People v. Arkebauer

• Court: Appellate Court of Illinois
• Writing for the Court: LEWIS
• Citation: People v. Arkebauer, 198 Ill.App.3d 470, 555 N.E.2d 1162, 144 Ill.Dec. 643 (Ill. App. 1990)
• Decision Date: 05 June 1990
• Docket Number: No. 5-89-0077,5-89-0077
• Parties: , 144 Ill.Dec. 643 The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Roger A. ARKEBAUER, Defendant-Appellee.

Page 1162

555 N.E.2d 1162

198 Ill.App.3d 470, 144 Ill.Dec. 643

The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Roger A. ARKEBAUER, Defendant-Appellee.

No. 5-89-0077.

Appellate Court of Illinois Fifth District.

June 5, 1990.

Michael Kiley, State's Atty., Shelbyville, Kenneth R. Boyle, Director, Stephen E. Norris, Deputy Director, Ellen Eder Irish, Staff Atty., Office of the State's Attys. Appellate Prosecutor, Mt. Vernon, for plaintiff-appellant.

Michael B. Metnick, D. Peter Wise, Diana N. Cherry, Richard D. Frazier, Metnick and Barewin, Springfield, for defendant-appellee.

Presiding Justice LEWIS delivered the opinion of the court:

The State appeals from an order suppressing the defendant's, Roger A. Arkebauer's, statements. In issue is whether the circuit court's determination that the defendant's statements were involuntary because the statements were induced by the promise of immunity was against the manifest weight of the evidence.

Before considering the propriety of the circuit court's suppression of the defendant's statements, we must first address the defendant's motion to strike portions of the State's brief which was raised in the defendant's brief. The defendant contends that portions of the State's statement of facts must be stricken from its brief as the facts contained on numerous pages therein are from documents not properly of record, i.e., facts that were obtained from the grand-jury transcript, from police reports, and from transcripts of tape recordings of court-authorized overhears. We decline to grant the defendant's motion as the material was properly included in the record on appeal; however, we will not rely upon this evidence in our determination of the issue presented. People v. Brackett (1986), 144 Ill.App.3d 442, 98 Ill.Dec. 488, 494 N.E.2d 610.

In this case, the defendant was promised on January 15, 1988, that he would not be prosecuted for the offenses of solicitation to commit murder (Ill.Rev.Stat.1987, ch. 38, par. 8-1(a)) and conspiracy to commit murder (Ill.Rev.Stat.1987, ch. 38, par. 8-2(a)) by the assistant State's Attorney for Macon County and by the Illinois State Police, if he would cooperate in the investigation of Raymond Ruhl's plot to murder his wife. Subsequently, on April 12, 1988, a bill of indictment for these offenses was returned against the defendant in Shelby County. The defendant filed a motion to suppress several statements given to the Illinois State Police and the Macon County assistant State's Attorney as a result of his agreement with the Macon County assistant State's Attorney, which was granted by the circuit court. It is from this order of the court that the State appeals.

At the hearing on the motion to suppress the defendant's statements, the Honorable Jerry Patton, circuit judge for the Sixth Judicial Circuit, testified that on January 15, 1988, at about 2:30 p.m., it came to his attention by way of a telephone call from either Jack Ahola or Gerry Sheehy, that an order for an eavesdrop was needed. Sometime later, Judge Patton met with Officer McClearen, Jack Ahola, the defendant, and possibly Officer Bensyl and Gerry Sheehy. At this meeting, the judge was presented with two complaints, one for a search warrant of Raymond Ruhl's residence and one for a court-authorized eavesdrop. Judge Patton inquired as to why the wiretap was brought in Macon County as the earlier wiretap had been brought in Champaign County, and the judge was told that time was of the essence for the eavesdrop and that the defendant worked in Decatur, Macon County, Illinois. The defendant was introduced to the judge, and the judge inquired of the defendant as to whether he understood his consent to the eavesdrop to which the defendant responded affirmatively. Neither the judge nor anyone in the judge's presence discussed granting immunity to the defendant at this time. The judge admitted that he had no knowledge of any statements that were made to the defendant outside of his presence. As a result of the defendant's and Officer McClearen's statements, Judge Patton issued a search warrant and an order for an eavesdrop.

