People v. Schnurr

564 N.E.2d 1336, 206 Ill. App. 3d 522, 151 Ill. Dec. 674, 1990 Ill. App. LEXIS 1891
CourtAppellate Court of Illinois
DecidedDecember 19, 1990
Docket2-88-1050
StatusPublished
Cited by13 cases

This text of 564 N.E.2d 1336 (People v. Schnurr) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Schnurr, 564 N.E.2d 1336, 206 Ill. App. 3d 522, 151 Ill. Dec. 674, 1990 Ill. App. LEXIS 1891 (Ill. Ct. App. 1990).

Opinions

JUSTICE McLAREN

delivered the opinion of the court:

Defendant, Ethel Jean Schnurr, was convicted of solicitation (Ill. Rev. Stat. 1987, ch. 38, par. 8 — 1) and was sentenced to 10 years’ imprisonment. Defendant now appeals both her conviction and her sentence. We affirm.

Defendant approached Vernial Trotter (Trotter) on or about October 19, 1987, and offered him $1,000 to murder her husband, Emil Schnurr (Emil). At approximately 5:30 that evening, Trotter informed the police about defendant’s plan. Later that evening, Trotter was fitted with an electronic eavesdropping device, which he wore as he and defendant traveled to Emil’s home in the early morning hours of October 20. Parts of the conversation between defendant and Trotter were recorded. Trotter entered Emil’s home and waited briefly with Emil and a police detective. He then returned to defendant’s vehicle and informed defendant that Emil was dead. Moments later, police stopped defendant’s vehicle and arrested defendant. Trial by jury resulted in defendant’s conviction for solicitation and a 10-year prison term.

Defendant first raises several issues which, by her own admission, were not raised in her motion for a new trial. These issues are (1) whether a proper foundation was laid for admission of the eavesdropping tape; (2) whether the court erred in admitting testimony regarding the accuracy of a transcript of the eavesdropping tape; (3) whether the court erred in refusing to allow testimony that Trotter was on probation for a prior conviction; (4) whether the court erred in admitting testimony that defendant had previously lied to her husband about matters having no connection to the case; and (5) whether the court erred in admitting testimony that defendant stood to inherit Emil’s estate upon his death. Defendant acknowledges that failure to raise an error in both a trial objection and a written post-trial motion constitutes waiver of the issue. (See People v. Enoch (1988), 122 Ill. 2d 176, 186-87.) However, defendant argues that these issues should not be considered waived because the failure to raise the issues in the post-trial motion is a result of ineffective assistance of counsel.

To prove ineffective assistance of counsel, a defendant must establish that counsel’s performance was deficient and that there is a reasonable probability that, but for counsel’s errors, the outcome of the proceedings would have been different. (People v. Albanese (1984), 104 Ill. 2d 504, 525.) We find that defendant has failed to prove either prong of the test adopted in Albanese. Defendant’s only argument regarding the deficiency of her counsel’s performance is that the failure to raise in a post-trial motion all objections raised at trial drags counsel’s performance below an objective standard of reasonableness. We do not find this persuasive. Defense counsel raised 19 issues in the post-trial motion. Counsel is not required to raise every trial objection in a post-trial motion. The inclusion of an issue is a matter of trial strategy; such strategy is entitled to great deference on review. (People v. Ptak (1990), 193 Ill. App. 3d 782, 789.) Defendant concedes that counsel’s performance was otherwise not objectionable. We conclude that defense counsel’s performance was reasonable and effective.

In addition, defendant has failed to prove that she was prejudiced by her counsel’s performance. In Enoch, the court found that the defendant failed to show ineffective assistance of counsel because he did not show that, but for counsel’s failure to file a post-trial motion, he would not have been convicted. (Enoch, 122 Ill. 2d at 202; see also People v. Williams (1989), 180 Ill. App. 3d 294, 300-01.) Under this analysis, we find that counsel’s failure to raise the five contested issues in the post-trial motion did not affect the outcome of the trial and defendant’s conviction.

Defendant’s first contention is that the State failed to demonstrate a proper foundation for the admission of the eavesdropping tape. The original tape was sent to the Federal Bureau of Investigation (FBI), pursuant to court order, for “cleansing,” i.e., removing static to enhance the sound of the tape. The court allowed the cleansing of the tape on the condition “that Mr. Berry [defense counsel] will be present when the copies are made, exchanged mutually between you [trial counsel].” Defendant now argues that admission of the tape was error because the State did not demonstrate that no changes were made affecting the integrity of the tape. Defendant cites People v. Nieves (1982), 92 Ill. 2d 452, for the proposition that once some evidence of tampering or disturbing the integrity of a recording is introduced, the State must show a lack of alteration. Nieves dealt with section 108A — 7(b) of the Code of Criminal Procedure of 1963, which provides that all recordings of eavesdropped conversations must be made available to the judge issuing the eavesdropping order immediately after the expiration of the order; the court is then to seal the recordings. (See Ill. Rev. Stat. 1989, ch. 38, par. 108A — 7(b).) Our supreme court determined that the purpose of this requirement was “to prevent tampering, alteration or editing and to preserve the integrity of the tapes.” (Nieves, 92 Ill. 2d at 462.) The court then held that, “[w]here the issue is immediacy, *** if a defendant challenges the integrity and presents some evidence to support the challenge, the burden should shift to the State, *** and the State must show that the tapes have not been altered.” Nieves, 92 Ill. 2d at 462.

Defendant now argues that the State must prove that the tape was not altered. Assuming, arguendo, the applicability of the Nieves standard, defendant has failed to introduce any evidence to challenge the integrity of the tape. While defendant has shown that the tape was sent to the FBI, she has not shown any evidence that the FBI disturbed the integrity of the tape. The fact that the tape was sent away is not a specific challenge to its integrity. The closest defendant comes to a challenge of the tape’s integrity was stating that the first words she spoke to Trotter as he returned to the van were not the first words heard on the tape. This, however, was not raised in conjunction with a challenge to the tape and is insufficient in any event. We find no error in the admission of the eavesdropping tape.

The next issue not raised in the post-trial motion is whether it was error to place before the jury foundational testimony that a transcript of the eavesdropping tape was an accurate reflection of the contents of the tape. The court admitted testimony that the transcript accurately reproduced the content of the tape from Karen Larson, who transcribed the tape, Officer Pirages of the Rockford police department, who assisted in the transcription, and Trotter. Defendant acknowledges that evidence of the accuracy of a transcript is necessary for admission of the transcript. (See People v. Dogoda (1956), 9 Ill. 2d 198, 202; People v. Rogers (1989), 187 Ill. App. 3d 126, 132-34.) However, defendant argues that evidence of the accuracy of the transcript was offered to the jury as substantive evidence and not merely as a foundation.

We find this argument unpersuasive. Before the transcripts were distributed to the jury and the tape was played, the court admonished the jury as followed:

“THE COURT: Don’t look at them until I give you the statement, please.

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People v. Schnurr
564 N.E.2d 1336 (Appellate Court of Illinois, 1990)

Cite This Page — Counsel Stack

Bluebook (online)
564 N.E.2d 1336, 206 Ill. App. 3d 522, 151 Ill. Dec. 674, 1990 Ill. App. LEXIS 1891, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-schnurr-illappct-1990.