brief and argument for defendant-appellant › 2010 › 03 › napoleon-williams … · nature of...
TRANSCRIPT
No. 4-99-0049
IN THE
ApPELLATE COURT OF ILLINOIS
FOURTH JUDICIAL DISTRICT
Defendant-Appellant.
) Appeal from the Circuit Court of) the Sixth
Judicial Circuit, Macon) County, Illinois.))) No. 97 -CF -467)) Honorable) Scott B. Diamond,) Judge Presiding.
PEOPLE OF THE STATE OFILLINOIS,
Plaintiff-Appellee,
-vs-
NAPOLEON WILLIAMS,
BRIEF AND ARGUMENT FOR DEFENDANT-APPELLANT
MICHAEL J. PELLETIERState Appellate Defender
GARY R. PETERSONDeputy Defender
JUDITH L. LIBBYAssistant Appellate DefenderOffice of the State Appellate DefenderFourth Judicial District400 West Monroe Street, Suite 303P.O. Box 5240Springfeld, IL 62705-5240(217) 782-3654
COUNSEL FOR DEFENDANT-APPELLANT
POINTS AND AUTHORITIES
I.
THEALL-ENCOMPASSING DEFINITION OF "CONVRSATION"WITHIN
THE ILLINOIS EAVESDROPPING STATUTE RENDERS THE OFFENSE
CONSTITUTIONALLY VOID FOR VAGUENESS.
Kolender v. Lawson, 461 U.S. 352,103 S.Ct. 1855,75 L.Ed.2d 903 (1983) ..................................... 22
City of Chicago v. Morales, 177 Ill.2d 440, 687 N.E.2d 53 (1997),aff'd, 527 U.S. 41, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999) ...... 20-21
Garza v. Navistar International Transportation Corp., 172 Il1.2d 373,
666 N.E.2d 1198 (1996) .................................... 18
Maddux v.Blagojevich, 233 Il1.2d 508,911 N.E.2d 979 (2009) .......... 14
People v. Beardsley, 115 Ill.2d 47, 503 N.E.2d 346 (1986) .............. 16
People v. Coleman, 227 Il1.2d 426,882 N.E.2d 1025 (2008) .......... 15-16
People v. Falbe, 189 Il1.2d 635, 727 N.E.2d 200 (2000) .... . . . . . . . . . . . . . 14
People v. Fisher, 184 Ill.2d 441, 705 N.E.2d 67 (1998) ................. 21
People v. Gervasi, 89 Il1.2d 522, 434 N.E.2d 1112 (1982) ............... 16
People v. Herrington, 163 Ill.2d 507,645 N.E.2d 957 (1994) ............ 16
People v. Maness, 191 Il1.2d 478, 732 N.E.2d 545 (2000) ............... 21
People v. P.H., 145 Il1.2d 209, 582 N.E.2d 700 (1991) . . . . . . . . . . . . . . . . . . 21
People v. Robinson, 172 Il1.2d 452, 667 N.E.2d 1305 (1996) . . . . . . . . . . . . . 20
People v. Shinkle, 128 Ill.2d 480, 539 N.E.2d 1238 (1989) .............. 16
In Re Torski C., _ Ill.App.3d _, 918 N.E.2d 1218(No. 4-08-0952 November 17,2009) . . . . . . . . . . . . . . . . . . . . . . . . . . 21
In re Marriage of Almquist, 299 Ill.App.3d 732,704 N.E.2d 68(3rd Dist. 1998) ........................................ 18-20
McCann v. Presswood, 308 Ill.App.3d 1068,721 N.E.2d 811(4th Dist. 1999) ........................................... 23
-1-
People v. Caban, 318 Ill.App.3d 1082, 743 N.E.2d 600 (rt Dist. 2001) .... 23
People v. Nestrock, 316 Ill.App.3d 1, 735 N.E.2d 1101 (2nd Dist. 2000) .... 17
People v. Nunez, 325 Ill.App.3d 35, 756 N.E.2d 941(2nd Dist. 2001) ........................................ 17, 20..
