Illinois Official Reports                         Digitally signed by
                                                                          Reporter of Decisions
                                                                          Reason: I attest to the
                                                                          accuracy and integrity of
                                                                          this document
                               Appellate Court                            Date: 2016.04.20 12:55:45
                                                                          -05'00'




                  People v. VanderArk, 2015 IL App (2d) 130790



Appellate Court    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption            GORDON L. VANDERARK, Defendant-Appellant.



District & No.     Second District
                   Docket No. 2-13-0790



Filed              December 23, 2015



Decision Under     Appeal from the Circuit Court of Du Page County, No. 11-CF-2677;
Review             the Hon. George J. Bakalis, Judge, presiding.



Judgment           Affirmed.



Counsel on         Thomas A. Lilien and Mark G. Levine, both of State Appellate
Appeal             Defender’s Office, of Elgin, for appellant.

                   Robert B. Berlin, State’s Attorney, of Wheaton (Lisa Anne Hoffman
                   and Edward R. Psenicka, Assistant State’s Attorneys, of counsel), for
                   the People.



Panel              PRESIDING JUSTICE SCHOSTOK delivered the judgment of the
                   court, with opinion.
                   Justices Jorgensen and Spence concurred in the judgment and opinion.
                                              OPINION

¶1       Following a jury trial, the defendant, Gordon L. VanderArk, was convicted of three counts
     of solicitation of murder for hire (720 ILCS 5/8-1.2 (West 2010)) and was sentenced to a total
     of 40 years’ imprisonment. On appeal, the defendant argues that the trial court erred in denying
     his motions to (1) suppress evidence and (2) appoint a special prosecutor. We affirm.

¶2                                          BACKGROUND
¶3        In 2010, Judge Blanche Hill Fawell sentenced the defendant to 22 years’ imprisonment for
     aggravated driving while his license was revoked (DWLR) (625 ILCS 5/6-303(a), (d-5) (West
     2008)) and aggravated driving while under the influence of alcohol (DUI) (625 ILCS
     5/11-501(a)(1), (d)(2)(E) (West 2008)). The State, represented by Du Page County Assistant
     State’s Attorney (ASA) Audrey Anderson, argued that the defendant should receive a greater
     sentence of 27 years’ imprisonment.
¶4        In September 2011, Centralia Correctional Center inmate Harold Meyers, Jr., sent a letter
     to Judge Fawell indicating that a fellow inmate, the defendant, wanted her killed. Meyers
     explained that the defendant hated her and had a “hit list” naming: (1) her; (2) Anderson; (3)
     the defendant’s ex-wife, Tina Wiggens; (4) Wiggens’ new boyfriend; and (5) the man who
     held the defendant’s power of attorney, Richard Temes. Meyers’ letter included addresses and
     various details about the lives, relationships, and habits of those on the list.
¶5        Judge Fawell turned Meyers’ letter over to the sheriff’s department, which opened an
     investigation in conjunction with the Du Page County State’s Attorney’s office. Pursuant to an
     overhear authorized by Judge Kathryn Creswell, Meyers wore a wire on October 19, 2011, and
     recorded his conversations with the defendant about the murder-for-hire scheme.
¶6        In the recorded conversations, the defendant described in detail how he wanted Meyers to
     kill the people on the list. He also wanted Meyers to kill anyone else present at the time of the
     murders, including Judge Fawell’s husband and children. The defendant repeatedly told
     Meyers that he was serious.
¶7        On November 14, 2011, ASA Timothy Diamond presented Judge Creswell with a petition
     for a writ of habeas corpus in the defendant’s DUI case. The defendant’s vehicle had been the
     subject of a forfeiture proceeding after the DUI, and the forfeiture was achieved by a default
     judgment against the defendant. The defendant, however, was unaware of this and repeatedly
     inquired about the status of his vehicle. The State informed Judge Creswell that the writ would
     be used, in part, to get the defendant out of the Illinois Department of Corrections (IDOC) for
     an interview about the murder-for-hire scheme. In addition, the defendant was to be told that
     his car had been forfeited. The State explained that it did not want to interview the defendant in
     Centralia, which might put Meyers’ safety in jeopardy. The State also did not want the
     defendant to be suspicious about why he was being brought to Du Page County, so the writ was
     to seem innocuous on its face.
¶8        On November 15, 2011, Meyers wore a wire a second time and recorded more discussions
     with the defendant about the murder-for-hire plot.
¶9        On November 16, 2011, the defendant was brought to the Du Page County courthouse. The
     Centralia guards brought the defendant through the main doors of the courthouse. They then
     entered Judge Fawell’s courtroom through the front door, where the general public comes in,

