People v. Schnurr

• Decision Date: 19 December 1990
• Docket Number: No. 2-88-1050,2-88-1050
• Citation: 564 N.E.2d 1336,206 Ill.App.3d 522
• Court: United States Appellate Court of Illinois
• Parties: , 151 Ill.Dec. 674 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Ethel Jean SCHNURR, Defendant-Appellant.

Page 1336

564 N.E.2d 1336

206 Ill.App.3d 522, 151 Ill.Dec. 674

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Ethel Jean SCHNURR, Defendant-Appellant.

No. 2-88-1050.

Appellate Court of Illinois,

Second District.

Dec. 19, 1990.

G. Joseph Weller, Deputy Defender, Steven E. Wiltgen, Office of the State Appellate Defender, Elgin, Richard W. Berry, for Ethel Jean Schnurr.

Paul A. Logli, Winnebago County State's Atty., Rockford, William L. Browers, Deputy Director, State's Attys. Appellate Prosecutor, Elgin, Mary Beth Burns, State's Attys. Appellate Service Com'n, Elgin, for the People.

Justice McLAREN delivered the opinion of the court:

Defendant, Ethel Jean Schnurr, was convicted of solicitation (Ill.Rev.Stat.1987, ch. 38, par. 8-1) and was sentenced to 10 years' imprisonment. Defendant now appeals both her conviction and her sentence. We affirm.

Defendant approached Vernial Trotter (Trotter) on or about October 19, 1987, and offered him $1,000 to murder her husband, Emil Schnurr (Emil). At approximately 5:30 that evening, Trotter informed the police about defendant's plan. Later that evening, Trotter was fitted with an electronic eavesdropping device, which he wore as he and defendant traveled to Emil's home in the early morning hours of October 20. Parts of the conversation between defendant and Trotter were recorded. Trotter entered Emil's home and waited briefly with Emil and a police detective. He then returned to defendant's vehicle and informed defendant that Emil was dead. Moments later, police stopped defendant's vehicle and arrested defendant. Trial by jury resulted in defendant's conviction for solicitation and a 10-year prison term.

Defendant first raises several issues which, by her own admission, were not raised in her motion for a new trial. These issues are (1) whether a proper foundation was laid for admission of the eavesdropping tape; (2) whether the court erred in admitting testimony regarding the accuracy of a transcript of the eavesdropping tape; (3) whether the court erred in refusing to allow testimony that Trotter was on probation for a prior conviction; (4) whether the court erred in admitting testimony that defendant had previously lied to her husband about matters having no connection to the case; and (5) whether the court erred in admitting testimony that defendant stood to inherit Emil's estate upon his death. Defendant acknowledges that failure to raise an error in both a trial objection and a written post-trial motion constitutes waiver of the issue. (See People v. Enoch (1988), 122 Ill.2d 176, 186-87, 119 Ill.Dec. 265, 522 N.E.2d 1124.) However, defendant argues that these issues should not be considered waived because the failure to raise the issues in the post-trial motion is a result of ineffective assistance of counsel.

To prove ineffective assistance of counsel, a defendant must establish that counsel's performance was deficient and that there is a reasonable probability that, but for counsel's errors, the outcome of the proceedings would have been different. (People v. Albanese (1984), 104 Ill.2d 504, 525, 85 Ill.Dec. 441, 473 N.E.2d 1246.) We find that defendant has failed to prove either prong of the test adopted in Albanese. Defendant's only argument regarding the deficiency of her counsel's performance is that the failure to raise in a post-trial motion all objections raised at trial drags counsel's performance below an objective standard of reasonableness. We do not find this persuasive. Defense counsel raised 19 issues in the post-trial motion. Counsel is not required to raise every trial objection in a post-trial motion. The inclusion of an issue is a matter of trial strategy; such strategy is entitled to great deference on review. (People v. Ptak (1990), 193 Ill.App.3d 782, 789, 140 Ill.Dec. 826, 550 N.E.2d 711.) Defendant concedes that counsel's performance was otherwise not objectionable. We conclude that defense counsel's performance was reasonable and effective.

In addition, defendant has failed to prove that she was prejudiced by her counsel's performance. In Enoch, the court found that the defendant failed to show ineffective assistance of counsel because he did not show that, but for counsel's failure to file a post-trial motion, he would not have been convicted. (Enoch, 122 Ill.2d at 202, 119 Ill.Dec. 265, 522 N.E.2d 1124; see also People v. Williams (1989), 180 Ill.App.3d 294, 300-01, 129 Ill.Dec. 228, 535 N.E.2d 993.) Under this analysis, we find that counsel's failure to raise the five contested issues in the post-trial motion did not affect the outcome of the trial and defendant's conviction.