People v. O'Dell, 84 Ill.App.3d 359,405 N.E.2d 809 (1980) . . . . . . . . . . . . . . 16
People v. Ramos, 316 Ill.App.3d 18, 735 N.E.2d 1094 (2nd Dist. 2000) . . . . . 22
People v. Taher, 329 Ill.App.3d 1007, 769 N.E.2d 1021(1 st Dist. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
People v. Wilson, 196 Ill.App.3d 997,554 N.E.2d 545 (rt Dist. 1990) ..... 16
People v. Woollums, 93 Ill.App.3d 144, 416 N.E.2d 725 (1981) . . .. . . . . . . . 16
Plock v. Board of Educ. of Freeport School Dist. No. 145,_ Ill.App.3d _, _ N.E.2d _(No. 2-08-0879 December 8, 2009), 2009 WL 4757384 . . . . . . . . 17, 23
DeBoer v. Village of Oak Park, 90 F.Supp.2d 922(N.D.Ill. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . 17
Fuller v. Decatur Pub. Sch. Bd. of Educ. Sch. Dist. 61,251 F.3d 662 (7th Cir. 2001) ................................. 21
U.S. CONST., amend. V .......................................... 21
U.S. CONST., amend. XiV ........................................ 21
U.S. CONST. amend. XiV, § 1 ..................................... 14
ILL. CONST. 1970, art. 1, § 2 ............................,....... 14, 21
405 ILCS 5/1-104.5 (West 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
720 ILCS 5/14-1(d) (West 1994) ................................ 17, 21
720 ILCS 5/14-2 (West 2004) ..................................... 15
720 ILCS 5/14-1(d) (West 1996) ................................... 20
P.A. 88-677, § 20, eff. Dec. 15, 1994 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17,21
88th IlL. Gen. Assem., Senate Proceedings, April 21, 1994, 139 ......... 18
-11-
II.
THE COURT ERRED IN RESENTENCING MR. WILLIAMS FOR A
VIOLATION OF PROBATION BASED ON CONDUCT AFTER His
PROBATION HAD BEEN VIOLATED, AND NOT ON THE ORIGINAL
SENTENCING OFFENSE OF EAVESDROPPING.
People v. Johnson, 347 Ill.App.3d 570, 807 N.E.2d 1171 (rt Dist. 2004) . . . 25
,People v. Risley, 359 Ill.App.3d 918, 834 N.E.2d 981 (3rd Dist. 2005) . . . . . . 25
People v. Young, 138 Ill.App.3d 130, 485 N.E.2d 443 (4th Dist. 1985) ..... 25
720 ILCS 5/14-4(a) (West 2008) ................................... 25
730 ILCS 5/5-6-4(e) (West 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
730 ILCS 5/5-8-1(a)(7) (West 2008) ................................ 25
-111-
NATURE OF THE CASE
Following a jury trial, Napoleon Williams was convicted on August 26,
1998, of two Class 4 felony counts for eavesdropping, in violation of section 14-
2(a) ofthe Criminal Code of 1961, 720 ILCS 5/14-2(a), 5/14-1 (West 1996). (Vol.
I, C. 7-8; Vol. III, C. 467-68; Vol. XIII, R. 220) The circuit court admitted Mr.
Williams to 30 months' probation on December 17,1998. (Vol. V, C. 88-93), and
the defendant on January 15, 1999, appealed his conviction and sentence in No.
4-99-0049. (Vol. III, C. 550-51)
The court subsequently terminated that disposition of probation after a
hearing on May 6,1999, as a result of the State's February 24,1999 petition to
revoke probation. (Vol. III, C. 567, 571-72; Vol. XVI, R. 2; Vol. xix, R. 137-38,
145-46) During a break in the proceedings and immediately before the court was
to resentence the defendant, Mr. Williams fled from the courthouse. (Vol. XiX,
R. 151-52)
(The State on June 28, 1999, moved to dismiss the direct appeal under the
fugitive dismissal rule. This Court granted the motion on July 20, 1999,
dismissing Mr. Williams's direct appeal without prejudice.)
Some 10 years later, on May 22, 2009, the circuit court, having regained
jurisdiction over Mr. Williams on April 9, 2009, resentenced him to 3 years'
imprisonment in the Department of Corrections on each count of eavesdropping,
to run concurrently. (Vol. V, C. 23, 29; Vol. XXII, R. 2-8; Supp. Vol. i, R. 113) On
May 29, 2009, the circuit court denied the defendant's motion to reconsider
sentence. (Vol. V, C. 27-28; Vol. XXV, R. 16) The defendant appealed the
probation revocation and new sentence on June 2, 2009, in No. 4-09-0404. (Vol.
V, C. 32, 35; Vol. XX, R. 16)
-1-
On motion of the Offce of the State Appellate Defender (OSAD), counsel
on appeal, this Court reinstated the initial appeal (i.e., of the jury trial and
sentence) on August 20, 2009. Upon subsequent motion by OSAD, this Court
consolidated both appeals and ordered that they be filed under the initial
appellate court number, 4-99-0049.
Issues are raised attacking the constitutionality ofthe Illnois eavesdrop-
ping statute.