                                                 -2-
       rather than through the jail facility. This constituted a security breach. As such, Judge Fawell
       left the courtroom and the defendant was escorted from the courtroom through the jail.
¶ 10        The defendant was then interviewed. He was confronted with the recording of his
       conversations with Meyers and various documents, including a “hit list” and a promissory note
       to Meyers, dated February 28, 2011. The promissory note indicated that $70,000 was to be paid
       by Temes from the defendant’s account, with $2,000 being paid as a down payment. The
       defendant acknowledged that he had made the documents, but he stated that the $2,000 was for
       24 watercolor paintings that he had purchased from Meyers and that the $70,000 was to be paid
       to Meyers for his services in collecting money from Temes.
¶ 11        Following the interview, the defendant was charged with multiple counts of solicitation of
       murder for hire, with the intended victims alleged to be Judge Fawell, Anderson, Wiggens, and
       Temes.
¶ 12        The defendant thereafter filed a motion for the appointment of a special prosecutor. The
       defendant argued that the Du Page County State’s Attorney’s office was interested in the case
       and must be disqualified from prosecuting the case, because Anderson was one of the alleged
       intended victims. The trial court (Judge George Bakalis) denied the motion, explaining that
       there was no appearance of impropriety simply because Anderson was an alleged victim in the
       case.
¶ 13        The defendant also filed two motions to suppress the statements he made during the
       interrogation. In one motion, he argued that the State had used a false writ of habeas corpus. In
       his second motion, the defendant alleged that his statements were involuntary. The trial court
       denied the motions, explaining that, even if there had been a violation of the Habeas Corpus
       Act (Act) (735 ILCS 5/10-101 et seq. (West 2012)), the suppression of his statements was not
       an appropriate remedy.
¶ 14        The defendant thereafter filed a motion to reconsider, arguing that it was a due-process
       violation for Judge Creswell to have signed the habeas writ knowing that the “document was a
       subterfuge.” He alleged that Judge Creswell had engaged in misconduct. The defendant argued
       that he had a right to be “treated fairly” and that his constitutional right “surrounding” the Act
       had been infringed.
¶ 15        At a hearing on the motion to reconsider, the trial court asked how the issue of the vehicle
       forfeiture had been raised by the defendant. The State explained that the defendant had raised
       the issue when talking with Meyers and had raised it in some letters. The trial court then
       considered an affidavit that Judge Creswell had written. Judge Creswell averred that the State
       had informed her that the basis of the habeas writ was that the defendant had written several
       letters inquiring into the disposition of his vehicle and that those letters had never been
       addressed. Judge Creswell further averred that the State had also informed her that law
       enforcement officers wanted to speak to the defendant at the Du Page County courthouse
       complex about the murder-for-hire investigation.
¶ 16        Following the hearing, the trial court entered a written order denying the motion to
       reconsider. The trial court explained that the police and the Du Page County State’s Attorney’s
       office had concocted a scheme where the defendant would be brought to Du Page County by a
       ruse. The State prepared a petition that alleged that the defendant had been charged with DUI
       and was to be brought to court for status on the return of his vehicle. The trial court found that
       “in truth” no DUI prosecution was pending against the defendant and nothing was pending
       regarding the return of his vehicle, on which forfeiture proceedings had already occurred. The

