Petition — McClellan v. Illinois

In Tue

Supreme Court of the United States

Octoser Term, 1975

No. 75-875 1

CHARLES McCLELLAN,

Petitioner,

vB.

PEOPLE OF THE STATE OF ILLINOIS,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

APPELLATE COURT OF ILLINOIS,

FIRST DISTRICT

FREDERICK F. COHN

35 E. Wacker Drive

Chicago, Illinois 60601

MARSHALL R. WEINBERG

REILLEY, BELL & WEINBERG

100 N. LaSalle Street

Chicago, Illinois 60602

Attorneys for Petitioner

Midwest Law Printing Co., Chicago 60601, Financial 63988

TABLE OF CONTENTS

;

: a

PAGE

| JUDGMENTS AND OPINION BELOW ooocccccccccccccsscoose: 2

'

JURISDICTION OF THIS COURT ....-cccccccccccccccceeecsceeees 2

| QUESTIONS PRESENTED FOR REVIEW ............... 3

CONSTITUTIONAL PROVISIONS AND STAT-

SET 4

RAISING THE FEDERAL QUESTIONS «00.00.0000... 4

STATEMENT OF THE CASE. .u....--ccccccccccoccceccoeesseecoeeeees 5

: REASONS FOR GRANTING THE WRIT:

1.

A defendant in a criminal! case is denied his Sixth

Amendment right to confrontation where he is pre-

vented from impeaching a crucial prosecution wit-

ness with prior inconsistent statements on grounds

that said impeaching statements were recorded in

violation of a State eavesdropping statute ............ 9

IL.

The exclusion of the tapes violated due process .. 13

IL.

Withdrawal of offered evidence under the threat

that the lawyer and client will be arrested if they

offer said evidence sufficiently preserved the issue

of whether exclusion of said evidence violated peti-

tioner’s constitutional rights 0000000000000 13

REIT --snldsshssenpintshisenstucintenbivptitebiosinineieiencaeiepeetiniusiniine 18

a aE | Le ea ee ee

APPENDICES: _

A—Opinion of Appellate Court of Illinois, First

gE EAR GEES A AEST en ee ED ES Re TE la

—Dissenting Opinion of Justice Simon ................... 13a

B—Order of Illinois Supreme Court denying peti-

tion for leave to appeal 2. cc ececeececcececeeeeeeeee 18a

C—Chapter 38, Section 14-1 to 14-5 000. 19a

TABLE OF AUTHORITIES

Cases

Beaber v. Beaber, 41 Ohio Misc. 95, 322 N.E.2d 910

en Suisihedilavitieanidiliniabiditiabeseds a

Brady v. Maryland, 373 U.S. 83 (1963) ........ 13

Bumper v. North Carolina, 391 U.S. 543 (1968) ............ 14

Burdeau v. McDowell, 256 U.S. 465 (1921) ................. 12

Chambers v. Mississippi, 410 U.S. 284 (1973) .......... 10, 17

Davis v. Alaska, 415 U.S. 308 (1974) 20000. 9, 10

Giglio v. United States, 405 U.S. 150 (1972) 13

Giles v. Maryland, 386 U.S. 66 (1967) —

Harris v. New York, 401 U.S. 222 (1971) 0... 11

Henry v. Mississippi, 379 U.S. 443, 447 (1965) ............. 14

Meyers v. Maness, 419 U.S. 449, 42 L.Ed.2d 574 (1975) 15

Napue v. Illinois, 360 U.S. 264 (1959) . 13

People v. Richardson, 7 Ill. App. 3d 367, 287 N.E.2d

ae UU maiatindisdasieninnindicatetieiins 17

United States v. Caron, 474 F.2d 506 (5 Cir. 1973) .. 1l

ili

United States v. Glasser, 315 U.S. 60 (1942) 16

United States v. Lewis, 482 F.2d 63 (D.C. Cir. 1973) ... 14

United States v. Nixon, 418 U.S. 683 (1974) .... 12

United States v. White, 401 U.S. 745 (1971) -............... 9, 11

Walder v. United States, 347 U.S. 62 (1954) ................ 11

Constitution Provisions and Statutes

Fourth Amendment to the Constitution of the United

BNR ceecccerscerseneccsvnntvnsiseseistneniehtonnnianansnnsnitatisansineneetateeneeginn 9

Sixth Amendment to the Constitution of the United

Na © ..csiicccnpcnindeiichsesititeenieaeinnieennainiasitiaanaainenenetiins ee 4,9

Fourteenth Amendment to the Constitution of the

a 4

Chap. 38, sec. 9-1, Ill. Rev. Stat. ..........------------essse-nsensnseee 16

Chap. 38, sec. 12-2, Ill. Rev. Stat. ........----------c--s-s-ssseseeees 16

Chap. 38, sec. 14-1, Ill. Rev. Stat. -....-------------------csese-ceseeee 19a

Chap. 38, sec. 14-2, Ill. Rev. Stat. -..........---------s---0-+- 11, 19a

Chap 38, sec. 14-2(b), Ill. Rev. Stat. -.......-.--------------000 15

Chap. 38, sec. 14-3, Ill. Rev. Stat. ..--.-------------e-eces-eeee= 20a

Chap. 38, sec. 14-4, Ill. Rev. Stat. -.........----------------0-0 11, 20a

Chap. 38, sec. 14-5, Ill. Rev. Stat. .......---.------------se-eseeceeesneees 21a

Chap. 38, sec. 32-2, Ill. Rev. Stat. -....--------------e---eeeeceseeeees 11

Chap. 38, sec. 32-2(d), Ill. Rev. Stat... ----------seeeeeeeeeees 11

Chap. 38, sec. 1005-8-1(b) (1), Ill. Rev. Stat. 16

Chap. 38, sec. 1005-8-1(b) (4), Ill. Rev. Stat. ............-. 11, 16

Chap. 38, sec. 1005-8-3(a) (1), Ill. Rev. Stat. -.................. 11

In Tue

Supreme Court of the United States

Octroszer Term, 1975

No.

CHARLES McCLELLAN,

Petitioner,

vs.

PEOPLE OF THE STATE OF ILLINOIS,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

APPELLATE COURT OF ILLINOIS,

FIRST DISTRICT

Petitioner, Charles McClellan, respectfully prays that a

Writ of Certiorari be issued to the Appellate Court of Illi-

nois, First District, to review its decision affirming judg-

ment of conviction in the Circuit Court of Cook County,

Illinois, adjudging petitioner guilty of the offense of ag-

gravated battery.

—l

JUDGMENTS AND OPINION BELOW

On June 2, 1975, the Illinois Appellate Court, First Dis-

trict, rendered an opinion affirming petitioner s conviction,

No. 59713, reported at ...... Ill. App.3d ...... , 331 N.E.2d 292

(1975). A copy of the Appellate Court’s opinion is attached

hereto as Appendix A.* A petition for leave to appeal to

the Illinois Supreme Court, timely filed, was denied on Sep-

tember 25, 1975. (No. 47765) (Appendix B)

JURISDICTION OF THIS COURT

The judgment sought to be reviewed (the Illinois Su-

preme Court’s denial of the petition for leave to appeal)

was entered on September 25, 1975. This petition for writ

of certiorari is timely filed within 90 days from said denial.

Jurisdiction of this Court is invoked under Title 28, United

States Code, Sec. 1257(3) and Rule 22 of the Rules of this

Court.