Section 14-2(a) of the Criminal Code of 1961 (Code) in force at the time
of the charges in the instant case provided in relevant part:
" §14-2 Elements of the Offense;***
A person commits eavesdropping when he:
(a) Uses an eavesdropping device to hear or
record all or any part of any conversation unless he
does so (1) with the consent of all of the parties to
such conversation or (2) in accordance with Article
108A or Article 108B of the 'Code of Criminal Proce-
dure of 1963,' approved August 14,1963, as amended;
or ***." 720 ILCS 5/14-2(a) (West 1996).
Section 14-1 of the Code defined these terms as used in the eavesdropping
statute:
" §14-1 Definition
(a) Eavesdropping device.
An eavesdropping device is any device capable
of being used to hear or record oral conversation
-2-
whether such conversation is conducted in person, by
telephone, or by any other means; (Plrovided, how-
ever, that this definition shall not include devices
used for the restoration of the deaf or hard-of- hear-
ing to normal or partial hearing.
* * *
(d) Conversation.
For the purposes of this Article, the term
("lconversationl'l means any oral communication
between 2 or more persons regardless of whether one
or more of the parties intended their communication
to be of a private nature under circumstances justify-
ing that expectation." 720 ILCS 5/14-1 (West 1996).
-3-
ISSUES PRESENTED FOR REVIEW
i.
The all-encompassing definition of "conversation" within the Illinois
eavesdropping statute renders the offense constitutionally void for vagueness.
II.
The court erred in resentencing Mr. Williams for a violation of probation
based on conduct after his probation had been violated, and not on the original
sentencing offense of eavesdropping.
-4-
JURISDICTION
Napoleon Williams appeals from a final judgment of conviction in a
criminal case after a jury triaL. Mr. Wiliams also appeals to this Court from a
final judgment revoking his probation and resentencing him to a total of 3 years'
imprisonment in the Illinois Department of Corrections.
The circuit court admitted Mr. Williams to 30 months' probation on
December 17, 1998. (VoL. V, C. 88-93), and the defendant on January 15, 1999,
timely filed his Notice of Appeal from this conviction and sentence in No. 4-99-
0049. (VoL. III, C. 550-51) The court subsequently terminated that disposition
of probation after a hearing on May 6,1999. (VoL. III, C. 567, 571-72; VoL. XVII,
R. 2; VoL. xix, R. 137-38, 145-46) During a break in those proceedings,
immediately before the resentencing, Mr. Williams fled from the courthouse.
(VoL. xix, R. 151-52) This Court granted the State's motion to dismiss the direct
appeal under the fugitive dismissal rule, without prejudice, on July 20, 1999.
On May 22,2009, the circuit court, having regained jurisdiction over Mr.
Williams, resentenced him to a total of 3 years' imprisonment in the Depart-
ment of Corrections. (VoL. V, C. 23, 29; VoL. XXII, R. 2-8; Supp. VoL. i, R. 113) On
May 29, 2009, the circuit court denied the defendant's motion to reconsider
sentence. (VoL. V, C. 27-28; VoL. XXV, R. 16) The defendant timely filed a Notice
of Appeal ofthe probation revocation and new sentence on Ju~e 2, 2009 (VoL. V,
C. 32), and OSAD timely filed an Amended Notice of Appeal on June 10, 2009
(VoL. V, C. 35), in No. 4-09-0404. (VoL. V, C. 32, 35; VoL. XX, R. 16)
This Court reinstated the jury - trial appeal August 20, 2009, upon o SAD' s
motion, and the Court consolidated both appeals under No. 4-99-0049. Thus,
-5-
jurisdiction lies in this Court pursuant to article VI, section 6, of the Illinois
Constitution, and Supreme Court Rules 603 and 606.
-6-
Mr. Williams was "unhappy, upset, and argumentative," and he wanted
to know when he would see his children. Chesko told him he would let the
defendant know on the following Monday what had been worked out regarding
visitation. (VoL. XIII, R. 36) The caseworker continued: "I could hear his voice in
the background while I was talking to him(,l and I surmised from that that was
a tape. I called him at the radio stationLl and I could hear the voiceLl and I kind
of assumed he was broadcasting." (Ibid.)
Chesko asked Mr. Williams ifhe was "on the radio"; the defendant replied
in the negative. Chesko never consented to being recorded. (VoL. XIII, R. 36-37)
Nor did he ever receive notice from the Clerk of the Circuit Court of Macon
County informing him that his conversation had been recorded in accordance
with a court order. (VoL. XIII, R. 38, 99, 103, 188) Mr. Williams never informed
Chesko that his conversation was being recorded. (VoL. XIII, R. 39, 188) A
-7-
-8-
ment, modified phones, etc. (VoL. XIII, R. 66) When Simpson and the others
accompanying him arrived at the residence to be searched, he handed the
defendant a copy of the warrant. (Ibid.) During the search of the residence
Simpson seized from the back bedroom of the residence People's Exhibits Nos.