                                                   -3-
       defendant had made no requests to attend court for any such status. The trial court further
       found that the State had failed to inform Judge Creswell that there was no case pending against
       the defendant and that the forfeiture of his vehicle had already taken place. The trial court
       determined that the State’s deceptive actions had led to the writ being improperly issued.
       Nonetheless, the trial court found that the State’s actions did not “rise to the level of such
       egregious conduct to warrant suppression of an otherwise voluntary statement.”
¶ 17       On May 8, 2013, the trial court conducted a jury trial. Meyers testified that he and the
       defendant spoke frequently while in Centralia. The defendant was upset with Temes, who was
       taking care of his finances. He was upset with Wiggens, who was a “gold digger” and was
       taking his money while having an affair with another man. He was also upset with Judge
       Fawell and with Anderson. He hated both of them and would get red-faced when he talked
       about them.
¶ 18       According to Meyers, the defendant asked him if he had ever killed anyone. Meyers replied
       that, if he had, he would not tell the defendant. The defendant told him that “he had some jobs
       that he needed to get done,” which Meyers understood to mean that the defendant wanted him
       to “eliminate” or “threaten” someone. The defendant then showed him a “hit list,” which
       included Judge Fawell and her husband, Wiggens and her boyfriend, and Wiggens’ brother and
       his daughters. The defendant explained that he wanted Meyers to kill the people on the list
       after Meyers was released from prison.
¶ 19       Meyers testified that he was to be paid $70,000 for the murders, with $2,000 paid as a down
       payment to show good faith. The defendant had Temes transfer $2,100 into Meyers’ prison
       trust account. The remainder was to be paid after the murders.
¶ 20       Meyers explained that, because he wanted a receipt for the money, he and the defendant
       came up with the idea that the receipt would show that the money had been for watercolors that
       Meyers had painted. Although he received a receipt, Meyers did not give any watercolors to
       the defendant or Temes.
¶ 21       Meyers testified that he wrote a letter to Judge Fawell after he realized that the defendant
       was serious about wanting her killed. After being approached by the Du Page County State’s
       Attorney’s office, he agreed to wear a recording device and tape some of his discussions with
       the defendant. The court admitted these recordings into evidence. Meyers testified that he
       received no money or sentence reduction for his help with the prosecution.
¶ 22       Temes testified that he first met the defendant when they were both inmates in the Du Page
       County jail. The defendant asked him to help him with his finances and added his name as
       power of attorney to his Chase Bank account. Temes transferred $2,100 from the defendant’s
       account to Meyers’ account. Temes did not receive any watercolor paintings.
¶ 23       Michael Gardner testified that he was the defendant’s cellmate at Centralia for seven or
       eight months. The defendant would talk many times a day about Wiggens and her boyfriend
       stealing his money. He wanted his money back. The defendant would get red in the face and
       raise his voice when he talked about Wiggens. Toward the end of their time as cellmates, the
       defendant began telling Gardner a couple of times a week that he wanted Wiggens to be killed
       painfully. He also wanted Anderson and Judge Fawell to be killed. Gardner believed that the
       defendant was serious, and he therefore wrote a letter to the State’s Attorney.




                                                  -4-
¶ 24        Judge Fawell testified that she had been the presiding judge in the case in which the
       defendant was prosecuted for DUI and DWLR. She had sentenced him to 22 years’
       imprisonment. She acknowledged receiving a letter from Meyers.
¶ 25        Anderson testified that, at the time of the defendant’s DUI prosecution, she was the
       first-chair supervisor in Judge Fawell’s felony trial courtroom. She requested a longer sentence
       than the defendant received. She testified that the prosecutors in the present case, Joseph Lindt
       and Helen Kapas, had been ASAs in the same office with her for many years.
¶ 26        Investigator Robert Guerrieri testified about his videotaped interview with the defendant at
       the Du +Page County sheriff’s office. The video of the interview was played for the jury over
       defense objection.
¶ 27        After the close of the evidence, the jury found the defendant guilty of soliciting the murders
       of Judge Fawell, Anderson, and Wiggens. The trial court sentenced him to 40 years’
       imprisonment for solicitation as to Judge Fawell, 35 years for solicitation as to Anderson, and
       20 years for solicitation as to Wiggens. The trial court ordered that all of the sentences be
       served concurrently with each other but consecutively to his current sentence for DUI and
       DWLR. The defendant thereafter filed a timely notice of appeal.

