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Docket No. 88843-Agenda 6-November 2000.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. MICHAEL WAGENER, Appellant.

Opinion filed June 1, 2001.

JUSTICE FREEMAN delivered the opinion of the court:

Defendant, Michael Wagener, was charged with first degreemurder (720 ILCS 5/9-1(a) (West 1994)) and concealment of ahomicidal death (720 ILCS 5/9-3.1 (West 1994)). After a benchtrial in the circuit court of Cook County, he was found guilty butmentally ill of both offenses. The court imposed consecutiveprison sentences of 50 years for his murder conviction and 5 yearsfor his conviction of concealment of a homicidal death. Theappellate court affirmed. No. 1-98-1561 (unpublished order underSupreme Court Rule 23).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 evidenceof his guilt, nor does he contend that the circuit court's conclusionthat he was guilty but mentally ill, rather than legally insane, wasagainst the manifest weight of the evidence. Accordingly, we willset out only the facts relevant to the issues raised in this appeal.For context, we note that the State proved the following facts in itscase in chief. On December 2, 1994, defendant fatally bludgeonedand strangled his wife, Mary, in their home in Chicago. Hewrapped her body in plastic and hid it under the back porch of thehouse. He then drove to Menominee, Wisconsin, with hisdaughter, Ashley, where he checked into a hotel using an assumedname and address. He was arrested at the hotel on December 5.While in police custody, he gave a statement in which he admittedkilling his wife and secreting her body at their house.

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

Defendant was also extremely overprotective of his childrenand fearful for their safety. When his son, Richard, died of suddeninfant death syndrome in February 1994, defendant believed hiswife had killed the child and he became very depressed. Althoughdefendant and his wife began to go to marriage counseling in thesummer of 1994, defendant remained depressed and continued tobelieve that his wife had killed their son.

One of defendant's sisters, Cathy Michiels, had severaltelephone conversations with defendant on December 3, 1994, theday after the murder. In the course of the conversations, defendanttold her that his daughter was with him and was all right, but whenMichiels 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 thathis wife had confessed to killing their son. Defendant toldMichiels that he needed a lawyer. Michiels referred him toThomas Gooch, an Illinois attorney.

Michiels was subsequently contacted by a different attorney,who told her that defendant wanted Michiels to come toMenominee and get Ashley before defendant turned himself in.Michiels contacted Gooch to ask if he knew anything about thearrangement. Michiels testified that Gooch told her that "he wasaware of it, that he thought that [defendant] was-that it wasn'treally an attorney that called him. He thought it was [defendant]pretending, you know, to be an attorney and he wasn't driving upto Menominee so he had contacted the Chicago Police Departmentand called them." Michiels did drive to Menominee to takecustody of Ashley.

During cross-examination, the State asked Michiels, overobjection, about another conversation she had with attorneyGooch. Michiels denied recalling that Gooch had told her thatdefendant had "asked him what the punishment was forcommitting a capital crime and crossing state lines." However, sheadmitted that it was possible that she had so told a police officer.

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

Each expert testified that he had reviewed the police reportsgenerated in connection with the case. One of these reportscontained the statement with which the State had cross-examinedMichiels-that attorney Gooch had told her that defendant hadasked him about the penalty for committing a capital crime andthen crossing state lines. The State cross-examined all of thedefense experts with this statement, over defendant's continuingobjection to the line of questioning.

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

The court found defendant guilty but mentally ill of firstdegree murder and concealment of a homicidal death. At asubsequent hearing, defendant was sentenced to consecutive termsof 50 years' imprisonment for his murder conviction and 5 years'imprisonment for his concealment conviction. The appellate courtaffirmed. No. 1-98-1561 (unpublished order under SupremeCourt Rule 23). We granted defendant leave to appeal. 177 Ill. 2dR. 315.

ANALYSIS

Defendant argues that his conviction should be reversed forviolations of his attorney-client privilege. In supplementalbriefing, defendant contends that his sentence should be vacatedbecause section 5-8-4(b) of the Unified Code of Corrections (730ILCS 5/5-8-4(b) (West 1994)), under which his sentences weremade consecutive, is unconstitutional.

I. Attorney-Client Privilege

Defendant first contends that he is entitled to a new trial. Heargues that his conversation with attorney Gooch was protected bythe attorney-client privilege, and that the disclosure in the policereport that he had asked attorney Gooch about the penalty forcommitting a capital crime and crossing state lines breached hisprivilege. He maintains that the State's use of this evidence at trialconstituted reversible error. Although the State does not admit thatthe statements to attorney Gooch were privileged, it contends thatassuming that they were initially privileged, defendant waived theprivilege. We agree.

We assume, arguendo, that defendant's conversation withattorney Gooch was privileged at the time it occurred. We alsoassume that the privilege remained intact despite the disclosure byGooch to defendant's sister, her subsequent disclosure to thepolice, and the recording of that statement in the written report.Indeed, the State does not maintain that any privilege which mighthave attached to defendant's statement was waived by any of theseacts. Instead, the State asserts that defendant waived any privilegeby giving the police report containing the statement to histestifying expert witnesses.

