to the
due process test, known as the "voluntariness requirement," " `certain interrogation
techniques, either in isolation or as applied to the unique characteristics of a
particular suspect, are so offensive to a civilized system of justice that they must
be condemned.' " People v. Easley, 148 Ill. 2d 281, 314 (1992), quoting Miller v.
Fenton, 474 U.S. 104, 109, 88 L. Ed. 2d 405, 410, 106 S. Ct. 445, 449 (1985);
People v. Mays, 176 Ill. App. 3d 1027, 1034 (1988).
In Colorado v. Connelly, 479 U.S. 157, 93 L. Ed. 2d 473, 107 S. Ct. 515
(1986), the United States Supreme Court discussed the constitutional voluntariness
of a statement made under circumstances not requiring Miranda warnings. The
Court held that coercive police activity is a necessary predicate to the finding that
a statement is not "voluntary" within the meaning of the due process clause. While
mental condition is relevant to an individual's susceptibility to police coercion, the
mere examination of the declarant's state of mind can never conclude the due
process inquiry. A voluntariness analysis under the due process clause must focus
on the crucial element of police overreaching. Easley, 148 Ill. 2d at 312-13; Mays,
176 Ill. App. 3d at 1034-35 (both cases discussing Connelly).
Thus, in the present case, the constitutional voluntariness of defendant's
statements depends on the absence of police overreaching. Our inquiry is, therefore,
confined to an analysis of Dye's conduct and whether that conduct was causally
related to defendant's confession. We must decide whether, under the totality of the
circumstances, Dye obtained defendant's statements in a manner that comports with
due process. See Easley, 148 Ill. 2d at 312.
The State has the burden of establishing the voluntariness of a defendant's
confession by a preponderance of the evidence. Also, the trial court's findings on
the question of the voluntariness of a confession will not be disturbed on review
unless they are against the manifest weight of the evidence. People v. Redd, 135
Ill. 2d 252, 292-93 (1990).
The trial judge found as follows. Dye did not physically or mentally coerce
defendant. Dye did not make any material misrepresentation to defendant, except
that Dye was an informant, which defendant already knew. Also, defendant was
extremely intelligent, well-oriented, and experienced based on his former roles of
police officer and informant. Our review of the record does not reveal any evidence
that Dye ever threatened defendant or promised him a benefit to obtain his
incriminating statements. Also, the conversations between Dye and defendant were
not lengthy, and defendant was always free to walk away from Dye, or at least stop
talking to him.
For an incriminating statement to be involuntary under the due process clause,
the threats, promises, misinformation and the like must emanate from the police.
True, defendant testified that he feared what Dye could cause to be done to him in
jail. However, the only reason to suppress a confession on federal constitutional
grounds is coercion by a public officer. In this context, "[t]he Constitution has not
yet been interpreted to protect people against themselves." Johnson v. Trigg, 28
F.3d 639, 642 (7th Cir. 1994). We cannot say that the trial court's findings were
against the manifest weight of the evidence.
II. Sufficiency of the Evidence
Defendant next contends that the evidence was insufficient to prove him guilty
beyond a reasonable doubt. Where a criminal conviction is challenged based on
insufficient evidence, a reviewing court, considering all of the evidence in the light
most favorable to the prosecution, must determine whether any rational fact finder
could have found beyond a reasonable doubt the essential elements of the crime.
A criminal conviction will not be set aside unless the evidence is so improbable or
unsatisfactory as to create a reasonable doubt of the defendant's guilt. People v.
Eyler, 133 Ill. 2d 173, 191 (1989).
Defendant views the State's case as depending on the testimony of Dye, whom
defendant characterizes as a "jailhouse informant" and an "experienced liar."
Defendant argues that Dye's "uncorroborated testimony should never be the basis
for any conviction. Jailhouse informants are motivated by the desire to help
themselves and are notoriously dishonest and unreliable witnesses." According to
defendant, without Dye's testimony, the remainder of the State's case is testimony
that the victim was going to meet defendant on the day the victim disappeared, and
that the bullets found in defendant's storage locker were the same caliber of the
fatal bullet, but had a different metal composition. Defendant argues that this
evidence, taken as a whole, fails to prove him guilty beyond a reasonable doubt.