1 and 2, the cassettes that had been played for the jury. (VoL. XIII, R. 67)
On June 24, 1998, Simpson was listening to Decatur radio station 99.7 FM
and heard the defendant discussing a court case which involved his children.
Over objection, the investigator testified that during that broadcast Mr.
Wiliams had admitted having taped the telephone conversations ofboth Chesko
and Nichols. (VoL. XIII, R. 69)'
THE DEFENSE - NAPOLEON WILLIAMS
The defendant testified that the two audiotapes played at trial-People's
Exhibits Nos. 1 and 2-were tapes of radio broadcasts he had made over his
Black Liberation Radio station. Mr. Willams explained that he had been"on air"
when David Chesko called him on his radio-station telephone phone line, and
that the defendant included Chesko as part of the broadcast then occurring.
(VoL. XIII, R. 179-80, 182, 184) Wanda Nichols had also talked to Mr. Williams
on the radio-station line. (VoL. XIII, R. 182-83, 186-87)
VERDICT - POSTTRIAL - SENTENCING
The jury found Mr. Williams guilty of both counts of eavesdropping. (VoL.
III, C. 467-68; VoL. XIII, R. 220)
The defendant's posttrial motion raised issues of: (1) reasonable doubt; (2)
the prosecutor's questioning how the witnesses "felt" when they learned their
conversations with Mr. Williams had been taped; (3) the prosecutor's asking the
jurors to put themselves in the roles ofthe complaining witnesses; (4) the court's
-9-
-10-
On December 17, 1998, the circuit court conducted Mr. Williams's
sentencing hearing. (Vol. XV, R. 3-90) Afer making corrections to the Presen-
tence Investigation report, hearing evidence in aggravation and mitigation,
hearing arguments of counsel, and-listening to the defendant's allocution, the
court admitted Mr. Williams to probation for a term of 30 months. (VoL. III, C.
520-43; VoL. XV, R. 3, 5-66, 70-76, 88-90) The court imposed a fine of $1,621,
credited $70 toward that fine due to the 14 days the defendant had spent in
pretrial detention for these charges, and taxed costs to Mr. Williams of $449.
(VoL. XV, R. 89) In addition to the usual terms and conditions of probation, the
court specifically ordered Mr. Williams to submit 10 job applications each week
he was unemployed, beginning as soon as he was released from the Macon
County jail, and to perform 120 hours of public service work. Mr. Williams
assented to these conditions. (VoL. XV, R. 90)
PROBATION REVOCATION - MR. WILLIAMS FLEES
The first report of violation of probation was filed against Mr. Williams
on February 18, 1999. (VoL. XVI, R. 2) Amongst these allegations was one that
the defendant had failed to submit 10 job applications per week while he
remained unemployed. (VoL. III, C. 567) The State filed a petition to revoke
probation on February 23, 1999, which basically mirrored the above allegations.
(VoL. III, C. 571-72) On May 6,1999, the court conducted an evidentiary hearing
on the petition to revoke. (VoL. xix, R. 3-128) The court determined that Mr.
Williams had violated the 10-job-applications-per-week condition of probation
and terminated that disposition. (VoL. XIX, R. 8-13,38-39,104-05,127-28, 137-
38,145)
-11-
The parties agreed to an immediate resentencing of the defendant. (VoL.
xix, R. 149-51) The court granted a recess so that counsel could determine, inter
alia, whether the defendant would be eligible for anextended-term sentence.
(VoL. xix, R. 151) When the hearing reconvened, counsel reported that during
the break, Mr. Williams had fled, apparently leaving the courthouse in a
westerly direction. The court continued the sentencing hearing and issued an
arrest warrant for the defendant. (VoL. xix, R. 151-52)
RESENTENCING - MOTION TO RECONSIDER SENTENCE
Mr. Williams became subject to the jurisdiction of Macon County in April
of 2009. (VoL. xxii, R. 2~8) On May 22,2009, the court found that it had made
a mistake in initially granting probation to Mr. Williams and by denying the
prosecutor's motion to increase bond upon Mr. Williams's conviction for
eavesdropping. (Supp. VoL. i, R. 111) Primarily concerned that its ruling "not
reward bad behavior" (i.e., the defendant's breaking his contract with the court
that if allowed out of bail he would continue to appear in court) or constitute a
mere "slap on the wrist," the circuit court resentenced Mr. Wiliams to 3 years'
concurrent terms of imprisonment in the Department of Corrections on each
count of eavesdropping. The court awarded a total of 70 days' sentence credit for
time spend in pretrial detention. (VoL. V, C. 23, 29; Supp. VoL. i, R. 9-10,111-13)
Defense counsel alleged in his motion to reconsider sentence that the
court had failed to give certain items of mitigation significant enough weight
and that, therefore, the sentence was excessive. (VoL. V, C. 27 -28) At the hearing
on this motion on May 29, 2009, the court reiterated its concern with the
defendant's having run out of the courtroom and not reappearing for 10 years,
-12-
and for íts not wanting to reward this bad behavior. The court, thus, denied the
motion to reconsider sentence. (VoL. XXV, R. 7, 16)
-13-
ARGUMENT
i.