* Also included as part of Appendix A is Justice Simon's dis-

senting opinion, 331 N.E.2d at 300, beginning at p. 13a, infra.

—3—

QUESTIONS PRESENTED FOR REVIEW

1. May a State criminal defendant’s Sixth Amendment

right to confrontation be limited by application of a State

anti-eavesdropping statute, solely on grounds that the im-

peaching material—prior statements of a crucial prosecu-

tion witness inconsistent with the witness’ trial testimony

—was obtained in violation of said statute?

2. Consistent with due process of law, may a State

prosecutor successfully cause exclusion of proffered im-

peachment evidence consisting of prior inconsistent state-

ments of a crucial prosecution witness on the basis that

such evidence was procured by violation of the State anti-

eavesdropping statute, where the material thus excluded

is exculpatory because of its impeachment value?

3. May the State reviewing court deem waived the ques-

tion whether a defendant’s Sixth Amendment rights were

violated by exclusion of proffered impeaching evidence ob-

tained in violation of a State anti-eavesdropping statute,

where defense counsel withdrew the proffered evidence only

after being himself threatened by the trial court with arrest

and prosecution for violation of said statute merely if he

offered said evidence to the court?

4. May the withdrawal of proffered evidence under cir-

cumstances as set forth in Question 3 be deemed the vol-

untary waiver by a defendant of his federal constitutional

rights?

5. Where the State reviewing court’s refusal to decide

the merits of petitioner’s claimed violation of his Sixth

Amendment rights was based on circumstances as set forth

in Question 3, should not this Court consider such claim

on its merits?

eile

CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED

The Sixth Amendment to the Constitution of the United

States provides in pertinent part that:

“In all criminal prosecutions, the accused shall en-

joy the right .. . to be confronted with the witnesses

against him; to have compulsory process for obtaining

witnesses in his favor, and to have the Assistance of

Counsel for his defence.”

The Fourteenth Amendment to the Constitution of the

United States provides in pertinent part that:

“Section 1. ..+ [NJor shall any State deprive any

person of ... liberty . . . without due process of law;

”

The statutes involved, Chapter 38, Section 14-1 to 14-5,

Ill. Rev. Stat., are set out in Appendix C, pp. 19a-21a, infra.

RAISING THE FEDERAL QUESTIONS

Petitioner attempted to cross-examine a State witness

concerning prior inconsistent conversations recorded on

tape, and the trial court ruled that there could be no cross-

examination concerning said conversations because the

tapes were inadmissible as in violation of a State eaves-

dropping statute. The trial court further stated that if

counsel for petitioner offered said tapes, counsel himself

would be guilty of a crime. In his motion for new trial,

petilioner raised the issues of limitation of cross-examina-

tion and violation of due process. Petitioner raised in the

colin

Illinois Appellate Court and in his petition for leave to

appeal to the Illinois Supreme Court that the trie! court’s

limitation of cross-examination and exclusion of prior in-

consistent statements violated defendant’s Sixth Amend-

ment rights to confrontation and compulsory process, and

to due process of law.

STATEMENT OF THE CASE

Petitioner, Charles McClellan, was indicted for the mur-

der of Starlon McCle’lan, his daughter, for aggravated

battery on his wife, Freddie McClellan, and for aggravated

assault upon Della Leslie, his wife’s sister. The aggravated

assault count was dismissed before trial. After a jury trial,

petitioner was found not guilty of murder but guilty of

aggravated battery. He was sentenced to two to ten years

in the penitentiary.

The evidence adduced at trial is fully set forth in the

Appellate Court’s opinion, (App. A, pp. ia-5a), and is not

repeated herein to avoid unnecessary duplication.

In summary, it involved an incident between petitioner

and his estranged wife, at a car, wherein his daughter and

sister-in-law were passengers. At issue at trial were

whether the gun was brought to the scene by petitioner or

by his wife, who pulled the gun on whom, and whether

the shooting was purposeful or accidental during a scuffle

for the gun.

During cross-examination of petitioner’s wife, counsel

for petitioner attempted to question her concerning and

impeach her with certain prior inconsistent statements

made during a phone conversation between herself and

a

petitioner, which petitioner had recorded. The court pre-

cluded such inquiry. The following occurred:

“Q. What did you say to him?

A. I told him, well, no, I weren’t coming back home.

I said, ‘You never stay at home and you don’t treat

me right and I don’t want to come back home.’

Q. Now, during these conversations, did you use any

foul language against him?

A. No.

Q. Did you ever threaten him?

A. No.

Q. If I told you we had a tape of those—

Mr. Schaffner: Objection.

The Court: Objection sustained.

May we go off to the side one minute?

Mr. Goldstein: Yes.

(The following proceedings were had outside the

hearing of the jury:)

Mr. Goldstein: I have the tapes.

The Court: You have tapes.

Mr. Schaffner: I’d like to know why they are not

in our answer to discovery. They were referred to in

the preliminary hearing.

Mr. Goldstein: I just got them, I'll give them to you

now, I'll give you a chance to listen to them, I have

got them right here.

The Court: Plus the fact, number one, it involves

a violation of law.

Mr. Goldstein: Not where the facts are a murder

charge as to the question of who did what, you can go

into any motive.

The Court: Well, be that as it may, all I’m ques-

tioning is whether or not there are tapes.

ee Ee - -

==

Mr. Goldstein: There are tapes and I’d give them

to the State’s Attorney.

The Court: That is beside the point. Right now

there will be no reference to the tapes in front of the

jury at this point.

Mr. Goldstein: Yes.

The Court: Something might come in later, but

nothing now.

Mr. Goldstein: All right.” (Tr. 55-56)*

Subsequently, counsel for petitioner offered those tapes

to the State as a prerequisite to having them offered in

evidence. The court advised petitioner’s counsel that by

offering said tapes he, counsel, could be arrested. Threat-

ened with arrest, counsel withdrew the offer. The follow-

ing occurred:

“Mr. Goldstein: If the Court please, in the case of

People vs. McClellan, my name is Herbert R. Goldstein,

and represent, for the record, the defendant.

At this particular time would you mark these De-

fendant’s Exhibits 1, and 2, for identification, please.

(Thereupon said items were marked Defendant’s

Exhibits 1, and 2, for identification, respectively,

by the reporter.)

Mr. Goldstein: At this particular time I am tender-

ing to the Stat» Defendant’s Exhibit 1, and 2, for iden-

tification, which consist of two tapes, which will be

used for impeachment of one of the principal State

witnesses, Freddie McClellan.

I didn’t put it in discovery because we didn’t know

what she was going to say along those lines but in lieu

* “Tr.”’ refers to the Transcript of Proceedings at trial, incor-

porated as part of the Record on Appeal in the State proceed -

ings.

villi

of the threat, they said she had not sworn or threat-

ened ana we can prove this type by proper legal means.

I have given them time to listen or look at them.

The Court: Before you do anything, Counsel, it is

my duty to warn you about the statute, isn’t it?

Mr. Goldstein: Well, this is not the statute that

we are discussing.

The Court: Let’s get the statute. You may be in

violation of the law even by turning them over to any-

one.

Mr. Goldstein: Well, I have done it with the con-

sent of my client.

The Court: But you don’t have the consent of the

party—

Mr. Schaffner: Would you want Chapter 38?

The Court: Yes.

I hate to see you arrested as a result of you turning

this over to the Court.

Mr. Goldstein: Then I will learn more.