It is not the function of a reviewing court to retry a defendant when considering
a challenge to the sufficiency of the evidence. Rather, it is the function of the jury
to assess the credibility of the witnesses, the weight to be given their testimony,
and the inferences to be drawn from the evidence. People v. Tye, 141 Ill. 2d 1, 13
(1990). Specifically, it is quite established that the credibility of a government
informant, as with any other witness, is a question for the jury. See, e.g., United
States v. Trujillo, 959 F.2d 1377, 1384-85 (7th Cir. 1992); United States v.
Molinaro, 877 F.2d 1341, 1347 (7th Cir. 1989); People v. Irby, 237 Ill. App. 3d
38, 58-59 (1992).
The jury was aware of the factors that would allow it to adequately judge the
credibility of Dye. Thus, we cannot substitute our judgment for that of the jury. See
People v. Carter, 168 Ill. App. 3d 237, 243-44 (1988). Regarding defendant's
insinuation that someone else murdered the victim, we note that speculation that
another person might have committed the offense does not necessarily raise a
reasonable doubt of the guilt of the accused. People v. Herrett, 137 Ill. 2d 195, 206
(1990).
We have reviewed the entire record in the light most favorable to the
prosecution. We note that the evidence against defendant was not ample or
overwhelming. However, we cannot say that the evidence was so improbable or
unsatisfactory that no rational fact finder could have found defendant guilty beyond
a reasonable doubt of first degree murder and armed robbery.
III. Erroneously Admitted Evidence
Defendant next raises several evidentiary issues. The admissibility of evidence
at trial is a matter within the sound discretion of the trial court, and its ruling may
not be reversed absent a clear abuse of discretion. People v. Illgen, 145 Ill. 2d 353,
364 (1991).
Tape Recordings
Defendant claims that the trial court erred by admitting into evidence the tape-
recorded conversations between himself and Dye. Six hours of conversations
between Dye and defendant were recorded and subsequently transcribed. The jurors
were given excerpts from the transcripts and audio equipment. However, the jury
did not hear the complete and unabridged recordings. The record on appeal does
not include either the unabridged recordings or a transcript. Rather, during Dye's
testimony, the State questioned Dye as to particular points in the recording, which
the jury heard and read. The jury was instructed to consider only those portions of
the excerpts to which they were directed.
Defendant notes that during those six hours, Dye testified that defendant twice
confessed to murdering the victim. However, the record shows that inaudible gaps
in the recording occur at the times when Dye testified that defendant confessed.
Describing the recordings as incomplete, unreliable, and prejudicial, defendant
contends that the recordings are inadmissible and the trial court abused its
discretion in admitting them into evidence.
A partially inaudible sound recording is admissible unless the inaudible portions
are so substantial as to render the recording untrustworthy as a whole. The
admission of a recording that is partially inaudible, or that reproduces only part of
a statement or conversation, is a matter within the trial court's discretion. People
v. Dougherty, 160 Ill. App. 3d 870, 876 (1987); accord United States v. Robinson,
956 F.2d 1388, 1395 (7th Cir. 1992); 29A Am. Jur. 2d Evidence sec. 1238 (1994).
In the present case, Dye testified that one inaudible gap was caused by his
bending over at the waist, blocking the microphones, and the other was caused by
a recorder malfunction. The trial court correctly held that the two inaudible gaps
in the recording were relevant only to the weight of the evidence and not its
admissibility. See Robinson, 956 F.2d at 1395.
True, inaudible gaps in the recording occurred when Dye testified that
defendant confessed. However, despite their significance, they remain only two
inaudible gaps out of the total of what the jury heard. We cannot say that the two
inaudible gaps challenged here are so substantial as to render the recordings
untrustworthy as a whole.