THE ALL-ENCOMPASSING DEFINITION OF "CONVRSATION"
WITHIN THE ILLINOIS EAVESDROPPING STATUTE RENDERS THE
OFFENSE CONSTITUTIONALLY VOID FOR VAGUENESS.
"Void for vagueness" is a concept derived from the notice requirement of
the due process clause of both federal and State law. U.S. CONST. amend. XiV,
§ l;ILL. CONST. 1970, art. 1, § 2. A statute can be impermissibly vague for either
of two independent reasons: (1) if it fails to provide people of ordinary intelli-
gence a reasonable opportunity to understand what conduct it prohibits; and (2)
if it authorizes or even encourages arbitrary and discriminatory enforcement.
As a general rule, a litigant whose conduct falls squarely within a statute's
prohibition cannot complain of the vagueness of the law as applied to others.
Moreover, in order to succeed on a vagueness challenge that does not involve a
first amendment right, a party must establish that the statute is vague as
applied to the conduct for which the party is being prosecuted. See generally
Maddux v. Blagojevich, 233 Ill.2d 508,544, 911 N.E.2d 979, 999-1000 (2009)
(Karmeier, J., dissenting, joined by Garman, J.). Whether a statute is void for
vagueness must be determined in the factual context of each case. People v.
Falbe, 189 Ill.2d 635, '639, 727 N.E.2d 200, 204 (2000). The definition of
"conversation" within the amended Illinois eavesdropping statute encompasses
all kinds of innocent conduct and, thus, must be found to be void for vagueness.
As a result, Napoleon Williams's conviction for eavesdropping must be reversed
and vacated.
-14-
THE ILLINOIS EAVESDROPPING STATUTE
The Illinois General Assembly enacted what our Illinois Supreme Court
recently termed a'''rigorous'' eavesdropping statute, which prohibits recording
conversations unless all the parties consent, or one party consents and prior
judicial authorization is obtained. People v. Coleman, 227 Ill.2d 426, 434, 882
N.E.2d 1025, 1029 (2008). Section 14-2(a) of the Criminal Code of 1961,
examined in Coleman, provided:
"A person commits eavesdropping when he:
(1) Knowingly and intentionally uses an
eavesdropping device for the purpose of hearing or
recording all or any part of any conversation or
intercepts, retains, or transcribes electronic commu-
nication unless he does so (A) with the consent of all
of the parties to such conversation or electronic
communication or (B) in accordance with Article
108A or Article 108B of the 'Code of Criminal Proce-
dure of 1963' * * *." 720 ILCS 5/14-2 (West 2004).
Article 108A concerns the judicial supervision of the use of eavesdropping
devices, and article 108B concerns electronic criminal surveillance. Coleman,
227 Ill.2d at 434, 882 N.E.2d at 1029.
Our Supreme Court in Coleman was interpreting the Illinois eavesdrop-
ping statute in effect in 2004 in comparison with its federal counterpart, but the
Court cited pre-1994 cases in making the sweeping observation that "eavesdrops
made with one-party consents are not in violation of the fourth amendment":
-15-
"The defendant raises no federal constitutional
issue in this case. Indeed, there is no constitutional
issue here: '(EJavesdrops made with one-party con-
sents are not in violation of the fourth amendment.'
See People v. O'Dell, 84 Ill.App.3d 359, 364, 405
N.E.2d 809 (1980); accord People v.Woollums, 93
Ill.App.3d 144, 149,416 N.E.2d 725 (1981)." (Empha-
sis added.) Coleman, 227 Ill.2d at 434 n.l, 882 N.E.2d
at 1029 n.l.
Thus, in Illinois,"one-party consent" historically ruled th~ day, and
appellate courts found few violations of the eavesdropping statute. For example,
the eavesdropping statute was not violated by a suspect in the back of a squad
car taping the police officers sitting in the front. People v. Beardsley, 115 Ill.2d
47,503 N.E.2d 346 (1986). An unaltered extension phone was held not to be an
"eavesdropping device" under the statute. People v. Shinkle, 128 Ill.2d 480,539
N.E.2d 1238 (1989).1 And a radio scanner on which the defendant's mobile
telephone conversation was overheard was also held not to be an "electronic
device" within the meaning of eavesdropping statute. People v. Wilson, 196
Ill.App.3d 997, 554 N.E.2d 545 (rt Dist. 1990). In addition, transcripts of
statements made by the defendant to the complaining witness which were
recorded by the Quincy police department were held not to violate the
eavesdropping statute. People v. Herrington, 163 Ill.2d 507, 645 N.E.2d 957
(1994).
