People v. Seehausen

• Decision Date: 09 February 1990
• Docket Number: No. 2-88-0721,2-88-0721
• Citation: 550 N.E.2d 702,193 Ill.App.3d 754
• Court: United States Appellate Court of Illinois
• Parties: , 140 Ill.Dec. 817 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Scott C. SEEHAUSEN, Defendant-Appellant.

Page 702

550 N.E.2d 702

193 Ill.App.3d 754, 140 Ill.Dec. 817

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Scott C. SEEHAUSEN, Defendant-Appellant.

No. 2-88-0721.

Appellate Court of Illinois Second District.

Feb. 9, 1990.

Krupa & Braun, Chtd., John R. Krupa, Paul S. Braun, Flossmoor, for Scott C. Seehausen.

James E. Ryan, DuPage County State's Atty., Wheaton, William L. Browers, Deputy Director, Mary Beth Burns, State's Attorneys Appellate Prosecutors, Elgin, for the People.

Presiding Justice UNVERZAGT delivered the opinion of the court:

Defendant, Scott C. Seehausen, was charged by indictment with the offenses of attempted murder (Ill.Rev.Stat.1985, ch. 38, par. 8-4(a)), solicitation to commit murder (Ill.Rev.Stat.1985, ch. 38, par. 8-1(a)), and conspiracy to commit murder (Ill.Rev.Stat.1985, ch. 38, par. 8-2(a)). Following a jury trial, defendant was convicted of attempted murder and solicitation to commit murder and was subsequently sentenced to 16 years' imprisonment. Defendant filed a post-trial motion which was denied. This appeal followed.

On appeal, defendant argues: (1) that the grand jury's indictment of him was improperly obtained; (2) that the trial court erred in failing to suppress the "fruits" of the eavesdropping authorization; and (3) that the trial court erred in failing to charge the jury with Illinois Pattern Jury Instructions, Criminal, No. 3.17 (2d ed. 1981) (hereinafter IPI Criminal 2d), dealing with accomplice testimony.

The following facts are material to our decision. In April 1986, defendant obtained $27,500 from Stanley Fry on the pretense that defendant would invest the money in stock. But, in fact, defendant misappropriated the funds. In early June 1986, Fry began pressuring defendant for the return of his money. As a consequence, defendant hired Jeffrey Witzke to deliver to Fry on June 12, 1986, a sandwich tainted with sodium cyanide. Defendant offered to pay Witzke $50,000 for this act. Defendant told Witzke that he wanted to murder Fry because Fry had amassed a fortune with money defendant had given him and, yet, Fry had never shared with defendant any of the money Fry had made with defendant's funds.

On June 11, 1986, Fry received a visit at his office from Witzke. Witzke told Fry about defendant's plan to kill him. Fry contacted the Westmont police department, and he and Witzke subsequently met with Detective Musial and Captain Brindac of that department. Witzke related to Musial defendant's plans to kill Fry. Witzke then gave Musial tapes Witzke had made on June 11 of his conversations with defendant.

On the morning of June 12, Witzke contacted Detective Musial to tell him that defendant planned to kill Fry that evening. Later that morning, a circuit judge granted Musial's petition for authorization of the use of eavesdropping devices to record conversations between defendant and Fry and between defendant and Witzke. Both Fry and Witzke consented to the use of the eavesdropping devices. A small recorder was put on the telephone in Fry's office. Witzke was to carry a small tape recorder in his jacket pocket.

It was defendant's defense at trial that Witzke had purchased the cyanide and had tainted the sandwiches with the poison. Additionally, the defense tried to show that defendant's original plan was to use methol propanol, a drug, instead of cyanide merely to knock Fry out for a few hours. The evidence showed that defendant did on one occasion discuss with Witzke using methol propanol on a sandwich but that Witzke later learned it was cyanide defendant intended to place on the sandwich. Also, the tape recordings which were made of the conversations occurring between Witzke and defendant on June 12 and which were played to the jury at trial indicated it was defendant who placed the cyanide on the sandwich intended for Fry and that it was defendant's intent to kill Fry. At trial, forensic scientist Paul Titus, who performed tests on the sandwich in question, testified that the sandwich contained a lethal dose of cyanide.

On the evening of June 12, the sandwich laced with cyanide was delivered to Fry at his office by Witzke. Pursuant to the direction of an officer stationed inside Fry's office, Witzke used Fry's telephone to call defendant on defendant's car phone. Witzke told defendant that Fry had eaten the sandwich and collapsed but that he was still breathing. Defendant then instructed Witzke to hold Fry's nose and place his hand over Fry's mouth until Fry was no longer breathing. This conversation, which was recorded via the small recorder placed on Fry's telephone, was also played to the jury. Shortly after this phone conversation, defendant was arrested in his car.