Evidence of Other Crimes
Defendant next contends that the trial court abused its discretion by admitting
into evidence the conversations between himself and Dye where they discussed
how each could help the other evade conviction in their pending cases. Specifically,
defendant asked Dye if he could provide an alibi for defendant in his case; in
return, defendant would kill or arrange to have killed the main witness in Dye's
case.
Prior to trial, defendant moved to preclude the introduction of this evidence.
The State argued that the conversations were admissible: (1) to put defendant's
confessions into context, i.e., to explain why defendant would confess to the
Pellegrino murder to Dye; and (2) because the detailed nature of the plan of mutual
assistance between defendant and Dye shows defendant's ability to reason and
communicate, refuting the defense theory that defendant was merely bragging while
under the influence of psychotropic drugs. The trial court ruled that the State would
be precluded from questioning Dye about those conversations during his direct
examination; however, defendant's cross-examination of Dye might cause the court
to reconsider its ruling.
During his opening statement, defense counsel described defendant as a
braggart who took psychotropic drugs. Prior to Dye's testimony, the State sought
the admission of the conversations, arguing that the conversations were now
necessary to rebut defense counsel's comments. The trial court ruled that the State
could elicit the conversation.
The principles are quite established. Evidence of crimes for which a defendant
is not on trial is inadmissible if relevant merely to establish the defendant's
disposition or propensity to commit crime. People v. Thingvold, 145 Ill. 2d 441,
452 (1991); Illgen, 145 Ill. 2d at 364. Evidence of other crimes is objectionable not
because it has little probative value, but rather because it has too much. People v.
Lucas, 151 Ill. 2d 461, 485 (1992). Such evidence overpersuades a jury, which
might convict the defendant only because it feels that defendant is a bad person
who deserves punishment. Thingvold, 145 Ill. 2d at 441. The law distrusts the
inference that because a person has committed other crimes, he or she is more
likely to have committed the current crime. "And so, as a matter of policy, where
the testimony has no value beyond that inference, it is excluded." People v.
Lehman, 5 Ill. 2d 337, 342 (1955).
However, evidence of the commission of other crimes committed by the
defendant is admissible when such evidence is relevant to establish any material
question other than the defendant's propensity to commit a crime. Thingvold, 145
Ill. 2d at 452. When evidence of other crimes is offered, the trial judge must weigh
its probative value against its prejudicial effect, and may exclude the evidence if
its prejudicial effect substantially outweighs its probative value. Illgen, 145 Ill. 2d
at 365. We note that "[t]he erroneous admission of evidence of other crimes carries
a high risk of prejudice and ordinarily calls for reversal." People v. Lindgren, 79
Ill. 2d 129, 140 (1980).
Although the recordings as a whole are not untrustworthy, we conclude that the
conversations between defendant and Dye regarding their plan of mutual assistance
are inadmissible. Their probative value is clearly outweighed by their prejudicial
effect.
The State argued that the conversations were necessary to rebut remarks in
defense counsel's opening statement that defendant was a braggart taking
psychotropic drugs. The State argued that the detailed nature of the plan of mutual
assistance shows defendant's ability to reason and communicate. The trial judge did
not make any findings for the record as to the prejudicial effect of the challenged
conversations.
We conclude that the challenged conversations have little probative value. Dye
recorded six hours of conversations. Other conversations between defendant and
Dye can show that defendant can reason and communicate. Other conversations can
also establish their relationship, to explain why defendant would confess to Dye.
On the other hand, the challenged conversations are very prejudicial. As
previously noted, the evidence in the State's case is minimally sufficient. The
challenged conversations show that defendant is a bad person who has a propensity
to commit crime. See, e.g., People v. Cage, 34 Ill. 2d 530 (1966); People v.
Radovick, 275 Ill. App. 3d 809 (1995); People v. Triplett, 99 Ill. App. 3d 1077
(1981). We hold that the trial court erred in admitting this highly prejudicial
evidence. Further, based on the minimal sufficiency of the evidence, we cannot say
that retrial without this evidence would produce the same result. Thus, we cannot
deem the erroneous admission of this evidence to have been harmless. See People
v. Moore, 171 Ill. 2d 74, 98 (1996); People v. Parmly, 117 Ill. 2d 386, 396 (1987).
