People v. Wagener

• Citation: 752 N.E.2d 430,196 Ill.2d 269,256 Ill.Dec. 550
• Decision Date: 01 June 2001
• Docket Number: No. 88843.,88843.
• Parties: The PEOPLE of the State of Illinois, Appellee, v. Michael WAGENER, Appellant.
• Court: Supreme Court of Illinois

752 N.E.2d 430

196 Ill.2d 269

256 Ill.Dec. 550

The PEOPLE of the State of Illinois, Appellee, v. Michael WAGENER, Appellant.

No. 88843.

Supreme Court of Illinois.

June 1, 2001.

James Geis, Office of the State Appellate Defender, Chicago, for appellant.

James E. Ryan, Attorney General, Springfield, and Richard A. Devine, State's Attorney, Chicago (William L. Browers, Assistant Attorney General, Chicago, and Renee G. Goldfarb, Katherine Blakey Cox, William D. Carroll and Alan J. Spellberg, Assistant State's Attorneys, of counsel), for the People.

Justice FREEMAN delivered the opinion of the court:

Defendant, Michael Wagener, was charged with first degree murder (720 ILCS 5/9-1(a) (West 1994)) and concealment of a homicidal death (720 ILCS 5/9-3.1 (West 1994)). After a bench trial in the circuit court of Cook County, he was found guilty but mentally ill of both offenses. The court imposed consecutive prison sentences of 50 years for his murder conviction and 5 years for his conviction of concealment of a homicidal death. The appellate court affirmed. No. 1-98-1561 (unpublished order under Supreme Court Rule 23). We granted defendant leave to appeal (177 Ill.2d R. 315), and affirm his convictions and sentence.

BACKGROUND

Defendant does not challenge the sufficiency of the evidence of his guilt, nor does he contend that the circuit court's conclusion that he was guilty but mentally ill, rather than legally insane, was against the manifest weight of the evidence. Accordingly, we will set out only the facts relevant to the issues raised in this appeal. For context, we note that the State proved the following facts in its case in chief. On December 2, 1994, defendant fatally bludgeoned and strangled his wife, Mary, in their home in Chicago. He wrapped her body in plastic and hid it under the back porch of the house. He then drove to Menominee, Wisconsin, with his daughter, Ashley, where he checked into a hotel using an assumed name and address. He was arrested at the hotel on December 5. While in police custody, he gave a statement in which he admitted killing his wife and secreting her body at their house.

Defendant's trial strategy was an insanity defense. See 720 ILCS 5/6-2 (West 1994). He called his two sisters as witnesses. Both stated that defendant blamed the September 1989 loss of his job at a major Chicago law firm on a conspiracy to "ruin his life." Defendant believed that people were putting chemicals in his work area so that he would itch and sneeze all day, "messing with" papers in his office and talking about him behind his back, "doing things" to his telephone, and following him. In subsequent conversations, defendant stated that the firm had "enlisted the CIA, the FBI, the post office, just about everybody to continue to ruin his life." He believed that there were listening devices in his house and spent thousands of dollars to have the house "debugged" multiple times. His sisters tried to get defendant psychological help, but he refused.

Defendant was also extremely overprotective of his children and fearful for their safety. When his son, Richard, died of sudden infant death syndrome in February 1994, defendant believed his wife had killed the child and he became very depressed. Although defendant and his wife began to go to marriage counseling in the summer of 1994, defendant remained depressed and continued to believe that his wife had killed their son.

One of defendant's sisters, Cathy Michiels, had several telephone conversations with defendant on December 3, 1994, the day after the murder. In the course of the conversations, defendant told her that his daughter was with him and was all right, but when Michiels asked him if he had hurt his wife, he told her "it was bad, that it was very bad, it was extreme." Defendant told Michiels that his wife had confessed to killing their son. Defendant told Michiels that he needed a lawyer. Michiels referred him to Thomas Gooch, an Illinois attorney.

Michiels was subsequently contacted by a different attorney, who told her that defendant wanted Michiels to come to Menominee and get Ashley before defendant turned himself in. Michiels contacted Gooch to ask if he knew anything about the arrangement. Michiels testified that Gooch told her that "he was aware of it, that he thought that [defendant] was—that it wasn't really an attorney that called him. He thought it was [defendant] pretending, you know, to be an attorney and he wasn't driving up to Menominee so he had contacted the Chicago Police Department and called them." Michiels did drive to Menominee to take custody of Ashley.