Subsequently, a three-count indictment was obtained against defendant for attempted murder, solicitation to commit murder, and conspiracy to commit murder. The charge of conspiracy to commit murder was dismissed prior to trial.

After the case had proceeded to trial, the jury instruction conference was held. During that conference, defendant tendered IPI Criminal 2d No. 3.17, dealing with accomplice testimony. The trial court refused to charge the jury with the instruction, ruling that Witzke was not an accomplice under the terms of the instruction because he was not "involved in the commission of a crime."

Following trial, the jury returned a verdict of guilty to the charges of solicitation to commit murder and attempted murder. Later, the trial judge sentenced defendant to 16 years of imprisonment. Defendant then filed this appeal, claiming three contentions of error.

Defendant first argues that the grand jury's indictment of him was improperly obtained because it was influenced by the prosecuting attorney's improper comments in unsworn testimony. Defendant maintains that the prosecutor's comments were prejudicial and constituted the sole means by which grand jurors' questions concerning critical areas of the investigation were answered. Therefore, the defendant asserts, the trial court erred in denying defendant's motion to dismiss the indictment. The State counters that the comments of which defendant complains are taken out of context, were not improper, and were made to advise the grand jury, which is the prosecutor's function.

Although, generally, a defendant may not challenge the validity of an indictment returned by a legally constituted grand jury, courts have carved out certain exceptions to this rule. (People v. Rodgers (1982), 92 Ill.2d 283, 287, 65 Ill.Dec. 929, 442 N.E.2d 240.) One of these exceptions permits defendants to challenge indictments where there are clear allegations of prosecutorial misconduct. (People v. Linzy (1979), 78 Ill.2d 106, 109, 34 Ill.Dec. 326, 398 N.E.2d 1.) However, to support a dismissal of an indictment, the defendant must show that the prosecutorial misconduct complained of resulted in actual and substantial prejudice to the defendant. People v. Boyle (1987), 161 Ill.App.3d 1054, 1065, 113 Ill.Dec. 158, 514 N.E.2d 1169; People v. Martin-Trigona (1982), 111 Ill.App.3d 718, 726, 67 Ill.Dec. 291, 444 N.E.2d 527.

In both his brief and reply brief, defendant refers to certain statements made by the prosecutor during the grand jury proceeding. Defendant claims that these statements were incorrect and misleading, were not made by the prosecutor in his role as advisor, and, therefore, were unsworn testimony. We disagree with defendant for several reasons. First, defendant has distorted the statements of which he complains by presenting them out of context. Second, the statements were made during or after Detective Musial's testimony and constituted either answers to jurors' questions or comments aimed at aiding and advising the jurors in their investigation. Third, the factual information contained in the prosecutor's statements had already, for the most part, been placed before the grand jury by Detective Musial during his testimony.

Defendant's reliance on United States v. Gold (N.D.Ill.1979), 470 F.Supp. 1336, to argue that a prosecutor cannot submit unsworn testimony before the grand jury while also acting as the agent of the prosecuting authority is totally misplaced. In Gold, the prosecutorial misconduct, which resulted in a dismissal of defendants' indictment, was based on a conflict of interest. A staff attorney from the Environmental Protection Agency (EPA) acted as a special attorney for the justice department in a criminal investigation while also working on the EPA's administrative proceeding against the same defendants. In these capacities, he appeared both as a prosecutor and as a witness before the grand jury although he never obtained permission from the justice department for his dual roles. The district court determined that in attempting to perform these dual roles, the attorney was a lawyer laboring under a conflict of interest and, therefore, a person who was unauthorized to be in the grand jury room. A dismissal of the indictment was required.

No such role reversal occurred in the instant case. The prosecutor did not act as both prosecutor and witness before the grand jury but rather as prosecutor and advisor, a function of his role as prosecutor. (People v. Linzy, 78 Ill.2d 106, 110, 34 Ill.Dec. 326, 398 N.E.2d 1.) To compare the conduct of the prosecutor in the case at bar with the prosecutor in Gold is ludicrous and requires no further consideration.

Even assuming, however, that some of the prosecutor's comments could be deemed improper testimony, that testimony would not entitle defendant to a dismissal of the indictment. The grand jury is expected to indict an accused only if it decides that there is probable cause for believing that he has committed an offense. (People v. Rodgers (1982), 92 Ill.2d 283, 288, 65 Ill.Dec. 929, 442 N.E.2d 240.) Here, Detective Musial testified as to the intricate plan devised by the defendant to murder Stanley Fry and defendant's solicitation of Jeffrey Witzke to aid...