Jack Ahola testified that he was the assistant State's Attorney in charge of the criminal division for Macon County, Illinois. According to Ahola, at about 7 a.m. on January 15, 1988, he met with Agents McClearen and Bensyl in his office to discuss this case. The agents were aware that the defendant was a pivotal figure in a proposed murder plot, and the decision was made that the defendant should be brought in and asked to give information which would enable the agents to arrest Raymond Ruhl. At this meeting, Ahola and the agents discussed making a deal with the defendant wherein he would not prosecute the defendant, if the defendant cooperated. The details of the agreement with the defendant were not discussed between the three of them, but Ahola stated that it was thought that the defendant could provide information to obtain an eavesdrop order, a search warrant and an arrest warrant.

After the meeting, the agents left Ahola's office and went to Caterpillar Tractor Company to pick up the defendant. The agents brought the defendant back to Ahola's office at approximately 9 a.m. Ahola told the defendant that if the defendant cooperated, "we" would not prosecute him, and the defendant agreed to help. Ahola denied that he promised the defendant immunity, and he stated that he specifically never discussed transactional immunity with the defendant.

Ahola informed the defendant that they were investigating Raymond Ruhl and Ruhl's attempts to have his wife murdered. Ahola did not advise the defendant of his Miranda warnings (Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694), and he told the defendant that they were not trying to prosecute him. The defendant talked with Ahola for a couple of hours, during which the defendant related facts regarding the contemplated murder plot of Mrs. Ruhl. After Ahola's discussion with the defendant, he accompanied the defendant to Judge Patton's chambers where, with the help of the defendant, Ahola obtained a search warrant and an eavesdrop order. While in Judge Patton's presence, immunity was not discussed with the defendant by him or by anyone else. Neither was the promise not to prosecute the defendant discussed before the judge.

After going before the judge, the defendant participated in the eavesdrop by calling Ruhl from the State's Attorney's office. According to Ahola, the defendant gave them much information and cooperated. Ahola stated that the defendant had done everything expected of him with the exception that it was understood that the defendant would testify against Ruhl at some future date. However, Ahola expected the defendant's cooperation to run for some months in the future as there was no expectation that Ruhl would die, and Ahola's promise not to prosecute was to last throughout the prosecution of Raymond Ruhl. Ahola explained that the investigation of Ruhl encompassed events which had occurred in four separate counties, Shelby County, Christian County, Champaign County, and Macon County.

When Ahola discussed his promise not to prosecute with the defendant, Ahola did not tell the defendant that he would be immunized in Macon or any other county. Additionally, Ahola did not tell the defendant that their discussion only applied to Macon County. Ahola could not recall if the defendant was present when he and Agent Bensyl discussed which county the charges against Ruhl would be filed. Ahola admitted that he could not say with absolute certainty that the term "immunity" was not used in his discussion with the defendant.

Sometime after January 15, 1988, but before the defendant was indicted in Shelby County, Guy Casey, an attorney, indicated to Ahola that he represented the defendant. Ahola advised Casey that he had agreed not to prosecute the defendant as long as the defendant cooperated and told the truth. Casey asked Ahola if formal immunity had been granted to the defendant, and Ahola denied that this was done. Ahola explained that for formal immunity to be granted, he would have to present a motion for immunity to the court and an order would have to be entered.

On cross-examination, Ahola testified that he assumed that Ruhl would be prosecuted in Macon County at the time he talked to the defendant. Ahola admitted that even though there were different counties involved, it was still the same police agency involved in the investigation. Ahola did not tell the defendant, after Ruhl's death, that his promise to the defendant had ended. Ahola stated that he had no further conversation with the defendant after January 15, 1988. Ahola acknowledged that the indictments brought against the defendant in Shelby County were substantially the same charges for which Ahola had promised the defendant he would not be prosecuted.

David McClearen testified that he was an agent with the Department of the State Police in the Division of Criminal Investigation (DCI). He had received information that Raymond Ruhl was attempting to hire a person to kill his wife, and as a result of his investigation of Ruhl, McClearen had contact with the defendant. McClearen, accompanied by Agent Lee Bensyl, first saw the defendant on January 15, 1988, at the security office at the Caterpillar Tractor Company in Decatur. Prior to the meeting with the defendant that day, McClearen and Bensyl had met with Gerry Sheehy, an investigator for the State's Attorney's office, and with Jack Ahola, at the State's Attorney's office, to discuss the subsequent meeting with the defendant. McClearen did not recall the word "immunity" being used during the discussion with Sheehy and Ahola, but he did recall that Ahola agreed not to prosecute the defendant in Macon County in exchange for the defendant's cooperation. It was McClearen's understanding that the defendant's cooperation was to include his helping...