I am turning them over with the consent of the

defendant in this cause, who wants to use these tapes

for impeachment.

(Whereupon after an interval of time the fol-

lowing proceedings were had, to-wit:)

Mr. Goldstein: All right. On behalf of my client,

in lieu of what Your Honor said, he is withdrawing the

tapes and not using them.

The Court: Not using them?

Mr. Goldstein: Right.

The Court: All right.” (Tr. 155-57)

During final arguments, the prosecution asserted that

a crucial issue was the credibility of the witnesses.

wiiliins

REASONS FOR GRANTING THE WRIT

I.

A defendant in a criminal case is denied his Sixth Amend-

Petitioner’s wife was a crucial prosecution witness. Her

credibility was strongly at issue. Petitioner attempted to

impeach her testimony with prior inconsistent statements

she made to him over the phone which he had recorded.

The trial court prevented petitioner from impeaching this

witness with her prior inconsistent statements on grounds

that the recording was made in violation of the State eaves-

dropping statute, Chap. 38, secs. 141 to 14-5, Ill. Rev.

Stat.? (Tr. 55-56)

Preventing impeachment violated petitioner’s Sixth

Amendment right to confrontation.

“The Sixth Amendment to the Constitution guarantees

the right of an accused in a criminal prosecution ‘to be

confronted with the witnesses against him’. . . ‘Our

cases construing the [confrontation] clause hold that

a primary interest secured by it is the right of cross-

examination.’ .. .” Davis v. Alaska, 415 U.S. 308, 315

(1974).

1 Making or divulging the recording was not a violation of the

federal wiretapping provisions, 18 U.S.C. 2511, 47 U.S.C. 605, or

of the Fourth Amendment to the United States Constitution.

United States v. White, 401 U.S. 745 (1971).

allie

This right cannot be limited by a State eavesdropping

statute, where exclusion of evidence obtained in violation of

the statute results in permitting a witness’ perjury to go

uncorrected. The interrelationship of a defendant’s federal

constitutional right to confrontation to a competing State

interest—either to a State statute or to a State evidentiary

rule—recently has been considered by this Court in Davis

v. Alaska, 415 U.S. 308 (1974), and Chambers v. Mississippi,

410 U.S. 284 (1973).

In Davis, the Court held:

“(T]he right of confrontation is paramount to the

State’s policy of protecting judicial offenders.” 415

US. at 319.

In Chambers, the Court held that a State “evidentiary

rule” could not override defendant’s Sixth Amendment

rights. The Court stated:

“The right of cross-examination is more than a de-

sirable rule of trial procedure. It is implicit in the

constitution, and heips assure the ‘accuracy of the

truth-determining process.’ Dutton v. Evans, 400 U.S.

74, 89... (1970); Bruton v. United States, 391 U.S.

123, 135-137 . . . (1968). It is, indeed, ‘an essential

and fundamental requirement for the kind of fair trial

which is this country’s constitutional goal.’ Pointer

v. Texas, 380 U.S. 400, 405 . . . (1965). Of course, the

right to confront and to cross-examine is not absolute

and may, in appropriate cases, bow to accommodate

other legitimate interests in the criminal trial proc-

ess. E.g., Mancust v. Stubbs, 408 U.S. 204... (1972).

But its denial or significant diminution calls into ques-

tion the ultimate ‘ “integrity of the fact-finding proc-

ess” ’ and requires that the compelling interest be close-

ly examined. Berger v. California, 393 U.S. 314, 315...

(1969).” 410 U.S. at 295.

—_—)

Congress expressly has determined that there is no fed-

eral interest in preventing one party from recording a con-

versation with another party, 18 U.S.C 2511, 47 U.S.C. 606,

and this Court has held that such activity does not contra-

vene the Fourth Amendment. United States v. White, 401

U.S. 745 (1971).

Nor is the State’s interest in preventing eavesdropping

greater than its interest in prohibiting perjury, as is evi-

dent from the respective penalties. Violation of the State

eavesdropping statute? is a Class A misdemeanor,’ punish-

able by up to one year,’ while perjury® is a Class 3 felony,®

punishable by one to ten years.”

Irrespective of the State’s interest in prohibiting such

recording, it is doubtful if the State has an interest in

permitting perjury to go uncorrected. In United States v.

Caron, 474 F.2d 506 (5 Cir. 1973), the court, considering

the analogous federal] statute, held that illegally obtained

recordings—although not admissible as direct evidence—

are admissible to impeach a defendant. The court there

relied on this Court’s decisions in Walder v. United States,

347 U.S. 62 (1954), and Harris v. New York, 401 U.S. 222

(1971). These decisions demonstrate that evidence obtained

illegally in violation of the Fourth Amendment (Walder),

or the Fifth and Sixth Amendments (Harris), can be used

to impeach a defendant.

2 (Chap. 38, see. 14-2, Ill. Rev. Stat.

3 (hap. 38, sec. 14-4, Ill. Rev. Stat.

4 Chap. 38, sec. 1005-8-3(a)(1), Ill. Rev. Stat.

5 Chap. 38, sec. 32-2, Ill. Rev. Stat.

6 (hap. 38, see. 32-2(d), Ill. Rev. Stat.

7 (Chap. 38, sec. 1005-8-1(b) (4), Ill. Rev. Stat.

= eo

Since not even the Fourth, Fifth or Sixth Amendments

can be used to shield perjury, surely a State statute can-

not thus be used. To hold otherwise would be to raise such

State statute to a position of greater importance than

these most crucial amendments to the United States Con-

stitution.®

When, as in United States v. Nizon, 418 U.S. 683, 707-12

(1974), the legitimate needs of the fair administration of

criminal justice are held to outweigh even a presidential

privilege, a State statute designed to prohibit eavesdrop-

ping cannot be used by a trial court to shield conversations

which may on cross-examination impeach a prosecution

witness or establish the defendant’s innocence.

In ruling the proffered impeachment evidence inadmis-

sible—thus improperly limiting petitioner’s Sixth Amend-

ment rights—solely on grounds of the State statute, the

State court has decided a federal question of substance,

involving exercise of Sixth Amendment rights, not previ-

ously determined by this Court. Since the State court’s

decision is probably not in accord with relevant analogous

decisions of this Court, certiorari should be allowed.®

8 See Beaber v. Beaber, 41 Ohio Mise. 95, 322 N.E.2d 910 (1974),

a divorce action wherein the court held admissible, to impeach

plaintiff’s trial testimony, her statements in telephone conversa-

tions which were recorded by defendant in violation of a State

law comparable to the Illinois statute.

The denial of impeachment based on the evidence having been

obtained by violation of a criminal provision by a private citi-

zen would also be contrary to the holding of Burdeau v. Me-

Dowell, 256 U.S. 465 (1921) (holding admissible as substantive

evidence in chief, evidence obtained by private citizen under cir-

cumstances where, had he been a government agent, the Fourth

Amendment would have been violated).

See Justice Simon’s dissenting opinion in the case at bar, 331

N.E.2d at 300, App. A, pp. 13a-17a.

9 Per Supreme Court Rule 19.1(a).

a.

Il.

The exclusion of the tapes violated due process.

The due process clause of the United States Constitution

requires the prosecution both to turn over prior incon-

sistent statements of a prosecuting witness, Giles v. Mary-

land, 386 U.S. 66 (1967); Brady v. Maryland, 373 U.S. 88

(1963), and to correct knowingly false statements of pros-

ecution witnesses. Napue v. [llinois, 360 U.S. 264 (1959);

Giglio v. United States, 405 U.S. 150 (1972).

