The People v. Kurth , 34 Ill. 2d 387 ( 1966 )

Mr. Chief Justice Klingbiel

delivered the opinion of the court:

Marvin Kurth, Edward Tomek, Louis Cech, Robert Korycki, Harold Gurevitz, Joseph Polerecky and Dominic Prohm, were indicted by the grand jury of the criminal court of Cook County for the crime of conspiracy to obtain the money and property of Stickney Township by false pretenses. They were jointly tried by jury resulting in the acquittal of Prohm and verdicts and judgments of guilty as to the others. Kurth was sentenced to the penitentiary for a term of not less than 2 nor more than 5 years. Gurevitz, Tomek, Korycki and Polerecky were sentenced to jail for terms of six months, and Cech was sentenced to jail for a term of 30 days. A writ of error was issued to review the judgments of conviction as to all of the defendants who were found guilty.

Prior to trial this case had received wide-spread newspaper publicity which is well demonstrated by the fact that when the case was first set for trial the defendants requested a continuance because of adverse newspaper publicity and the court granted the continuance for a period of two weeks so that a new venire could be called. The court stated that in his opinion it would be reversible error, under the circumstances, to deny the continuance, and stated that he did not think that the court, or anyone else, should be required to call 200 prospective jurors in an attempt to find 12 impartial jurors. When the case was thereafter called for trial the court asked the first group of prospective jurors whether any of them remembered reading about the case or had heard of it on radio or television. Twenty-eight prospective jurors revealed that they had heard of the case and these jurors were temporarily segregated from the group which had not heard of the case and the examination of prospective jurors commenced with the latter group. After examination of the group had been completed, during which a considerable number of jurors were excused either for cause or by the exercise of peremptory challenges, the court interrogated the jurors who had knowledge of the case individually in chambers. As a result of this examination 12 prospective jurors were excused for cause. Of the next group of prospective jurors 44 had some knowledge of the case by reason of the publicity which it had received and as a result of the interrogation in chambers 23 of this group were excused for cause. A third group of prospective jurors was asked if they had heard of the case and so many of them stood up that the trial court stated that he thought it would be best to examine them one at a time. After several jurors had been examined in chambers and excused for cause the defendants moved to discharge the entire venire and change the venue from Cook County on the ground that it had become apparent that it would be difficult, if not impossible, to obtain an impartial jury. This motion was denied and after several more jurors were likewise excused on the ground that they had a knowledge of the case the motion was renewed and again denied. In the course of the interrogation of the prospective jurors in chambers it was brought out that the prospective jurors had been discussing the case in the assembly room and were passing around newspaper articles relating to the case and the difficulty which was being encountered in the selection of a jury. The defendants renewed their motion for a change of venue out of the county and requested the court to conduct an investigation of the events which had occurred in the assembly room. Again the motion was denied. The same pattern continued throughout the examination of the prospective jurors, with the end result that 234 prospective jurors were called, of which go were excused for cause. The defendants exhausted their 70 peremptory challenges before 12 jurors had been selected. It is apparent that in view of the facts disclosed by the record the task of obtaining an impartial jury was a difficult one and the court should have exerted every effort to insure that such a jury was obtained. In the light of this background we consider the defendants’ contention that they were prejudiced by the retention on the jury of a certain juror. The facts in support of this claim are as follows:

After 8 jurors had been selected the court called defense counsel into chambers and told them that he had been advised by the bailiff that one of the jurors had been crying because she was tired of sitting in the jury room. The judge refused to disclose the name of this juror and refused to excuse her. The following day the court again discussed this situation with counsel and told the attorneys that he had talked to the juror. She had told the court that she was nervous and also told him that she came from a home where her father was a heavy drinker and that every once in a while he would take the children and lock them in an attic and that ever since then she had had a fear of confinement. The juror told the court that the time she had spent in the jury room had made her nervous and that she had said that if she could stay out in the corridor she would feel better. One of the defense attorneys asked the court how this feeling on the part of the juror would affect her deliberations when the case was concluded and the jury was confined for the purpose of arriving at a verdict. The court said that he had questioned the juror about that and told her that he would try to cooperate during the trial so that if there were matters to be heard out of the presence of the jury he would bring the lawyers into chambers so that the jury could remain in open court and would have to spend as little time as possible in the jury room. The court said that he had told the juror that it would not be fair for either side for her to cut short her deliberations after a few hours of confinement and that she told the' judge that she did not think this would be a problem for her. Counsel then made a motion for the withdrawal of the juror and a mistrial on the ground that they could not receive a fair and impartial trial because of the condition of this juror. The court denied the motion.

