People v. Swimley
372 N.E.2d 887, 14 Ill. Dec. 608, 57 Ill. App. 3d 116 (1978)
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Rule of Law:
An Assistant State's Attorney is authorized to grant consent for one-party eavesdropping when the State's Attorney is unavailable, as they are generally clothed with the same powers and privileges; additionally, evidence of prior uncharged offenses demonstrating intent is admissible in a solicitation to commit murder trial.
Facts:
- In early November 1973, Marlene Swimley's son, Joe Enderle (13), and neighbor Kevin Senne (15) discussed finding someone to kill Marlene's husband, Duane Swimley, and Kevin suggested Tom Mangione.
- Kevin Senne contacted John DeSpain in California seeking a hitman, and Marlene later arranged for John to fly to Chicago to commit the murder, prepaying $269.25 for airline tickets for him and his cousin.
- John DeSpain became frightened and did not travel to Chicago; Marlene expressed agitation, remarking on a previous occasion where a hired man had absconded with $1200 she had paid to kill her husband.
- After being contacted by John DeSpain's stepfather and Tom Mangione, law enforcement learned of Marlene's solicitation for murder.
- On January 23, 1974, Investigator Joseph Saladino of the State's Attorney's office, posing as 'Jimmy Sunshine,' contacted the Swimley residence and arranged a meeting with Marlene for the next day.
- On January 24, 1974, Marlene met Saladino, confirmed she wanted her husband 'evaporated' (murdered), provided photos and details of her husband, and agreed to pay $5,000 for the assassination, giving Saladino $100 as a down payment. She also discussed details like location (Germany) and a contact name to lure him.
Procedural Posture:
- Marlene Swimley was charged by indictment with the offense of solicitation to commit murder in a state trial court.
- Swimley filed a motion to suppress evidence obtained through eavesdropping, arguing improper authorization, which the trial court denied.
- Swimley also filed a motion to prevent abuse of the grand jury process, which the trial court denied.
- Following a trial by jury, Marlene Swimley was found guilty of solicitation to commit murder.
- The trial court sentenced Marlene Swimley to the penitentiary for a term of three to nine years.
- Marlene Swimley appealed her conviction to the Appellate Court of Illinois, First District, as the appellant.
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Issue:
Is a one-party consent eavesdropping authorization valid when granted by a First Assistant State's Attorney in the absence of the State's Attorney, and can evidence of a defendant's prior attempts to solicit the same crime be admitted to establish intent?
Opinions:
Majority - Mr. JUSTICE LINN
Yes, a First Assistant State's Attorney can properly authorize one-party consent eavesdropping, and evidence of prior attempts to commit the same crime is admissible to establish intent. The court affirmed the conviction, holding that an Assistant State's Attorney is generally 'clothed with all the powers and privileges of the State's Attorney' and can act with full power in the absence or unavailability of the State's Attorney, as supported by prior Illinois case law such as People v. Nahas. Eavesdropping with one-party consent does not violate the Fourth Amendment, and at the time, the Illinois statute did not require specific standards for authorization beyond the State's Attorney's request, which due process allows (People v. Richardson). The court found the authorization request was not based on false information. Furthermore, the court determined that evidence of Marlene's prior act of pointing a gun at her husband and pulling the trigger was admissible as tending to prove her intent to commit murder, which was a critical fact in issue. Such evidence, even if it discloses another crime, is permissible when it establishes motive, intent, identity, or absence of mistake (People v. Dewey). The incident was not considered too remote in time. The court also rejected claims of improper grand jury process, uncorrected false witness testimony (as falsity was not established), abuse of discretion regarding witness exclusion, refusal to call a hostile witness, and improper closing arguments (finding they were based on evidence or reasonable inferences). Finally, the court concluded that an entrapment defense was incompatible with the defendant's denial of intent, and that the failure to give specific jury instructions on accomplice testimony and immunity was not error given the general instructions on witness credibility and extensive cross-examination (People v. Parks). The court found the evidence, particularly the recorded conversation, overwhelmingly sufficient to prove guilt beyond a reasonable doubt.
Analysis:
This case significantly affirms the delegated authority of Assistant State's Attorneys, solidifying their power to act in place of the chief prosecutor for statutory authorizations like eavesdropping. It reinforces the exception to the general rule against admitting evidence of prior bad acts, emphasizing that such evidence is highly relevant and admissible when it directly establishes a defendant's intent, motive, or absence of mistake in the crime charged. The decision highlights the judiciary's deference to prosecutorial discretion within statutory bounds, especially in the context of investigative techniques designed to combat serious crimes. This ruling provides a clear precedent for the admissibility of similar past conduct to prove a defendant's state of mind, which is crucial in solicitation cases where intent is paramount.