We begin with the general rule that experts may becross-examined for the purpose of discrediting their testimony, aswell as to ascertain which factors were taken into account andwhich were disregarded in arriving at these conclusions. People v.Williams, 181 Ill. 2d 297, 329 (1998). Opposing counsel isallowed to cross-examine an expert with respect to material whichhe has reviewed but upon which he did not rely. People v. Page,156 Ill. 2d 258, 275 (1993), quoting People v. Pasch, 152 Ill. 2d133, 179 (1992). Indeed, counsel may venture beyond the factssupported by the record in inquiring as to what changes ofconditions would affect his opinion. Williams, 181 Ill. 2d at 329;Page, 156 Ill. 2d at 275; Pasch, 152 Ill. 2d at 179. Thus thegeneral rule would allow the State to cross-examine the expertswith the content of a report included among the materials whichthey considered in forming their opinions.

Defendant does not dispute the above law, but contends thatgeneral rules regarding cross-examination of experts are beside thepoint in this case. He contends that it is irrelevant that the policereport containing his statement was supplied to the psychiatricexperts testifying for the defense because the statement was stillprivileged. Defendant argues that "in insanity cases the attorney-client privilege applies to information received by the defensemental health experts in the same manner as it does to thedefendant's attorney." He relies on this court's opinion in Peoplev. Knuckles, 165 Ill. 2d 125 (1995). There, this court extendedattorney-client privilege to communications between a defendantand a psychiatric expert, in order to "accord the common lawattorney-client privilege the scope necessary to meet thecomplexities of modern legal practice." Knuckles, 165 Ill. 2d at135.

However, Knuckles distinguished between testifying andnontestifying experts. Communications between a defendantraising an insanity defense and a psychiatric expert are protectedby the attorney-client privilege only so long as "the psychiatristwill not testify and the psychiatrist's notes and opinions will notbe used in the formulation of the other defense experts' trialtestimony." Knuckles, 165 Ill. 2d at 140. Contrarily, the privilegeis waived "with respect to the testimony and reports of thoseexperts who are identified by the defense as witnesses who will becalled to testify on behalf of the defendant at trial, or whose notesand reports are used by other defense experts who testify."Knuckles, 165 Ill. 2d at 139.

Thus Knuckles is of no help to defendant. Drs. Heinrich,Schwarz and Markos all testified at trial. Thus, the attorney-clientprivilege between them and defendant was waived.⁽¹⁾ Knuckles, 165Ill. 2d at 139. Because the communication had been revealed tothese persons with whom the privilege was waived, defendantwaived the privilege entirely. See Profit ManagementDevelopment, Inc. v. Jacobson, Brandvik & Anderson, Ltd., 309Ill. App. 3d 289, 299 (1999) ("[a]ny disclosure by the client isinherently inconsistent with the policy behind the privilege offacilitating a confidential attorney-client relationship and,therefore, must result in a waiver of the privilege"); People v.Childs, 305 Ill. App. 3d 128, 136 (1999) (same); Fidelity &Casualty Co. v. Mobay Chemical Corp., 252 Ill. App. 3d 992,1000-01 (1992) (same).

Defendant relies on Regan v. Garfield Ridge Trust & SavingsBank, 220 Ill. App. 3d 1078 (1991), for the proposition that a partydoes not waive the protection of the attorney-client privilege bycalling a witness who does not testify as to privileged matters. InRegan, the plaintiff called his prior attorney as a witness to testifyregarding the attorney's dealings with defendants and theirlawyers. When defendants attempted to cross-examine the attorneyregarding conversations with his client, the attorney refused toanswer, asserting attorney-client privilege. The appellate courtagreed with the trial court that the privilege had not been waived.Regan, 220 Ill. App. 3d at 1090-91.

Regan is distinguishable because, in the instant case, thewaiver did not depend on the substance of the witnesses'testimony. The mere fact that they testified waived attorney-clientprivilege between them and defendant. Knuckles, 165 Ill. 2d at139. While we agree with Regan that the attorney-client privilegeis not waived by simply calling an attorney as a witness to mattersnot involving the privilege, the attorney-client privilege betweena defendant and a psychiatric expert depends upon the expert's nottestifying at all. Once this fact changes, the privilege is waived.Knuckles, 165 Ill. 2d at 139-40. Accordingly, the privilege waswaived in its entirety with respect to all information defendant hadshared with the experts, just as it would be by the voluntaryrevelation of a privileged communication to any person withwhom the privilege was not shared. See Profit ManagementDevelopment, 309 Ill. App. 3d at 299; Childs, 305 Ill. App. 3d at136; Fidelity & Casualty Co., 252 Ill. App. 3d at 1000-01.

In his opening brief to this court, defendant argues that theprivilege could not have been waived by attorney Gooch'sdisclosure to defendant's sister. He bases this contention onstatements in various cases that a client will not be held to havewaived the privilege through an unauthorized disclosure by hiscounsel. See, e.g., Himmelfarb v. United States, 175 F.2d 924 (9thCir. 1949); Mendenhall v. Barber-Greene Co., 531 F. Supp. 951(N.D. Ill. 1982); Chavez v. Watts, 161 Ill. App. 3d 664 (1987);People v. Mudge, 143 Ill. App. 3d 193 (1986); 8 J. Wigmore,Evidence