The trial was lengthy and the issues were complicated. The selection of the jury commenced on January 21, 1963, the case continued to March 27th and the record contains more than 7000 pages. While we are unable to determine whether the deliberation of the juror in question was, in fact, influenced by her fear of confinement, in a case of this magnitude, where of necessity lengthy deliberation would normally be required to consider the evidence and the instructions of the court, the possibility of prejudice is high. The difficulty which the parties encountered in selecting a jury who had no preconceived notions concerning the case has already been related. To accept a juror who acknowledged a longstanding fear of closed places and to deny counsel the right to interrogate this juror, or even disclose her name, was, under the circumstances prejudicial error. Although we are reluctant to reverse these convictions for an error which occurred even prior to the reception of the voluminous testimony, We are of the opinion that the interests of justice require that a new trial be granted.

The other contentions relied upon by the defendants are that the court erred in denying motions for a mistrial which were made during the course of the trial on the ground of prejudicial publicity; that the court erred in admitting certain tape recordings in evidence; that the evidence was insufficient to establish the defendants’ guilt; that certain statements of alleged co-conspirators were improperly admitted; that the court unduly restricted the defendants’ right to cross-examination; that the defendant, Kurth, was sentenced to a term in excess of that provided by law; and that the court erred in failing to give a certain instruction. Of these allegations we deem it necessary to consider only the question of the tape recordings, for the other claims relate to matters that probably will not arise on a second trial.

Although it is not necessary to set forth all of the evidence, a brief statement of the issues is appropriate. The defendants, Tomek, Gurevitz, Korycki and Polerecky and Cech were officials of Stickney Township, and the defendant, Kurth, was the township committeeman for a regular political party and was the principal founder of a new political organization known as the Citizens Action Party, which was responsible for the election of the above officials and the election of Robert Smith as township supervisor. It was the theory of the State that the defendants conspired to defraud the township by paying exorbitant salaries and prices for services and goods and receiving “kickbacks” from the payees. The principal witness for the State was Robert Smith. He testified that after the election Kurth and the other defendants told him the plans they had made for obtaining money from employees and suppliers and it was proposed that all such money would be divided into ten shares, to be split between the six defendants and Smith, with Smith, Tomek, and Polerecky getting 2 shares and the others one share. Several months after the election Smith reported the scheme to a Chicago newspaper and it was arranged to obtain tape recordings of conversations between Smith and the defendants. The first of such recordings was of a meeting in Kurth’s office at which Smith and all of the defendants except Polerecky were present. Prior to the meeting Smith had concealed a small radio transmitter on his person and a receiver and tape recorder had been installed in Smith’s office in the same building. The second and third recordings were of telephone conversations between Smith and a secretary from whom a kickback was allegedly to be obtained and between Smith and Kurth. These recordings were made with the aid of an electronic device which made it possible to hear both sides of the telephone conversation. The last recording was of a conversation between Smith, Kurth and the secretary and was made in the same manner as the first recording. All of these recordings were admitted in evidence over the defendants’ objection. Without detailing the conversations disclosed by the recordings we believe it sufficient to say that the evidence, if improperly admitted, was prejudicial to the defendants.

The issue of whether the recordings were properly admitted depends upon a construction of certain provisions of article 14 of the Criminal Code of 1961. Section 14 — 1 provides as follows:

“(a) Eavesdropping device.