1But cf. People v. Gervasi, 89 Ill.2d 522, 527, 434 N.E.2d 1112 (1982)
(extension telephone with speaking element removed from mouthpiece held tobe "eavesdropping device" proscribed by statute).
-16-
The judicial landscape changed in 1994, however, when the term
"conversation" was defined for the first time in the eavesdropping statute:
"(d) CONVRSATION.
For the purposes of this Article, the term
conversation means any oral comm unication between
2 or more persons regardless of whether one or more
of the parties intended their communication to be of
a private nature under circumstances justifying that
expectation." 720 ILCS 5/14-1(d) (West 1994). (Amen-
ded by P.A. 88-677, § 20, eff. Dec. 15, 1994.)
This amendment has been interpreted to "prohibit( 1 the recording of any
conversation without the consent of all parties regardless of any party's
expectation of privacy." People v. Nunez, 325 Ill.App.3d 35,48, 756 N.E.2d 941,
952 (2nd Dist. 2001). See also People v. Nestrock, 316 Ill.App.3d 1, 7, 735 N.E.2d
1101, 1107 (2nd Dist. 2000) (by adding the definition of "conversation" to the
statute the legislature extended the coverage ofthe eavesdropping statute to all
conversations, regardless of whether they were intended to be private).
Since the enactment of this amendment, appellate courts have found
some interesting scenarios which constitute violations of the eavesdropping
statute. See, e.g., Plock v. Board of Educ. of Freeport School Dist. No. 145,_
Ill.App.3d _, _ N.E.2d _ (No. 2-08-0879 December 8, 2009), 2009 WL
4757384, in which special educat:tn teachers successfully sued to enjoin their
School District from enforcing its policy of taping the teachers' classroom
sessions. The Second District affrmed the grant of injunctive relief, finding that
the District's policy violated the eavesdropping statute. But see also DeBoer v.
Village of Oak Park, 90 F.supp.2d 922,924 (N.D.Ill. 24, 1999) (taping of public
-17-
prayer event held at village hall held not to violate the eavesdropping stat-
ute-prohibited "conversations" are those between individuals in attendance at
public events, and not the remarks made by the speakers at such events to those
in the audience). Thus, just where courts draw the line between conduct which
violates the statute and that which does not can be fluid, as seen in the
appellate court's observations in In re Marriage of Almquist, 299 Ill.App.3d 732,
704 N.E.2d 68 (3rd Dist. 1998).
Almquist concerned a divorcing father's suit for indirect criminal
contempt against his wife, Deborah, for, inter alia, playing his "suicide tape" in
the background while he attempted to exercise his court-ordered right to
telephone visitation with their daughter. The Third District held that the
mother's playing of Frank's "suicide tape" in the background during the
telephone conversation between father and daughter did not constitute a
"conversation" as defined in the eavesdropping statute. The appellate court
opined:
"W è are mindful that a statute which defines
the very terms it uses should be construed according
to those definitions. Garza v. Navistar International
Transportation Corp., 172 Ill.2d 373, 666 N.E.2d
1198 (1996). However, the addition ofa definition of
'conversation' to the eavesdropping statute was an
effort narrowly tailored to the goal of removing any
expectation of privacy element from the crime of
eavesdropping. See 88th ILL. Gen. Assem., Senate
Proceedings, April 21, 1994, at 139 (statement of
Senator Dillard), and May 20, 1994, at 42 (statement
-18-
of Senator Dudycz). It was not the legislature's intent
to provide a definition of 'conversation' so broad as to
encompass any audible expression whatsoever. Ac-
cordingly, we hold that Deborah (the mother/Frank's
wifel was not participating in a 'conversation' within
the meaning of the eavesdropping statute when she
played a recording of Frank's voice for the purpose of
interfering with his telephone visitation. Therefore,
because the eavesdropping statute prohibits only the
recording of conversations, the trial court committed
no error in admitting that portion of Frank's tape
which recorded the 'suicide tape.' " Almquist, 299
Ill.App.3d at 737, 704 N.E.2d at 71. (Emphasis
added.?
(However, the Third District also found that the trial court had erred by
admitting the portions of Frank's tapes of just his conversations with his
daughter, because he had not obtained his daughter's consent; that conduct the
Court found had violated the eavesdropping statute. Almquist, 299 Ill.App.3d
at 736-37, 704 N.E.2d at 71.)