Defendant's first contention is that the State failed to demonstrate a proper foundation for the admission of the eavesdropping tape. The original tape was sent to the Federal Bureau of Investigation (FBI), pursuant to court order, for "cleansing," i.e., removing static to enhance the sound of the tape. The court allowed the cleansing of the tape on the condition "that Mr. Berry [defense counsel] will be present when the copies are made, exchanged mutually between you [trial counsel]." Defendant now argues that admission of the tape was error because the State did not demonstrate that no changes were made affecting the integrity of the tape. Defendant cites People v. Nieves (1982), 92 Ill.2d 452, 65 Ill.Dec. 917, 442 N.E.2d 228, for the proposition that once some evidence of tampering or disturbing the integrity of a recording is introduced, the State must show a lack of alteration. Nieves dealt with section 108A-7(b) of the Code of Criminal Procedure of 1963, which provides that all recordings of eavesdropped conversations must be made available to the judge issuing the eavesdropping order immediately after the expiration of the order; the court is then to seal the recordings. (See Ill.Rev.Stat.1989, ch. 38, par. 108A-7(b).) Our supreme court determined that the purpose of this requirement was "to prevent tampering, alteration or editing and to preserve the integrity of the tapes." (Nieves, 92 Ill.2d at 462, 65 Ill.Dec. 917, 442 N.E.2d 228.) The court then held that, "[w]here the issue is immediacy, * * * if a defendant challenges the integrity and presents some evidence to support the challenge, the burden should shift to the State, * * * and the State must show that the tapes have not been altered." Nieves, 92 Ill.2d at 462, 65 Ill.Dec. 917, 442 N.E.2d 228.

Defendant now argues that the State must prove that the tape was not altered. Assuming, arguendo, the applicability of the Nieves standard, defendant has failed to introduce any evidence to challenge the integrity of the tape. While defendant has shown that the tape was sent to the FBI, she has not shown any evidence that the FBI disturbed the integrity of the tape. The fact that the tape was sent away is not a specific challenge to its integrity. The closest defendant comes to a challenge of the tape's integrity was stating that the first words she spoke to Trotter as he returned to the van were not the first words heard on the tape. This, however, was not raised in conjunction with a challenge to the tape and is insufficient in any event. We find no error in the admission of the eavesdropping tape.

The next issue not raised in the post-trial motion is whether it was error to place before the jury foundational testimony that a transcript of the eavesdropping tape was an accurate reflection of the contents of the tape. The court admitted testimony that the transcript accurately reproduced the content of the tape from Karen Larson, who transcribed the tape, Officer Pirages of the Rockford police department, who assisted in the transcription, and Trotter. Defendant acknowledges that evidence of the accuracy of a transcript is necessary for admission of the transcript. (SeePeople v. Dogoda (1956), 9 Ill.2d 198, 202, 137 N.E.2d 386; People v. Rogers (1989), 187 Ill.App.3d 126, 132-34, 135 Ill.Dec. 65, 543 N.E.2d 300.) However, defendant argues that evidence of the accuracy of the transcript was offered to the jury as substantive evidence and not merely as a foundation.

We find this argument unpersuasive. Before the transcripts were distributed to the jury and the tape was played, the court admonished the jury as followed:

"THE COURT: Don't look at them until I give you the statement, please.

Ladies and gentlemen, you're receiving a transcript of the tape for the limited purpose of aiding you in consideration of the contents of the tape you're going to hear shortly and should not be considered for any other purpose, that is the transcript, or should only be considered as a guide [sic ]. The tape should be and is a controlling factor. When and if you find conflicting facts between the tape and transcript, the transcript should not be considered as evidence."

We conclude that this admonition, which was tendered to the court by defendant, was adequate to inform the jury of the limited nature and value of the transcript. Given the fact that the accuracy of the transcript must be attested to, the court could do no more to limit the jury's consideration of the transcript. Defendant argues that testimony regarding the accuracy of the transcript should have been given outside the jury's presence. However, defendant can cite no authority for this position, and we see no reason to adopt this new rule. We find no error in the admission of the foundational testimony.

The next allegation not raised in the post-trial motion is that the court erred in limiting defendant's cross-examination of Vernial Trotter. Defendant elicited testimony from Trotter regarding Trotter's convictions of armed robbery, attempted murder, and burglary. However, when defendant asked Trotter if he were on probation for his latest burglary conviction, the State's objection was sustained by the court. Defendant now argues that the court's ruling erroneously limited her right to reveal Trotter's possible bias,...