An eavesdropping device is any device capable of being 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 restoration of the deaf or hard-of-hearing to normal or partial hearing.

(b) Eavesdropper.

An eavesdropper is any person, including law enforcement officers, who operates or participates in the operation of any eavesdropping device contrary to the provisions of this Article . ..”

Section 14 — 2 provides as follows:

“A person commits eavesdropping when he:

(a) Uses an eavesdropping device to hear or record all or any part of any oral conversation without the consent of any party thereto; or

(b) Uses or divulges any information which he knows or reasonably should know was obtained through the illegal use of an eavesdropping device.”

Section 14 — 5 provides that any evidence obtained in violation of the article is not .admissible in any civil or criminal trial. It is undisputed that Smith, who was one of the parties to all of the recorded conversations, consented to the recording of these conversations, and the State contends that his consent alone is sufficient to make the recording admissible. This claim finds some support in certain language contained in People v. Dixon, 22 Ill.2d 513, which was not necessary to the decision in that case. The Dixon case has been cited with approval in US. v. Pullings, 321 Fed. 2d 287, (7th cir. 1963) and in Magee v. Williams, 329 Fed. 2d 470 (7th cir. 1964). The defendants contend, on the other hand, that Smith’s consent alone is insufficient to permit the use of the recordings and argue that the statute must be read to require the consent of all of the participants in the conversation.

Many Federal cases and cases from other jurisdictions hold that if one party to a recorded conversation consents to the recording the evidence is admissible, even though the consenting party is the one who is making the recording or carrying a concealed transmitting device without the knowledge of the other parties. These authorities are of little assistance to us in construing the above provisions for they do not involve a statute in any way similar to the one in this case.

A reference to the Committee Comments sheds some light on the intent of the legislature in adopting this statute. The Committee states that the reason for the legislation is to protect the privacy of the individual, the right to which is considered by many to be one of the fundamental civil liberties of our system. The comments also point out that no one seems to favor eavesdropping by private individuals and the issue is whether or not law enforcement officers should be permitted to do it. In its comments the Committee draws a distinction between the Illinois statute and the provisions of the New York law, and notes that New York permits law enforcement officers to eavesdrop under supervision of the courts while the Illinois statute retains in substance the complete prohibition against eavesdropping which had previously been in effect in Illinois. It is apparent that the Committee which drafted these provisions was opposed to eavesdropping as an unwarranted invasion of the privacy of individuals. Having in mind this expression of legislative intent, we believe that it is unreasonable to suppose that the legislature intended that the consent of the party who is surreptitiously recording the conversation of others can make the recorded conversations admissible against the other parties, who were unaware that their conversations were being recorded.

In our opinion the true construction of these statutory provisions lies between the opposing constructions urged by the State and the defendants. It seems to us that the reasonable construction of the statute, which will insure the right of privacy, is that any party who has not consented to the recording or transmission of his conversation may bar its admission in evidence against him. Other parties to the conversation who may have consented to the recording or transmission cannot object to the use of the recorded conversation. Thus, for example, in a four-party conversation three of the parties may know that the conversation is being recorded and may consent to the recording while the fourth party may be unaware of this fact. As to “any party” who has consented the recorded conversations are admissible, but as to the one party who has not consented, the recording is inadmissible. This construction carries out the legislative intent and follows the language used by the legislature without the necessity of construing the word “any” to mean “all”. This construction has been suggested to be the fair construction of the statute. (Cleary, Handbook of Illinois Evidence, sec. ed., sec. 10.10, page 164.) In the present case only Smith, who was instrumental in obtaining the recordings, consented to the transmission and recording of these conversations. Since none of the other parties to the conversations had any knowledge that the conversations were being recorded and did not consent to such recording, the recordings are inadmissible against them. To the extent that People v. Dixon, 22 Ill.2d 513 may be construed to hold to the contrary, it is overruled.

The judgment of the criminal court of Cook County is reversed and the cause is remanded for a new trial in accordance with the views expressed in this opinion.

Reversed and remanded.