STANDARD OF REVIEW
Mr. Williams was charged with violating the eavesdropping law in 1996
i.e., after the eavesdropping statute was amended to include the definition of
"conversation":
2Almquist offers only this explanation of the "suicide tape": Frank
"explained that the tape was a recording of his own voice he had madeapproximately 1 ~ years earlier." 299 Ill.App.3d at 734, 704 N.E.2d at 69.
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"any oral communication between 2 or more
persons regardless of whether one or more of
the parties intended their communication to be".,..-
of a private nature under circumstances justify- :~''':-:
ing that expectation." 720 ILCS 5/14-1(d) (West
1996).
Appellate courts are required to apply the version of the eavesdropping statute
in effect at the time the allegedly illegal recording was made. Nunez, 325
Ill.App.3d at 48, 756 N.E.2d at 952.
Thus, Mr. Williams's case presents an issue of statutory construction.
When construing a statute, appellate courts are to determine and give effect to,
the legislature's intent. People v. Robinson, 172 Ill.2d 452,457,667 N.E.2d 1305,
1307 (1996). In doing so, reviewing courts look to the plain language of the
statute. If the statute's plain meaning is clear and unambiguous, then courts of
review apply the statute without using further tools of statutory construction.
(Ibid.)
Because statutory construction is a question of law, the appellate court
reviews the circuit court's order de novo. Robinson, 172 Ill.2d at 457,667 N.E.2d
at 1307. See also Almquist, 299 Ill.App.3d at 735, 704 N.E.2d at 70 (admissibil-
ity of questioned tape involved construction of the eavesdropping statute,
thereby presenting a question of law for de novo review).
"CONVERSATION" AS DEFINED IN THE EAVESDROPPING STATUTE
Is VOID FOR VAGUENESS
Statutes are presumed constitutionaL. City of Chicago v. Morales, 177
Ill.2d 440,448,687 N.E.2d 53, 59 (1997), aff'd, 527 U.S. 41, 119 S.Ct. 1849, 144
L.Ed.2d 67 (1999). However, although courts are to construe enactments so as
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A statute that does not implicate any First Amendment rights cannot be
held invalid under the overbreadth doctrine. People v. Taher, 329 Ill.App.3d
1007, 1015-16,769 N.E.2d 1021,1027-28 (rtDist. 2002). However, a sentencing
provision that fails to state with suffcient clarity the consequences of violating
a criminal statute may be void for vagueness under the facts of a certain case.
Taher, 329 Ill.App.3d at 1016, 769 N.E.2d at 1028 (because statute at issue did
not involve First Amendment activity, court determined whether it was
unconstitutionally vague in light of the conduct for which defendant was
convicted); People v. Ramos, 316 Ill.App.3d 18, 26, 735 N.E.2d 1094,1100-01 (2nd
Dist. 2000); see also Kolender v. Lawson, 461 U.S. 352, 357-58, 103 S.Ct. 1855,
75 L.Ed.2d 903 (1983) (holding that a penal statute must adequately define a
criminal offense so as to discourage arbitrary and discriminatory enforcement).
Counsel for Mr. Williams provided the lower court with numerous
examples of innocent conduct which could be punished under the Illinois
eavesdropping statute as a felony because of the broad definition of "conversa-
tion." See, e.g.,
. "Mommy and Daddy Go to Jail" for videotaping their child's
ball game that also recorded an audio track (VoL. X, R. 12);
. "The Wedding Photographer Goes to Jail" for video/audio-
taping a guest who complains, "Hey, get that thing off of
me" (VoL. X, R. 13-14);
. "Sheriff Andy Goes to Jail" for booking, e.g., a DUI suspect
in the jail while the booking information is being recorded,
unknown to the suspect (VoL. X, R. 14-15);
. "The Preacher Goes to J ail" (VoL. X, R. 15); and
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. "Sam and Susie Student Go to JaiL." 3 (Ibid.) (See also VoL.
II, C. 317-23-Defendant's Exhibit: "Eavesdropping" Scen-
arios Under 7(20 ILCS 5/14-11, et seq.)
The remedy for an unconstitutional amendment is restoration of the
statute as it existed prior to the amendment. McCann v. Presswood, 308
Ill.App.3d 1068, 1073, 721 N.E.2d 811,815 (4th Dist. 1999); People v. Caban, 318
Ill.App.3d 1082, 1085, 743 N.E.2d 600, 603 (1st Dist. 2001). Consequently, here,
because the portion of the eavesdropping statute defining "conversation" is
unconstitutionally void for vagueness, that portion of the statute must be
stricken. Without that definition of "conversation," and in accordance with pre-
1994 amendment case law, the defendant's conduct here would not have been
held to be in violation of the eavesdropping statute. Therefore, this Court should
vacate Napoleon Williams's conviction for eavesdropping.