¶ 28                                            ANALYSIS
¶ 29       The defendant’s first contention on appeal is that the trial court erred in denying his first
       motion to suppress. Specifically, the defendant argues that the State tricked Judge Creswell
       into issuing a false writ so that he could be interrogated in Du Page County. The defendant
       contends that, because the State’s conduct was so outrageous, his statements should have been
       suppressed.
¶ 30       In response, during oral argument, the State acknowledged that some of its actions during
       the proceedings could have been considered inept. The State acknowledged that it would have
       been better to inform Judge Fawell on the day the defendant was due in court that he was going
       to be there. The State also acknowledged that there was no reason that Judge Fawell had to be
       the judge to inform the defendant about the status of his vehicle. Had either Judge Fawell been
       informed that the defendant would be in her courtroom or the matter been scheduled before a
       different judge, the State suggests, the defendant would have been informed about the status of
       his vehicle just as the writ indicated. We note further that, had the State arranged to record the
       proceedings before Judge Creswell on November 14, 2011, the confusion relating to what she
       was informed would have been eliminated.
¶ 31       We need not delve into whether the State’s actions constituted intentional deception or
       mere ineptitude because, even if Judge Creswell was tricked into issuing a writ pursuant to the
       Act, the defendant still would not be entitled to any relief. The IDOC has been granted sole
       discretion in placing, handling, and transferring inmates within its control. People v. Freed,
       328 Ill. App. 3d 459, 465-66 (2002). The legislature has given the IDOC the power to assign
       inmates to any of its facilities, and the IDOC has been charged with the responsibility of
       maintaining programs of control and rehabilitation for inmates within its facilities. 730 ILCS
       5/3-2-2(1)(b), (1)(d) (West 2012). Recognizing the IDOC’s responsibility for placing and
       controlling inmates within its facilities, the legislature enacted the Act (735 ILCS 5/10-101
       et seq. (West 2012)) to set forth the proper procedure for bringing an inmate before the trial
       court. The trial court may enter a habeas order to have the inmate: (1) testify; (2) be
       surrendered in discharge of bail; (3) attend the inmate’s own criminal proceedings; and (4)

                                                    -5-
       testify in out-of-state criminal proceedings. Freed, 328 Ill. App. 3d at 466. If the Act is not
       complied with and an inmate is not transferred for proper reasons, the affected transferring
       agency may be entitled to up to $300. 735 ILCS 5/10-131 (West 2012). The Act does not
       specifically confer any rights upon the inmate. See People v. Harris, 182 Ill. 2d 114, 150
       (1998).
¶ 32       In Harris, an ASA had a “ ‘jail letter’ ” issued requesting that the director of the Cook
       County jail transfer the defendant from the jail to the Chicago police department. The letter
       indicated that the defendant was wanted for a criminal investigation unrelated to any case
       pending against the defendant. However, upon being transferred, the defendant was placed into
       a police lineup regarding a murder in which he was allegedly involved. The defendant
       subsequently gave authorities two statements regarding his role in the murder at issue. Id. at
       148-49.
¶ 33       The defendant filed a motion to suppress his statements on the basis that he had been
       transferred from the jail to the police station, in violation of the Act. Id. at 148. The trial court
       denied the defendant’s motion and the supreme court affirmed. The supreme court held that the
       Act did not give rise to a protected interest sufficient to warrant suppression of evidence
       obtained in violation of the Act. Id. at 150. The supreme court explained:
                    “Without deciding precisely what sort of protected interest the Habeas Corpus Act
                might give rise to [citation] and what sort of remedy is necessary for its violation, we
                do not believe that suppression is an appropriate consequence here. Neither the Habeas
                Corpus Act nor the County Jail Act is aimed at the sort of police misconduct that would
                warrant suppression of the defendant’s statements. *** [T]he police had legitimate
                reasons to transfer the defendant to *** where the investigation was centered and
                where they could conduct a lineup.” Id.
¶ 34       Here, as in Harris, any purported violation of the Act did not implicate any of the
       defendant’s constitutional rights. Therefore, as in Harris, the defendant was not entitled to a
       suppression of his statements, based on the violation of the Act. The trial court therefore did
       not err in denying the defendant’s motion to suppress his statements.
¶ 35       The defendant argues that this case is distinguishable from Harris because Harris did not
       involve a trial court judge being tricked into issuing a false writ. Even if we were to accept the
       defendant’s premise that the State’s conduct was so outrageous that his statements should be
       suppressed, the defendant would still not be entitled to any relief, because his statements did
       not affect the outcome of his trial. See People v. Mullins, 242 Ill. 2d 1, 23 (2011) (if a
       constitutional error occurs at trial, a reviewing court must determine whether the trial court’s
       error was harmless beyond a reasonable doubt). Here, the evidence against the defendant was
       overwhelming. The State’s evidence included: (1) Meyers’ detailed testimony about the
       solicitation-of-murder scheme; (2) the recordings in which the defendant himself talked about
       the scheme; (3) the “hit list” that the defendant wrote about whom he wanted killed; (4) the
       written receipt and promissory note for the scheme; (5) Temes’ testimony about the financial
       transactions between the defendant and Meyers; and (6) Gardner’s testimony that the
       defendant told him that he wanted Judge Fawell, Anderson, and Wiggens killed. Further, the
       statements the defendant wanted to suppress did not implicate him in the
       solicitation-of-murder scheme but instead provided an innocent explanation of why he was
       transferring money to Meyers. For all these reasons, the defendant’s argument that his
       statements should have been suppressed is without merit.