So too, due process cannot permit the prosecution to

cause the exclusion of prior inconsistent exculpatory state-

ments on the basis that petitioner obtained them in viola-

tion of a State criminal statute. Although the prosecution

may elect to prosecute for such violation, it cannot, con-

sistent with due process, obtain a conviction by succeeding

in its efforts to have the trial court exclude the prior in-

consistent statements of a prosecution witness which are

exculpatory by virtue of their impeachment value.

Certiorari should be allowed so that this Court may con-

sider the due process aspects of petitioner’s claim.

Il.

Withdrawal of offered evidence under the threat that the

lawyer and client will be arrested if they offer said evidence

sufficiently preserved the issue of whether exclusion of said

evidence violated petitioner’s constitutional rights.

The Illinois Appellate Court refused to consider the issue

whether petitioner was denied his constitutional rights of

confrontation and due process (with one judge dissent-

ing),’° disposing of the issue on the basis of a State proce-

10 See App. A, pp. 13a-17a.

f

wntiiiiion

dural ground, .e., that withdrawal of the tapes under threat

of arrest waived any error in their exclusion. Such refusal

of the State court to consider the issue on its merits does

not bar this Court from considering it. For this Court has

“consistently held that the question of when and how de-

faults in compliance with State procedural rules can pre-

clude our consideration of a federal question is itself a fed-

eral question.” Henry v. Mississippi, 379 U.S. 443, 447

(1965).

The State procedural grounds relied on by the Illinois

Appellate Court should not, under the circumstances here,

bar consideration of the denial of petitioner’s constitutional

rights.

Here, initially the court prevented the defense from

cross-examining the witness concerning the statements con-

tained on the tapes. (Tr. 55-56) Then, the next day, when

counsel moved to offer the tapes, the court advised counsel,

“T hate to see you arrested as a result of your turning

this over to the court.” (Tr. 156) Only under threat of

arrest were the tapes withdrawn.

Withdrawal of the defense request to have the tapes

admitted after the court had ruled them inadmissible and

under threat of arrest is not such acquiescence as may

be deemed a voluntary waiver of a constitutional right.

Cf. Bumper v. North Carolina, 391 U.S. 543 (1968).1

:

:

i

i

:

fin

To hold that to preserve the issue counsel had to subject

himself to arrest is contrary to the prevailing view, that

counsel must abide by instructions of the court and rely

on his remedy on appeal.

“We begin with the basic proposition that all orders

and judgments of courts must be complied with prompt-

ly. If a person to whom a court directs an order be-

lieves that order is incorrect the remedy is to appeal,

but absent a stay, to comply promptly with the order

pending appeal. Persons who make private determina-

tions of the law and refuse to obey an order generally

risk criminal contempt even if the order is ultimately

ruled incorrect. Howat v. Kansas, 258 U.S. 181, 189-

190 .. . (1922). Worden v. Searls, 121 US. 14...

(1887). The orderly and expeditious administration of

justice by the courts requires that ‘an order issued by a

court with jurisdiction over the subject matter and per-

son must be obeyed by the parties until it is reversed

by orderly and proper proceedings.’ United States v.

United Mine Workers, 330 U.S. 258, 293 . . . (1947).

This principle is especially applicable to orders issued

during trial. E.g., Illinois v. Allen, 397 U.S. 337...

(1970). Such orders must be complied with promptly

and completely for the alternative would be to frus-

trate and disrupt the progress of the trial with issues

collateral to the central questions in litigation.” Meyers

v. Maness, 419 U.S. 449, 42 L.Ed.2d 574, 583 (1975).

Here, there was no meaningful alternative to objecting

to the court's ruling. For one could object only to the court’s

order of exclusion, end the court stated counsel could be

arrested merely for offering such evidence to the court.’

12 Per the Illinois statute, divulgence of an illegally recorded

oa unication is an offense as well. Chap. 38, sec. 14-2(b), Ill.

v. Stat.

==

The court’s threat to have defense counsel arrested mere-

ly for offering such evidence to the court denied petitioner

his constitutional right to effective assistance of counsel by

creating an impossible conflict between the respective in-

terests of petitioner and defense counsel. Petitioner was

charged with murder and aggravated battery'’—both car-

rying possible penalties far greater than the one year pos-

sible sentence for violation of the State eavesdropping

statute'*—-and hence petitioner himself might have elected

to have said evidence offered. He might well have been

willing to risk the possible one year eavesdropping statute

penalty in order to attempt to have the impeaching evi-

dence admiited and thus possibly to avoid conviction for

murder or aggravated battery.

But how can counsel properly advise petitioner as to his

alternatives when counsel himself is threatened with being

charged and prosecuted merely for offering such evidence

to the court?

This court-created conflict deprived petitioner of his con-

stitutional right to effective assistance of counsel. United

States v. Glasser, 315 U.S. 60 (1942).

Since the decision to withdraw the evidence was made

after a court-created conflict between defense counsel and

18 The possible sentence for murder, Chap. 38, sec. 9-1, Ill. Rev

Stat. is a minimum of 14 years to any number of years. Chap.

38, sec. 1005-8-1(b)(1). For aggravated battery, Chap. 38, sec.

12-2, Ill. Rev. Stat., the possible penalty is 1 to 10 years. Chap.

38, sec. 1005-8-1(b) (4).

14 See p. 11, footnotes 2, 3 & 4, supra, and accompanying text.

=~ =

petitioner, this withdrawal cannot be deemed the voluntary

action of petitioner."®

Similarly, under these circumstances, where the trial

court had made his position clear, and counsel had every

reason to believe that any further reference to the tapes

would cause his own arrest, the points raised in the motion

for new trial that: (a) the trial court erred in sustaining ob-

jections to questions propounded by defense counsel, and

(b) that defendant was denied provisions of the Fourteenth

Amendment, including denial of due process, sufficiently

preserved the error for review. See Chambers v. Mississtp-

pi, 410 U.S. 284, 290 n.3 (1973).

The purpose of the State procedural rule that objection

must be preserved by reference in a motion for new trial

was here satisfied, in that the trial judge had made his

position most clear. Hence, there is no compelling interest

in the State procedural rule sufficient to override the par-

amount interest of petitioner’s constitutional right to con-

frontation. Chambers v. Mississippi, 410 U.S. 284 (1973).

This Court therefore has jurisdiction to consider the

merits of petitioner’s contentions concerning the violation

of his constitutional rights as set forth in Points I and II

of this Petition.

15 See People v. Richardson, 7 Ill. App. 3d 367,

517 (1972), where the Illinois Appellate Court held é /

ant’s plea was not voluntary where it was based on advice 0

counsel having a conflicting interest. See dissenting opinion in

case at bar, App. A, pp. 13a-17a.

== —la—

CONCLUSION APPENDIX A

People Of The State Of Illinois,

For the foregoing reasons, petitioner requests that this

Plaintiff-Appellee,

Court issue a Writ of Certiorari to review the judgment } v.

of the Illinois Appellate Court, First District. ; Charles ae stent Agpetant,

0. .

: ; Appellate Court of Illinois,

Respectfully submitted, First District, First Division.

FREDERICK F. COHN June 2, 1976.

