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5 June 2000

In 1994 defendant, Hector Rodriguez, was convicted of onecount of first-degree murder (720 ILCS 5/9--1(a)(1) (West 1994))and one count of aggravated battery with a firearm (720 ILCS 5/12--4.2(a)(1) (West 1994)) and sentenced to concurrent 28-year terms ofincarceration. On appeal this court reversed and held, inter alia,that the trial court improperly granted the State's motion to joinhis case with a codefendant's. See People v. Rodriguez, 289 Ill.App. 3d 223, 237 (1997) (Rodriguez I). This court also held thatthe trial court properly admitted a tape recording that defendantalleged was made in violation of the eavesdropping provisions of

section 14--2(a) of the Criminal Code of 1961 (the Code) (720 ILCS5/14--2(a) (West 1994)). Rodriguez I, 289 Ill. App. 3d at 238. Onremand, defendant was retried and convicted of first-degree murder(720 ILCS 5/9--1(a)(2) (West 1994)) and aggravated battery with afirearm. The trial court sentenced defendant to 28 years'incarceration for the murder charge and a consecutive term of 6years' incarceration for the aggravated battery charge. Defendant's posttrial motions were denied, and defendant timelyappeals. On appeal defendant contends that (1) the State failed toprove him guilty beyond a reasonable doubt; (2) the trial courterred when it admitted an audiotape of a telephone conversationmade without defendant's consent; (3) the trial court erred when itruled that defendant could not call his mother to impeachstatements made in the audiotape; (4) the trial court invaded thejury's role as fact finder when it answered a jury questionregarding the interpretation of a transcript of defendant's firsttrial; (5) defendant's 34-year sentence was excessive when comparedto his original 28-year sentence because the trial court punisheddefendant for successfully prosecuting his first appeal; and (6)the trial court erred when it failed to calculate and include inthe mittimus credit for time served. We affirm in part, vacate inpart, and remand for a determination of defendant's credit for timeserved.

In accordance with the criteria of Supreme Court Rule 23(a)(166 Ill. 2d R. 23(a)), we have determined that only defendant'ssecond issue, admissibility of the audiotape, is of precedentialsignificance. Accordingly, we have ordered that the remainingportions of this disposition be unpublished.

The procedural history of and the evidence presented atdefendant's first trial are set out in this court's previousopinion. See Rodriguez I, 289 Ill. App. 3d 223. The followingsupplemental facts are provided to address the issues relevant tothis appeal.

Before defendant's second trial, he moved to suppress a taperecording made by Arlene Carrion of a telephone conversation shehad with defendant. The State responded that the issue had beenaddressed in the direct appeal of defendant's first conviction, inwhich this court held that the tape was admissible. Defendantargued that the eavesdropping statute had been amended and that theamended statute should be retroactively applied to bar theadmission of the recording. The trial court held that the earlierappellate decision was the "law of the case" and ruled that thetape would be admissible.

[Nonpublishable material removed under Supreme Court Rule 23.]

At trial, Arlene Carrion testified that she knew both FreddieZuniga and defendant. On June 5 or June 6, 1994, she learned thatZuniga had been arrested for murder. Carrion spoke with defendantat a Puerto Rican Society meeting hall after learning of Zuniga'sarrest but could not recall the exact date. Carrion testified shecould not recall the substance of the conversation. Carrion alsotestified she could not recall what defendant said about theshooting. Carrion admitted testifying under oath in the earlierproceeding. The State asked whether Carrion recalled the followingexchange:

"Q. What did he tell you about the shooting?

A. I had asked him if he did it and he said yes hedid."

Carrion denied recalling whether she had given the answer. TheState then asked if Carrion recalled the following exchange.

"Q. What, if anything, did he tell you about whetherFreddie had done it?

A. He admitted to me that he did not do it.

Q. That who did not do it?

A. That Freddie did not do it."

Carrion denied recalling the exchange.

Carrion testified that she also spoke with defendant on thetelephone about the shooting. Carrion testified that she made arecording of the conversation using her answering machine. However, Carrion denied recalling the content of the conversation. The audiotape was played for the jury; the transcript of theaudiotape included in the record contains the following exchange.

"[DEFENDANT]: Lake County, they want me to confess, Itold the guard I'd rather rot in jail.

[CARRION]: Who wants you to confess?

[DEFENDANT]: Those, those, the state, cause they saidthey think I know more.

[CARRION]: But they don't got no proof you did that, youdid it right?

[DEFENDANT]: They don't know who did it. Freddie saidhe did it, to get me off, all I'm getting charged with is forcarrying the gun, and for hiding it. [T]hat's why I'm goingto try to get charged *** as a Juvy, a Juvenile.

[CARRION]: Yeah but that's f----- up then because he'sgoing to get charged for murder and s--- and he didn't even doit.

[DEFENDANT]: I know."

The tape also included the following:

"[CARRION]: They don't know that you did it right?

[DEFENDANT]: Who don't?

[CARRION]: Your parents.

[DEFENDANT]: Yeah, they know.

[CARRION]: They know?

[DEFENDANT]: Yeah."