Hearsay Testimony from the Victim's Wife
Defendant contends the trial court abused its discretion also by admitting into
evidence the following hearsay statement from the victim's wife, Joyce Pellegrino:
"Jimmy had told me the last time I saw him that if he turns up dead,
that I should go to the FBI a [sic] Agent Pecoraro and tell him Steve
Manning killed him."
Prior to trial, the court ruled that the State could elicit from Joyce Pellegrino
only that the victim told her that he was going to meet defendant. However, the
State could not elicit from her the victim's out-of-court statement that if he were
killed she should tell the FBI that defendant killed him.
At trial, Pellegrino testified on direct examination only that the victim told her
that he was going to meet defendant. On cross-examination, defense counsel asked
her what she told Agent Pecoraro about her conversation with the victim.
Throughout her cross-examination, she did not mention the victim's out-of-court
statement. At a sidebar prior to its redirect examination, the State argued that since
defense counsel questioned her regarding what she told the FBI, then the State
could ask her exactly what the victim said. The trial court ruled that since the
defense brought up the FBI agent, then the State could elicit the testimony.
On appeal, the State concedes that the victim's out-of-court statement was
barred as prejudicial inadmissible hearsay. However, the State argues that defense
counsel's cross-examination of the victim's wife "opened the door" to the
previously barred evidence.
The State invokes the doctrine of "curative admissibility." If A opens up an
issue and B will be prejudiced unless B can introduce contradictory or explanatory
evidence, then B will be permitted to introduce such evidence, even though it might
otherwise be improper. People v. Lewis, 52 Ill. App. 3d 477, 485 (1977); People
v. Wilbert, 15 Ill. App. 3d 974, 984-87 (1973); accord 1 R. Steigmann, Illinois
Evidence Manual sec. 4:04 (3d ed. 1995). Specifically, in a criminal case, where
the door to a particular subject is opened by defense counsel on cross-examination,
the State may, on redirect, question the witness to clarify or explain the matters
brought out during, or to remove or correct unfavorable inferences left by, the
previous cross-examination. People v. Thompkins, 121 Ill. 2d 401, 444 (1988);
Lewis, 52 Ill. App. 3d at 485-86.
However, the doctrine of curative admissibility is not a panacea; it does not
permit a party to introduce inadmissible evidence merely because the opponent
brought out some evidence on the same subject. People v. Higgins, 71 Ill. App. 3d
912, 931 (1979). The rule is merely protective and goes only as far as is necessary
to shield a party from adverse inferences. Saputo v. Fatla, 25 Ill. App. 3d 775, 783
(1975). Further:
" `[T]he doctrine of curative admissibility *** is limited in scope and
design to those situations where its invocation is deemed necessary to
eradicate undue prejudicial inferences which might otherwise ensue from
the introduction of the original evidence. The decision of whether to admit
curative evidence lies within the sound judicial discretion of the trial judge.'
(Emphasis in original.)" People v. Chambers, 179 Ill. App. 3d 565, 581
(1989), quoting Higgins, 71 Ill. App. 3d at 931.
The record shows that, at trial, neither the prosecution nor the trial court
indicated how defense counsel's cross-examination of the victim's wife prejudiced
the State. On appeal, the State now argues that defense counsel's cross-examination
of the victim's wife left the jury with the misleading impression that she never told
the FBI anything about defendant. Referring to defense counsel's opening
statement, the State now argues that this cross-examination fits with the defense
theory of the case: that defendant had nothing to do with the victim's murder; but
rather it was committed by another; and, as proof, even the victim's wife does not
implicate defendant.
After carefully reviewing the record, we conclude that the State was not unduly
prejudiced by defense counsel's cross-examination of Joyce Pellegrino. Defense
counsel's cross-examination of the victim's wife actually brought out much
information about defendant and the victim--with the exception that the victim had
named defendant as his murderer. Defense counsel's cross-examination did not
mislead the jury any more than the trial judge's in limine order barring the hearsay
statement. Thus, the State was not thereby unduly prejudiced. Therefore, defense
counsel did not "open the door" to the victim's out-of-court statement and,
accordingly, it remained inadmissible. See Chambers, 179 Ill. App. 3d at 580-82.