35 E. Wacker Drive

Chicago, Illinois 60601 GOLDBERG, Justice:

MARSHALL &. WEINBERG The familiar but lethal combination of a domestic

REILLEY, BELL & WEINBERG . :

quarrel and a loaded pistol was the cause of the tragic

100 N. LaSalle Street ; . b hi ‘ d Ch | M Cl iI

Chicago, Illinois 60602 events disclosed by this record. arles McClellan

(defendant) was indicted for the murder of Starlon

McClellan, his daughter (Ill. Rev. Stat. 1971, ch. 38, par.

9-1 (a\2)); aggravated battery on his wife, Freddie

McClellan, (Ill. Rev. Stat. 1971, ch. 38, par. 12-4 also

par. 12-4 (b1)) and for aggravated assault upon Della

Leslie, his wife’s sister (Ill. Rev. Stat. 1971, ch. 38, par.

12-2 (av1).) The count for aggravated assault was dis-

missed before trial. After a jury trial, defendant was

found not guilty of murder but guilty of aggravated

battery. He was sentenced to two to ten years in the

penitentiary. Defendant appeals.

Attorneys for Petitioner

» In this case, defendant presents six points of alleged

reversible error: the court advised the jury that defen-

') dant would assert the defense of accident and thus

shifted the burden of proof to him; the comments by the

trial court prior to trial which advised the jury that

defendant would testify. which in essence forced him to

do so; refusal of the trial judge to allow counsel for

defendant to question prospective jurors directly; unfair-

ly preventing defense counsel from using evidence

_ nee

—2a—

favorable to the defendant; not holding an in camera

hearing into the value, validity and admissibility of

evidentiary tapes sought to be introduced by defendant;

and the calling by the State of defendant’s wife for a

second time, only to identify the photo of her deceased

daughter which was done solely to prejudice the jury.

Defendant raises no point regarding the sufficiency of

the evidence to prove him guilty of aggravated battery

beyond a reasonable doubt. The State has taken the posi-

tion that none of these issues present reversible error

which would require reversal of the judgment.

Although the sufficiency of the evidence of guilt is not

questioned, a factual statement is essential. Freddie

McClellan testified that she was the wife of defendant.

Their daughter, Starlon, was born September 28, 1960.

The parties lived in Cairo, Illinois. They separated on

August 19, 1972, and the wife and daughter went to live

with the former’s sister, Della Leslie, in Chicago.

On September 16, 1972, the wife, the daughter and

the former’s sister were driving in an automobile in

Chicago. The sister was driving and the wife sat in the

front right-hand seat. The daughter, then some 12 years

of age, sat in the right rear seat. They saw defendant

driving an automobile in the opposite direction. The wife

testified that then she noticed defendant following them.

When they stopped at a traffic light, defendant came

over to the left side of the automobile and told the sister

to pull over as he wished to speak to his wife. At the

wife’s request, her sister disregarded this and proceed-

ed. When they stopped at another light, defendant came

out of his automobile, which he had parked to their

right, and walked over to them. He asked to speak to the

wife and she responded that there was nothing to talk

about. The wife testified that defendant reached inside

of his coat with his right hand, pulled out a pistol and

a

fired a shot which struck her behind the right ear and a

second shot which struck her in the right shoulder. She

then slumped over and heard some more shots. She was

then taken to the hospital where she remained until

December 20, 1972, and ‘hen to a rehabilitation center

where she was at the time of trial in February of 1973.

She denied that she had ever touched defendant’s hands

or struggled with him for possession of the gun.

Della Leslie, the sister, corroborated this testimony

and testified that after firing the two shots which

wounded the wife, the *usband stuck his hand inside the

front window and shot his daughter once. The witness

got out of the autcmobile and heard two more shots. She

then reentered the car and drove to obtain assistance.

The daughter entered the hospital on the day of the

shooting. She subsequently died as a result of a bullet

wound which had severed her spinal cord and caused

other injuries.

Defendant called a clerical witness who testified

without objection to his good reputation for being a non-

violent person and for truth and veracity. He also called

his employment supervisor to give opinion evidence

regarding his truth, veracity and honesty. He also called

a minister, an aunt of defendant, who testified that she

had a telephone conversation after the incident with

Della Leslie who told her that there had been a scuffle

over a gun and that Freddie McClellan and Starlon had

been shot. This was partly corroborated by the

minister’s secretary who had made the call and listened

to the conversation. She testified that Della said that

there had been a “tussle” over a gun between defendant,

the wife and the daughter.

—4da—

Defendant testified in his own behalf. He agreed that

the parties had lived together near Cairo and that his

wife had left and gone to Chicago with the daughter

sometime in August of 1972. He testified that he bought

the pistol on August 30, 1972, but that he never saw it

again until September 16, 1972. On August 30, 1972, the

gun was in a dresser drawer at home. He went to

Chicago on September 15, 1972, in connection with his

employment. He did not have the gun in his possession

then. He encountered the automobile driven by Della

Leslie on September 16, 1972, only by chance. He drove

up to the side of their car and asked Della Leslie to stop

as he wished to speak to his wife. She responded with a

profanity and proceeded. At another light, he got out of

his automobile, approached the other car where his wife

was seated and said that he would like to talk to her.

She responded, “You are fixing to get your F’g head

blown off.” Defendant asked if the daughter could ride

along with him. He did not have the gun when he ap-

proached the car. His wife then raised up the gun in her

hand and when he saw it, he grabbed it. The little girl

jumped up and grabbed hold of the gun at which time it

went off. He grabbed the gun back and “it fired off two

more shots.” His wife’s hand then went limp and he had

the gun in his hand. Della Leslie then drove off in the

automobile and he was standing with the gun. In due

course he went over to the police station, surrendered

and gave them the gun.

The gun is a revolver which holds five cartridges. It

was empty when the police received it. Defendant

testified that he had removed the bullets or shells which

remained. Ballistic evidence confirmed that this was the

gun which had caused the death of the daughter. A

police officer testified that, after being properly advised

of his rights, defendant stated that he had the gun on his

eee ee eed GaSe

anit

person in his waistband when he went up to the car.

This was because he had trouble with his wife and he

was afraid that she would shoot him. He pulled the gun

out of his waistband and his daughter reached from the

back seat so that the gun was accidently discharged.

Defendant stated that he could not recall how many

shots had been fired. Defendant denied making this

statement to the police.

Defendant first points out that when the trial judge

made a preliminary statement to the prospective jurors,

he told them that defendant had filed an answer as part

of pretrial discovery in which he asserted that his

defense would be that he was not guilty but that the

mishap was caused by the acts of Freddie McClellan

and that the death of the daughter was an accident caus-

ed by these acts. Defendant urges that this had the

effect of shifting the burden of proof to him.

After examining all of the remarks made by the court

on voir dire, we cannot agree as to the effect of this por-

tion of the statement by the court. On a number of in-

stances, the trial judge properly emphasized that the

burden of proof rested on the State and that defendant

had no need to testify. In addition, in the opening state-

ment made by defendant’s counsel to the jury, he

described the occurrence as an accident in quite a

similar manner. Furthermore, an examination of the

given instructions shows that the court properly in-

structed the jury regarding the presumption of in-

nocence and the burden of proof which rested on the

State throughout the case. (IPI-Criminal 2.03). We can-

not agree that the jury was under any illusion or misap-

prehension as regards the burden of proof.