After hearing the tape, Carrion admitted that it was her voice onthe recording. She also admitted that it was defendant's voice onthe recording. However, Carrion testified that she could notremember the conversation and could not determine whether the tapehad been altered. Carrion testified that at the time theconversation was recorded she was using marijuana as often as threetimes a day and was an alcoholic. Carrion testified that sherecalled making the recording and that the tape contained her voiceand defendant's voice. Carrion testified that, although she couldnot recall the details of the conversation, she could not deny thatthe tape was an accurate recording. Carrion also testified thatshe could not recall whether the police asked her to make therecording. Carrion admitted that she reviewed the tape with aninvestigator from the State's Attorney's office. She admittedthat, after listening to the tape, she reviewed a transcript of thetape with an investigator. Carrion also admitted that afterreviewing the transcript she made several corrections to thetranscript and initialed the corrections.

On cross-examination Carrion admitted that, at the time of theshooting, she was a close friend of both Carlos Arroyo and FreddieZuniga. Carrion also testified that the State's Attorney's officehad threatened to charge her with perjury if she did not testify atthe trial.

[Nonpublishable material removed under Supreme Court Rule 23.]

Defendant testified that he knew Arlene Carrion. Defendanttestified that he had listened to the tape of his conversation withCarrion when it was played in the courtroom. Defendant testifiedthat he recalled the conversation but that he did not know that hewas being recorded at the time. Defendant testified that he didnot have any other conversation with Carrion in which he admittedshooting from the van. Defendant also testified that he did nothave any other conversations with Carrion in which he stated thatFreddie was not the shooter. Defendant testified that, when hespoke to Carrion, he was playing around and goofing off. Defendanttestified that when he told Carrion that his parents knew that he"did it," he was referring to hiding the gun. Defendant testifiedthat when he said he knew that Freddie did not do it, he meant thathe couldn't say whether Freddie was the shooter because he did notsee the shooter.

On cross-examination defendant admitted that it was his voiceon the tape. Defendant admitted that, when Carrion asked "So whatdid Freddie say about this s---," he responded "I don't know. He'sthe one who took the blame." Defendant testified that he used thephrase "took the blame" because he didn't see who did it and didnot want to say Freddie did it. Defendant denied that Freddie tookthe blame for him. Defendant admitted that he said "Freddie saidhe did it to get me off." Defendant testified that, when he saidthat, he meant that Freddie was trying to get him off for hidingthe gun. Defendant admitted that, when Carrion said "Yeah butthat's f----- up then because [Freddie's] going to get charged formurder and s---, and he didn't even do it," he answered "I know." Defendant testified that when he said that he meant that he didn'tsee who did it.

[Nonpublishable material removed under Supreme Court Rule 23.]

The jury found defendant not guilty of first-degree murderbased on an intent to kill Arturo Mendez, guilty of first-degreemurder based on a strong probability of the death of or greatbodily harm to Arturo Mendez, and guilty of aggravated battery witha firearm. The trial court entered judgment on the jury's verdictsand set the matter for sentencing.

Defendant subsequently moved for a judgment n.o.v. or, in thealternative, a new trial. The trial court denied defendant'sposttrial motions and continued the matter for sentencing. At thesentencing hearing, the State argued that the defendant was subjectto mandatory consecutive sentences and urged the trial court tosentence defendant to 28 years' incarceration for the murderconviction and 15 years' incarceration for the aggravated batteryconviction. Defendant noted that following his first trial he wassentenced to two concurrent terms of 28 years' incarceration. Defendant argued that imposing an aggregate sentence in excess of28 years would unfairly punish him for exercising hisconstitutional right to appeal.

The trial court first noted that defendant's conduct in theDepartment of Corrections indicated that he had attempted to dosome good things and would not justify an increase in the 28-yearterm given for the murder conviction following the first trial. However, the trial court also noted that it did not believe theoriginal 28-year term was excessive and stated that it consideredthe original sentence to be lenient, but appropriately so. Thetrial court then discussed the mandatory nature of the consecutivesentence and stated, "This is not a trial tax or intended to be atrial tax or intended to be an appeal tax, but that's the positionthis defendant is faced with now." The trial court then sentenceddefendant to a consecutive term of six years' incarceration for theaggravated battery conviction. The trial court denied defendant'ssubsequent motion to reconsider, and defendant timely appeals.

[Nonpublishable material removed under Supreme Court Rule 23.]

Defendant contends that the trial court erred when it admittedan audiotape recording of his conversation with Carrion. Defendantargues that the tape was inadmissible because it was obtained inviolation of the amended version of section 14--1(a) of the Code(720 ILCS 5/14--1(a) (West 1998)). Defendant alternatively arguesthat the State failed to lay a proper foundation for the admissionof the tape.

In defendant's first appeal, this court ruled that the tapehad properly been admitted because it was not made in violation ofsection 14--1(a) as that section had been interpreted by oursupreme court in People v. Beardsley, 115 Ill. 2d 47 (1986). SeeRodriguez I, 289 Ill. App. 3d at 238. In Beardsley, the supremecourt held that the eavesdropping statute did not prohibit therecording of a conversation by a party to that conversation becausedoing so did not invade an expectation of privacy. Beardsley, 115Ill. 2d at 55. However, after Beardsley was decided, thelegislature amended section 14--1 and defined a conversation as"any oral communication *** regardless of whether one or more ofthe participants intended their communication to be of a privatenature under circumstances justifying that expectation." 720 ILCS5/14--1(d) (West 1994) (amended by Pub. Act 88--677