3And if "Sam" and "Susie" were enrolled in a special education program,then they could be going to jail with members of their district's school board. See
Plock v. Board of Educ. of Freeport School Dist. No. 145, supra at 17.
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II.
THE COURT ERRED IN RESENTENCING MR. WILLIAMS FOR A
VIOLATION OF PROBATION BASED ON CONDUCT AFTER His
PROBATION HAD BEEN VIOLATED, AND NOT ON THE ORIGINAL
SENTENCING OFFENSE OF EAVESDROPPING.
Mter a 10-year hiatus, Napoleon Williams became subject to the
jurisdiction of Macon County in April of 2009. (VoL. XXII, R. 2-8) On May 22,
2009, the court found that it had made a mistake in initially granting probation
to Mr. Williams. (Supp. VoL. I, R. 111) Primarily concerned that its ruling "not
reward bad behavior" (i.e., the defendant's breaking hís contract with the court
that if allowed out on bail he would continue to appear in court) or constitute a
mere "slap on the wrist," the circuit court resentenced Mr. Williams to the
maximum of 3 years' concurrent terms of imprisonment in the Department of
Corrections on each count of eavesdropping, a Class 4 felony. (VoL. V, C. 23,29;
Supp. VoL. I, R. 9-10, 111-13)
Defense counsel alleged in his motion to reconsider sentence that the
court had failed to give certain items of mitigation significant enough weight
and that, therefore, the sentence was excessive. (VoL. V, C. 27-28) At the hearing
on this motion on May 29, 2009, the court reiterated its concern with the
defendant's having run out of-the courtroom and not reappearing for 10 years,
and for its not wanting to reward this bad behavior. The court, thus, denied the
motion to reconsider sentence. (VoL. XXV, R. 7, 16)
STANDARD OF REVIEW
Trial courts are granted wide discretion in fashioning an appropriate
sentence for each criminal defendant. As a result, a trial court's sentence will
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not be disturbed on review absent an abuse of discretion. People v. Johnson, 347
Ill.App.3d 570,573-74, 807 N.E.2d 1171, 1175 (rt Dist. 2004).
When sentencing a defendant after a revocation of probation, the trial
court "may impose any other sentence that was available * * * at the time of
initial sentencing." 730 ILCS 5/5-6-4(e) (West 2008). Further, although the trial
court has the right to consider the conduct which led to the revocation when
sentencing the defendant, the trial court must not sentence the defendant for
the conduct underlying the revocation. People v. Young, 138 Ill.App.3d 130, 139,
485 N.E.2d 443, 448 (4th Dist. 1985). Instead, the "court may consider the
defendant's conduct while on probation in reassessing his rehabilitative
potentiaL" People v. Risley, 359 Ill.App.3d 918, 920, 834 N.E.2d 981, 983 (3rd.
Dist.2005).
In this case, the trial court was authorized to sentence Napoleon Wiliams
from as little as 1 year imprisonment up to a maximum term of 3 years in the
Department of Corrections. See 720 ILCS 5/14-4(a) (West 2008); 730 ILCS 5/5-8-
l(a)(7) (West 2008). The court imposed the maximum sentence, 3 years'
imprisonment. This sentence was excessive because it did not reflect the
seriousness of the offense for which Mr. Williams was being sentenced, i.e.,
eavesdropping, and because it was based in large part on the defendant's
conduct while on probation.
The court's comments made clear that it considered Mr. Williams's
probation violation and fugitive status as aggravating factors to increase his
term of imprisonment. While these factors were certainly relevant and
appropriate in considering whether to give Mr. Williams another chance at
probation, they were improper factors when used to increase the term of his
sentence. Young, 138 Ill.App.3d at 139, 485 N.E.2d at 448.
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Based on the foregoing, it is clear that Mr. Williams's sentence was
improperly aggravated based on his inability to comply with the terms of
probation. The D,O.C. website indicates that Napoleon Williams will be eligible
for release ("Projected Parole Date") on March 13, 2010. (http://www.-
idoc. state.il. us/ subsections/ search/inms. asp) Notwithstanding his imminent
release, Napoleon Williams still asks this Court to remand his cause for a new
sentencing hearing.
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CERTIFICATE OF COMPLIANCE
I certify that this brief conforms to the requirements of Rules 34l(a) and
(b). The length of this brief, excluding the pages containing the Rule 341(d)
cover, the Rule 341(h)(I) statement of points and authorities, the Rule 341(c)
certificate of compliance, the certificate of service, and those matters to be
appended to the brief under Rule 342(a), is 27 pages.
JUDITH L. LIBAssistant Appellate Defender