We will also point out here, as we will concerning ad-

ditional contentions, that defendant made no objection to

—§fa—

this portion of the preliminary statement by the court;

did not ever move the court to discharge the jury for

this reason and did not include any reference to this

alleged error in his written motion for a new trial. It is

therefore clear that, even if any error did exist in this

regard, it has been waived by failure to object and

failure to include the matter in the motion for new trial.

See People v. Studdard, 51 Ill. 2d 190, 198, 281 N.E. 2d

678, regarding failure to object; People v. Hairston, 46

Ill. 2d 348, 366, 367, 263 N.E. 2d 840, on failure to in-

clude the matter in the written motion for new trial;

also, People v. Davis, 18 Ill. App. 3d 793, 797, 310 N.E.

2d 682 and People v. Smith, 17 Ill. App. 3d 494, 496, 497,

308 N.E. 2d 257, covering both of these points.

The second point raised by defendant is actually an

extension of his first claim regarding the initial

statements of the trial court. He urges that as a result

his “counsel had no choice but to place him on the

stand.” The one and only authority cited by defendant in

support of this contention is People v. Weinstein, 35 Ill.

2d 467, 220 N.E. 2d 432. That case is completely in-

applicable. There, the Supreme Court reversed a convic-

tion for murder because of repeated argument by the

prosecutor to the jury that it was the duty of defendant

to “create a reasonable doubt of her guilt before she can

be acquitted.” (35 Ill. 2d 467, 469, 220 N.E. 2d 432, 433.)

This continued although the court sustained defense ob-

jections upon some 17 occasions.

Virtually the sole argument in defendant’s brief in

support of this proposition is that the only witnesses to

the incident were the wife, her sister and the defendant.

That very statement convinces us that the situation in-

volved in the case made it essential for defendant to

testify in his own behalf. Reading of this record

—T7a—

demonstrates that the entire defense was well prepared

and planned and that testimony by defendant in his own

behalf displayed the use of good strategy by his counsel.

The verdicts of the jury demonstrate the validity of this

proposition.

The third issue raised by defendant is that he was pre-

judiced by the trial court’s refusal to allow counsel to

question prospective jurors. The record shows only that

the trial judge initiated the voir dire by reading the in-

dictment and making a general statement to the entire

array. There is no further direct record of the balance of

the proceedings on selection of the jury. The record does

show statements by the court and counsel on defendant’s

motion to discharge the jury immediately before they

were sworn and on oral argument on defendant’s

written motion for new trial. From this we learn in-

directly that the trial judge permitted counsel for both

sides to ask questions of all of the jurors collectively. The

court also suggested that the attorneys submit additional

questions in writing to be put to individual jurors by the

court. No such questions were submitted by defendant’s

counsel. The record also shows indirectly that two jurors

were reluctant to serve and, although their answers

showed that they were qualified, the court excused them

for cause on motion of defendant. The record does not

reflect the questions put to any of the jurors, collectively

or individually, their answers or whether defendant

made additional challenges for cause or excused any

juror by peremptory challenge.

Selection of the jury is governed by Supreme Court

Rule 234, Ill. Rev. Stat. 1973, ch. 110A, § 234 (50 Ill. 2d

R. 234) which provides: “The judge shall initiate the

voir dire examination of jurors * * *.” “The parties or

their attorneys shall be allowed a reasonable opportunity

to supplement such examination * * *.” The con-

——

stitutionality of a similar restriction upon examination

of individual jurors by the attorneys has been establish-

ed. (People v. Lobb, 17 Ill. 2d 287, 161 N.E. 2d 325.)

However, it has been repeatedly held that “direct

questioning of prospective jurors by the parties or their

attorneys during voir dire examination is not to be total-

ly prohibited.” People v. Turner, Ill. App., 326 N.E. 2d

425, (First District, General No. 60135, filed March 20,

1975) citing Lobb; also People v. Carruthers, 18 Ill. App.

3d 255, 309 N.E. 2d 659; Street v. Finney, 9 Ill. App. 3d

638, 292 N.E. 2d 553. See also People v. Willis, 26 III.

App. 3d 518, 325 N.E.2d 715, First District, filed

February 6, 1975.

However, it does not follow that each and every viola-

tion of the rule in selection of the jury requires reversal

of an ensuing conviction. It has been held by this court

that there is no prejudicial error without evidence that

defendant’s attorney was “prevented from discovering

any fact or reason why a prospective juror might be

biased or lack the essential qualifications for service as a

juror in the case.” People v. Turner, Ill. App., 326 N.E.

2d 425, quoting from People v. Carruthers, 18 Ill. App.

3d 255, 261, 309 N.E. 2d 659.

In the case before us, there is no showing of prejudice

of any kind or to any degree. Defendant’s brief does not

demonstrate that he was prejudiced in any manner or

that his trial was unfair. The record before us shows

only that counsel for defendant failed to submit

supplemental questions to the trial court. The record

shows no request to the court to permit direct questions

in any situation or regarding any specific field of in-

quiry. From this, we can only conclude that the

questioning by the court was sufficient to show the need

for a challenge for cause or to permit “an intelligent ex-

ercise of the peremptory right.” (See Lobb, 17 Ill. 2d 287.

—IJa—

302, 161 N.E. 2d 325, 334.) The added fact that the trial

judge excused two jurors for cause, despite the fact that

their answers showed them qualified to serve, tends

strongly to show that the process of selection by the

court was fair and impartial in this particular case. This

conclusion is cogently supported by the verdict of not

guilty of murder which demonstrates fair and impartial

consideration by the jury.

Defendant’s brief makes no sufficient showing of pre-

judice in any specific manner. As this court has recently

held (People v. Turner, lll. App., 326 N.E. 3d 435):

* * * (T}t is incumbent upon the objecting party to

show that the prohibition against direct questioning

imposed by the court prevented him from discover-

ing any fact or reason why a prospective juror

might be biased or lack the essential qualifications

for service as a juror, or otherwise precluded him

from an_ intelligent exercise of the right to

challenge for cause or peremptorily.

In the case before us, we conclude that defendant did

receive a fair and impartial trial. However, we wish to

make the point clear that, pending amendment of Rule

234, which we understand is presently being considered

by the Supreme Court, it is the duty of all trial judges to

initiate the voir dire examination and to allow the par-

ties or their attorneys a reasonable opportunity to

supplement such examination in accordance with the

clear dictates and requirements of the rule. Until the

rule is modified or amended, it should be respected and

observed and no trial judge should totally prohibit direct

questioning of prospective jurors by the parties or their

attorneys.

Defendant’s next claim, that the trial court prevented

him from using favorable evidence, arises from defense

counsel’s statement that he had possession of certain

———

tapes which allegedly contain telephone coversations

between defendant and his wife. This contention re-

quires reference to the record. Counsel for defendant

cross-examined the wife regarding certain alleged

telephone conversations between her and defendant

shortly after the wife left their home. Defense counsel

then asked the witness if she had ever threatened defen-

dant and received a negative answer. He then

stated: “Q. If I told you we had a tape of those—”. An

objection was made by the State and sustained and a

conference was had between the court and counsel.

Defense counsel stated that he had “the tapes.” The

State’s Attorney asked why they were not referred to in

the discovery documents. Defense counsel responded

that he had just received them and he offered the State’s

Attorney a chance to listen to them. The court stated

that these tapes involved a violation of law; and, after

some additional conversation, the court stated that there

should be no reference to the tapes in the presence of tne

jury at this point. The court then stated: “Something

might come in later, but nothing now.” and defense

counsel replied, “All right.”