During cross-examination, the State asked Michiels, over objection, about another conversation she had with attorney Gooch. Michiels denied recalling that Gooch had told her that defendant had "asked him what the punishment was for committing a capital crime and crossing state lines." However, she admitted that it was possible that she had so told a police officer.

The defense also called three expert witnesses on the topic of defendant's sanity. Drs. Larry Heinrich, Marvin Schwarz, and Matthew Markos all testified that at the time of the crime defendant was insane— he could not appreciate the criminality of his offense, nor could he conform his conduct to the requirements of the law. Each believed that defendant had a delusional psychotic disorder, and that he had killed his wife because he believed his wife meant to kill Ashley, just as he believed she had killed their other child.

Each expert testified that he had reviewed the police reports generated in connection with the case. One of these reports contained the statement with which the State had cross-examined Michiels— that attorney Gooch had told her that defendant had asked him about the penalty for committing a capital crime and then crossing state lines. The State cross-examined all of the defense experts with this statement, over defendant's continuing objection to the line of questioning.

In rebuttal the State presented an expert, Dr. Carl Wahlstrom. Dr. Wahlstrom agreed with the defense experts that defendant was suffering from a "persecutory" type of delusional disorder. However, he testified that defendant was sane at the time of the crime. One of the reasons for his conclusion was defendant's ability to "very carefully conceal the crime." Specifically, Dr. Wahlstrom relied in part on the fact that when defendant arrived in Menominee, "he contacted an attorney regarding the issue of having—regarding everything that is involved and the commission of two [sic] capital crimes."

The court found defendant guilty but mentally ill of first degree murder and concealment of a homicidal death. At a subsequent hearing, defendant was sentenced to consecutive terms of 50 years' imprisonment for his murder conviction and 5 years' imprisonment for his concealment conviction. The appellate court affirmed. No. 1-98-1561 (unpublished order under Supreme Court Rule 23). We granted defendant leave to appeal. 177 Ill. 2d R. 315.

ANALYSIS

Defendant argues that his conviction should be reversed for violations of his attorney-client privilege. In supplemental briefing, defendant contends that his sentence should be vacated because section 5-8-4(b) of the Unified Code of Corrections (730 ILCS 5/5-8-4(b) (West 1994)), under which his sentences were made consecutive, is unconstitutional.

I. Attorney Client Privilege

Defendant first contends that he is entitled to a new trial. He argues that his conversation with attorney Gooch was protected by the attorney-client privilege, and that the disclosure in the police report that he had asked attorney Gooch about the penalty for committing a capital crime and crossing state lines breached his privilege. He maintains that the State's use of this evidence at trial constituted reversible error. Although the State does not admit that the statements to attorney Gooch were privileged, it contends that assuming that they were initially privileged, defendant waived the privilege. We agree.

We assume, arguendo, that defendant's conversation with attorney Gooch was privileged at the time it occurred. We also assume that the privilege remained intact despite the disclosure by Gooch to defendant's sister, her subsequent disclosure to the police, and the recording of that statement in the written report. Indeed, the State does not maintain that any privilege which might have attached to defendant's statement was waived by any of these acts. Instead, the State asserts that defendant waived any privilege by giving the police report containing the statement to his testifying expert witnesses.

We begin with the general rule that experts may be cross-examined for the purpose of discrediting their testimony, as well as to ascertain which factors were taken into account and which were disregarded in arriving at these conclusions. People v. Williams, 181 Ill.2d 297, 329, 229 Ill.Dec. 898, 692 N.E.2d 1109 (1998). Opposing counsel is allowed to cross-examine an expert with respect to material which he has reviewed but upon which he did not rely. People v. Page, 156 Ill.2d 258, 275, 189 Ill.Dec. 371, 620 N.E.2d 339 (1993), quoting People v. Pasch, 152 Ill.2d 133, 179, 178 Ill.Dec. 38, 604 N.E.2d 294 (1992). Indeed, counsel may venture beyond the facts supported by the record in inquiring as to what changes of conditions would affect his opinion. Williams, 181 Ill.2d at 329, 229 Ill.Dec. 898, 692 N.E.2d 1109; Page, 156 Ill.2d at 275, 189 Ill.Dec. 371, 620 N.E.2d 339; Pasch, 152 Ill.2d at 179, 178 Ill.Dec. 38, 604 N.E.2d 294. Thus the general rule would allow the State to cross-examine the experts with the content of a report included among the materials which they considered in forming their opinions.

Defendant does not dispute the above law, but contends that general rules regarding cross-examination of experts are beside the point in this case. He contends that it is irrelevant that the police...