We note, sua sponte, that under the "completeness doctrine," which provides
that where a witness relates a conversation the opponent may bring out all of the
conversation on cross-examination (People v. Weaver, 92 Ill. 2d 545, 556 (1982)),
prejudice is nonetheless required. People v. Olinger, 112 Ill. 2d 324, 337 (1986).
We hold that the trial court erred in admitting this prejudicial evidence. Further, as
with the evidence of other crimes, we cannot deem the erroneous admission of this
evidence to have been harmless.
Based on the erroneous admission of other-crimes evidence and the hearsay
testimony of the victim's wife, defendant's conviction must be reversed and the
cause remanded for a new trial. We note our previous finding that the evidence was
sufficient to prove defendant guilty beyond a reasonable doubt. We adhere to that
finding even with the above-mentioned evidence excluded. This finding removes
the risk of subjecting defendant to double jeopardy. See People v. Taylor, 76 Ill.
2d 289, 309-10 (1979). Due to our disposition of this cause, we need not address
defendant's remaining contentions.
CONCLUSION
For the foregoing reasons, the judgment of the circuit court of Cook County is
reversed, and the cause is remanded to that court for a new trial consistent with this
opinion.
Reversed and remanded.
JUSTICE HEIPLE, concurring in part and dissenting in part:
The majority excludes evidence of a murder scheme between defendant and
jailhouse informant Thomas Dye, whereby defendant would kill a witness in Dye's
case in exchange for an alibi in his own. The majority holds that this evidence is
more prejudicial than probative. I disagree. Evidence is excluded only if its
prejudicial effect substantially outweighs its probative value. People v. Illgen, 145
Ill. 2d 353, 365 (1991). The prejudicial effect of the evidence of the plan did not
substantially outweigh its probative value; in fact, this evidence is highly probative.
The conversation involving the scheme was admitted at trial to place defendant's
confession in context and to rebut defendant's contention that he was unable to
reason and communicate coherently because of medication he was taking. The
conspiracy between defendant and Dye is highly probative in establishing these two
points, and although other conversations between defendant and the informant were
admitted, none were as probative as the ones in which defendant and Dye formed
their plan. First, no other exchange explains why defendant confessed to Dye: it
was to assuage Dye's doubts that defendant was capable of performing his promise
to murder the witness in Dye's case. Without this information, defendant's reason
for confessing, and thus the confession itself, remains mysterious and suspect.
Second, this evidence was crucial to rebut defendant's argument that his reasoning
was altered by medication taken while in prison. Even though several hours of
other conversations between defendant and Dye were admitted, no other discussions
so fully establish that defendant was coherent and able to reason as the ones where
defendant and Dye concocted their detailed scheme. This evidence demonstrates
that defendant's conversation was not merely drug-induced bravado; rather, it was
careful, calculated and indicative of someone unaffected by medication.
The admissibility of evidence at trial is a matter within the sound discretion of
the trial court and will not be overturned absent an abuse of that discretion. Illgen,
145 Ill. 2d at 364. Such abuse of discretion will be found only where the trial
court's decision was arbitrary, fanciful, or one that no reasonable person would
make. Illgen, 145 Ill. 2d at 364. That standard has not been met here, as it is clear
that a reasonable person could find the disputed evidence more probative than
prejudicial. The trial court did not abuse its discretion when it admitted the
evidence, and the evidence should not be excluded now.
I agree, however, that the evidence concerning the hearsay testimony of the
victim's wife should be excluded, and that to allow such evidence was not harmless
error. Therefore, defendant should be granted a new trial, but at this new trial
evidence regarding his conspiracy with Dye should be once again be admitted.
JUSTICES MILLER and McMORROW join in this partial concurrence
and partial dissent.
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