At a later time, also out of the presence of the jury,

defense counsel asked that the tapes be marked for iden-

tification as defendant’s exhibits. The court told counsel

for the defense that it was the court’s duty to warn

counsel that it might be a violation of law if he were to

turn the tapes over to anyone. After additional discus-

sion, there was a conference off the record. Counsel for

defendant then stated, “All right. On behalf of my client,

in lieu of what Your Honor said, he is withdrawing the

tapes and not using them.” The court responded to

defense counsel, “Not using them?” and counsel replied,

“Right.” The court then stated, “All right,” and trial -

proceeded.

—lla—

In defendant’s brief he states that the tapes were of

conversations had by the wife “after the shooting took

place.” This statement is not supported by the trial

record. In our opinion, this record shows no error.

Counsel for defendant specifically announced that he

would not use the tapes. The tapes were never offered in

evidence. No offer of proof was ever made. The point, if

one ever existed, was thus withdrawn; quite analogous

to the withdrawal of an objection by a defendant. People

v. Jones, 47 Ill. 2d 135, 140, 265 N.E.2d 125.

In addition, no description of the alleged contents of

the tapes appears in this record. All that counsel for

defendant ever did was to have the tapes marked for

identification and then tender them to the State’s At-

torney for his examination. He then immediately

withdrew the use of the tapes. We find no error of any

kind in this record. In this instance also, failure of

defendant to include this point in the motion for new

trial evidences a waiver in accordance with the

authorities above cited. Cases such as Brady v.

Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215,

and Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28

L.Ed. 2d 1, have no application here.

In our opinion, the examination of the record above set

forth effectively disposes of defendant’s fifth argument

to the effect that the court should have had an in camera

hearing into the admissibility of the tapes. No such

hearing by the court was requested or even suggested by

defendant. Also, the statement in this portion of defen-

dant’s brief that the trial court erred by preventing ade-

quate cross-examination of the wife is not supported by

the record.

The sixth and last contention of defendant is that pre-

judicial error occurred when the wife was called to the

stand for a second time to identify a photograph of the

deceased. She broke down and wept in the presence of

the jury. After the initial testimony of the wife and of

her sister, and. after ballistics and other testimony, the

State’s Attorney recalled the wife for the sole purpose of

having her identify a designated photograph as that of

her deceased daughter. The record shows that the

witness stated, “Yes, that is Starlon, that is my baby. |

don’t have my baby any more.” The jury was immediate-

ly excused and the record shows the witness repeating,

“Oh, Starlon, my baby.” Counsel for defendant requested

that the record indicate that the witness “broke down on

the stand in front of the jury.” No motion of any kind

was made by defendant but the matter was included in

the motion for new trial.

The record shows that the photograph of the deceased,

identified by the wife, was a necessary piece of

probative evidence. The pathologist who testified to the

cause of death identified the body which he had examin-

ed only by use of this photograph. There was a

legitimate need for the wife to identify the picture as a

foundation for the essential testimony of the pathologist.

When there is a proper use or need for identification of

a photograph, collateral objections, such as the gruesome

character of the picture, are not availing. (People v.

Speck, 41 Ill. 2d 177, 202, 242 N.E. 2d 208.) In addition,

there is nothing in this record which proves or even

suggests that the State’s Attorney recalled this witness

and had her identify the photograph for any reason

beyond the necessity of creating a proper foundation for

the testimony of the pathologist. At this point, also, it is

pertinent again to repeat the statement that the acquit-

tal of the defendant on the charge of murder shows that

the jury gave the case a completely fair and unbiased

consideration.

——o

We have made a careful and detailed examination of

this record. We find no reversible error. The judgment

is affirmed.

Judgment affirmed.

BuRKE, P.J., concurs.

Simon, J., dissents.

SIMON, Justice (dissenting):

The court relies entirely on procedural grounds in af-

firming the aspect of this case dealing with the taped

conversations. It determined that the defendant's at-

torney voluntarily withdrew the tapes thereby obviating

the need for a ruling by the trial court on their use, that

the defendant failed to make an offer of proof so that the

record in this court could show whether the tapes would

have been helpful to the defendant, and that the defen-

dant failed to specify in his written motion for a new

trial error in excluding the tapes thereby waiving that

issue. I do not agree with this view of the record and,

therefore, would reach the constitutional issues implicit

in denying the defendant, on the basis of a state statute,

the use of the tapes to impeach his wife when she

testified against him.

When the tapes were first referred to by defendant's

counsel in cross-examining the wife, the State objected

and the objection was sustained. The State’s own inter-

pretation of the record as reflected by the following

statements appearing in its brief indicates that the tapes

were excluded by the trial court:

—l4a—

“The State objected to the attempted introduction of

the tapes and the trial court sustained that objec-

tion.”

“The trial court refused to allow the tapes to be

a stating that the tapes were violative of Illinois

aw.”

The day after the trial court sustained the State’s

objection to reference to the tapes, defendant’s counsel

asked that the tapes be marked as defendant’s exhibits.

Thereupon, even though the State made no objection, the

trial court informed counsel it was the court’s duty to

warn counsel about the Illinois eavesdropping statute,!

that counsel might be violating the law by turn’:g the

tapes over to the trial court or the prosecutor, and that

the court would “hate to see you [defendant’s counsel]

arrested as a result of you turning this over to the

court.”

It was the responsibility of the trial judge to permit

the use of any proper evidence which might have

assisted the court and the jury in arriving at the truth

and in assuring that the defendant would have a fair

trial. Instead, the trial court with good intentions, but in

a misdirected effort to protect counsel from violating the

eavesdropping statute, chilled defendant’s offer of the

tapes which were being presented for the purpose of im-

peaching a crucial prosecution witness. The trial court

erred in emphasizing the eavesdropping statute rather

than the defendant’s constitutional right to confront the

witness against him and in discouraging the use of the

tapes by suggesting to defendant’s counsel that he was

' IIL. Rev. Stat. 1973, ch. 38, § 14-2(b) provides:

“A person commits eavesdropping when he:

“(b) Uses or divulges, except in a criminal proceeding,

any information which he knows or reasonably should

— was obtained through the use of an eavesdropping

evice.

—15a—

exposing himself to criminal liability. The record shows

that only after receiving the trial court’s warning about

the pitfalls of the eavesdropping statute did defendant’s

counsel inform the court he was withdrawing the tapes

and not using them. In view of the trial court’s warning,

this was not a voluntary withdrawal. Certainly, it was

not the equivalent of the withdrawal of an objection to

evidence of a previous conviction which this court relies

on in citing People v. Jones (1970), 47 Ill. 2d 135, 140,

265 N.E. 2d 125. In that case defendant’s attorney after

initially objecting, withdrew his objection, saying, “Oh

well, let it go in. It doesn’t make any difference.”

Although the motion for a new trial did not specifical-

ly mention the tapes, it did refer to error committed by

the trial court in sustaining objections by the State to

questions propounded by defense counsel and in denying

due process to the defendant. If the issue of improper

exclusion of the tapes was not raised by the motion for a

new trial, this is a proper case for the application of

Supreme Court Rule 615(a) relating to the consideration

of plain errors or defects affecting substantial rights not

brought to the attention of the trial court, particularly

since, as pointed out below, the exclusion of the tapes

may have deprived the defendant of sixth amendment

rights. People v. Pickett (1973), 54 Ill. 2d 280, 282-283,

296 N.E. 2d 856.

The conclusion reached by this court that the case

should not be remanded because no offer of proof was

made and no description of the alleged contents of the

tapes appears in this record overlooks the circumstances

under which the tapes were excluded. The failure of the

defendant to make a formal offer of proof is clearly ex-

cusable in the face of the trial court’s admonition about

the eavesdropping statute, since even an offer of proof

would have constituted a violation of the statute as the

—l6a—

trial court viewed it and explained it to defense counsel.

This court’s decision is not supported by procedural

shortcomings, and the court should, therefore, have con-

sidered whether denying defendant’ use of the tapes

deprived him of constitutional rights.

If there was any evidence on the tapes helpful to the

determination of the guilt or innocence of the defendant,

their use is constitutionally mandated and cannot be

blocked by the eavesdropping statute. The State relies

on People v. Kurth (1966), 34 Ill. 2d 387, 216 N.E. 2d

154, which held that illegal tapes cannot be used by the

State against a defendant in a criminal prosecution. In

this case, the defendant was seeking to use the tapes in

question in his defense.

The exclusion of the tapes because of a state statute

preventing their use by one accused of crime as an aid

to his defense deprives the accused of his constitutional

rights of due process and to confront witnesses against

him. By its interference with the effort of the defendant

to contradict the testimony of his wife, the court denied

the defendant his sixth amendment rights, even thoug>

the court was relying on Illinois statutes making the

tapes which defendant was seeking to use or their

recording or use illegal. In Davis v. Alaska (1974), 415

U.S. 308, 94 S.Ct. 1105, 39 L.Ed. 2d 347, a crucial

prosecution witness was shielded by a protective order

prohibiting any reference in cross-examination to his

juvenile record. The protective order was granted on the

basis of a state statute rendering juvenile records inad-

missible in non-juvenile courts. The Supreme Court held

that the interest of the state in protecting the anonymity

of juvenile offenders is subservient to the sixth amend-

ment right to full and effective cross-examination of a

witness, and that the state courts erred in concluding

—17a—

that the cross-examination as limited by the protective

order was adequate. Similarly, the right of a defendant

to confront a witness against him with adequate cross-

examination overrides the interest of the State in

providing protection against eavesdropping.

When, as in United States v. Nixon (1974), 418 U.S.

683, 707-712, 94 S.Ct. 3090, 41 L.Ed. 2d 1039, the

legitimate needs of the fair administration of criminal

justice are held to outweigh even a_ presidential

privilege, a state statute designed to prohibit eavesdrop-

ping cannot be used by a trial court to shield conver-

sations which may on cross-examination impeach a

prosecution witness or establish the defendant’s in-

nocence.

Fairness and justice require that one accused of

criminal conduct be afforded the opportunity without in-

terference by the court to use any evidence which is

proper and may tend to show his innocence. The tapes

were proper. Whether they were helpful, this court can-

not determine because of their swift disappearance from

the trial arena. I would, therefore, remand the case for

an in camera hearing to determine their relevance for

purposes of impeachment. This is the procedure the trial

court should have adopted when the tapes were

presented even though defendant’s counsel did not for-

mally move for such a hearing. The suggestion that such

a hearing be conducted was implicit, however, in

counsel’s statement that he was tendering the tapes to

the State’s Attorney so that he could listen to them. The

next step in orderly trial procedure would have been an

in camera hearing upon the State interposing ary objec-

tion to their use.

"If at the in camera hearing it developed that the tapes

were relevant, the defendant would then be entitled to a

new trial.

_——

APPENDIX B

Order Of The Supreme Court Of Illinois

Denying Leave To Appeal

And now on this day the Court having duly considered

the Petition for Leave to Appeal herein and being now

fully advised of and concerning the premises, doth

overrule the prayer of the petition and denies Leave to

Appeal herein.

I, CLELL L. Woops, Clerk of the Supreme Court of the

State of Illinois and keeper of the records, files and Seal

thereof, do hereby certify that the foregoing is a true

copy of the final order of the said Supreme Court in the

above entitled cause of record in my office.

IN WITNESS WHEREOF, I have hereunto sub-

scribed my name and affixed the Seal of said

court this 4th day of December, 1975.

/s/ Clell L. Woods, Clerk,

Supreme Court of the State of Illinois.

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APPENDIX C

14-1. § 14-1. Definition.} (a) Eavesdropping

device.

An eavesdropping device is any device capable of be-

ing used to hear or record oral conversation whether

such conversation is conducted in person, by telephone,

or by any other means; Provided, however, that this

definition shall not include devices used for the restora-

tion of the deaf or hard-of-hearing to normal or partial

hearing.

(b) Eavesdropper.

An eavesdropper is any person, including law enforce-

ment officers, who operates or participates in the opera-

tion of any eavesdropping device contrary to the

provisions of this Article.

(c) Principal.

A principal is any person who:

(1) Knowingly employs another who illegally uses

an eavesdropping device in the course of such

employment; or

(2) Knowingly derives any benefit or information

from the illegal use of an eavesdropping device

by another; or

(3) Directs another to use an eavesdropping device

illegally on his behalf.

14-2. § 14-2. Elements of the Offense.} A person

commits eavesdropping when he:

(a) Uses an eavesdropping device to hear or record

all or any part of any conversation unless he does so

with the consent of any one party to such conversation

and at the request of a State’s Attorney; or

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(b) Uses or divulges, except in a criminal proceeding,

any information which he knows or reasonably should

know was obtained through the use of an eavesdropping

device.

Amended by P.A. 76-1110, § 1, eff. Aug. 28, 1969.

14-3. § 14-3. Exemptions.) The following ac-

tivities shall be exempt from the provisions of this Arti-

cle:

(a) Listening to radio, wireless and television com-

munications of any sort where the same are publicly

made;

(b) Hearing conversation when heard by employees

of any common carrier by wire incidental to the normal

course of their employment in the _ operation,

maintenance or repair of the equipment of such common

carrier by wire so long as no information obtained

thereby is used or divulged by the hearer;

(c) Any broadcast by radio, television or otherwise

whether it be a broadcast or recorded for the purpose of

later broadcasts of any function where the public is in

attendance and the conversations are overheard inciden-

tal to the main purpose for which such broadcasts are

then being made;

(d) Recording or listening with the aid of any device

to any emergency communication made in the normal

course of operations by any federal, state or local law en-

forcement agency or institutions dealing in emergency

services, including, but not limited to, hospitals, clinics,

ambulance services, fire fighting agencies, any public

utility, emergency repair facility, civilian defense es-

tablishment or military installation. As amended by act

approved Aug. 20, 1965. L.1965, p. 3198.

14-4. § 14-4. Sentence.) Eavesdropping is a Class

A misdemeanor.

Amended by P.A, 47-2638, § 1, eff. Jan. 1, 1973.

—2la—

14-5. § 14-5. Evidence Inadmissible.) Any

evidence obtained in violation of this Article is not ad-

missible in any civil or criminal trial, or any ad-

ministrative or legislative inquiry or proceeding, nor in

any grand jury proceedings; provided, however, that so

much of the contents of an alleged unlawfully in-

tercepted, overheard or recorded conversation as is

clearly relevant, as determined as a matter of law by the

court in chambers, to the proof of such allegation may

be admitted into evidence in any criminal trial or grand

jury proceeding brought against any person charged

with violating any provision of this Article. As amended

by act approved Aug. 24, 1965. L.1965, p. 3198.