                                                     -6-
¶ 36       The defendant’s second contention on appeal is that the trial court abused its discretion in
       denying his motion to appoint a special prosecutor. The defendant argues that there was an
       appearance of impropriety, because Anderson worked for the prosecuting agency and was a
       coworker of the prosecuting attorneys.
¶ 37       Article VI, section 19, of the Illinois Constitution provides for the election of a State’s
       Attorney in each county. Ill. Const. 1970, art. VI, § 19. The powers and duties of a State’s
       Attorney include commencing and prosecuting all actions, civil and criminal, in which the
       people of the state might be concerned. 55 ILCS 5/3-9005(a)(1) (West 2012). However, when
       a State’s Attorney is interested in any cause or proceeding, civil or criminal, that he or she has
       a duty to prosecute, the court may appoint some other competent attorney to prosecute such
       cause or proceeding. 55 ILCS 5/3-9008 (West 2012).
¶ 38       There are three situations in which the State’s Attorney could be considered interested so
       as to authorize the appointment of a special State’s Attorney. People v. Lang, 346 Ill. App. 3d
677, 681-82 (2004). Those three situations are where (1) the attorney is interested as a private
       individual in the litigation; (2) the attorney is an actual party to the litigation; or (3) the
       attorney’s involvement creates the appearance of impropriety in the prosecution of the
       defendant. Id. However, even if there is a concern about the appropriateness of the State’s
       Attorney’s office prosecuting a case against a particular defendant, that concern must be
       weighed against countervailing considerations. See People v. Shick, 318 Ill. App. 3d 899, 907
       (2001). Such countervailing considerations include (1) the burden that would be placed on the
       State’s Attorney’s office if the entire office had to be disqualified; (2) how remote the
       connection is between the State’s Attorney’s office and the alleged conflict of interest; and (3)
       to what extent the public is aware of the alleged conflict of interest. Lang, 346 Ill. App. 3d at
       683. The decision to appoint a special prosecutor rests within the sound discretion of the trial
       court. People v. Polonowski, 258 Ill. App. 3d 497, 503 (1994).
¶ 39       Applying all of these principles to the instant case, we hold that the trial court did not abuse
       its discretion in denying the defendant’s motion for the appointment of a special prosecutor.
       The defendant provides no reason why a new special prosecutor should have replaced the Du
       Page County State’s Attorney’s office, other than that Anderson was an ASA herself. The
       defendant argues that that fact created an appearance of impropriety. However, that standing
       alone is not a reason to disturb the trial court’s decision. In People v. Morley, 287 Ill. App. 3d
499, 505 (1997), we rejected a similar argument, explaining:
                    “The State’s Attorney’s responsibilities are not limited to representing the people
               of the State who are not employed by the State of Illinois or some other governmental
               entity. These prosecutorial responsibilities will occasionally include prosecuting cases
               where victims and witnesses are employed by a state, county, or local agency,
               including, but not limited to, the State’s Attorney’s office. Furthermore, the State’s
               Attorney does not represent individuals or specific witnesses during the course of
               criminal prosecutions. Criminal prosecutions are commenced in the name of and on
               behalf of the people of the State of Illinois. To hold that a special prosecutor must
               always be appointed whenever a victim or witness is employed by a state, county, or
               local agency would be an illogical, as well as impractical, encroachment upon the
               authority of a constitutional officer.” Id.
¶ 40       We further note that it is not necessarily improper for an ASA to testify as a witness in a
       case that her office is prosecuting. See People v. Tracy, 291 Ill. App. 3d 145, 150-51 (1997). In

                                                    -7-
       Tracy, the defendant’s daughter was issued a citation for illegally passing a school bus. At the
       first court appearance on the citation, the defendant informed an ASA that she had been driving
       the vehicle that illegally passed the school bus. Charges were subsequently filed against the
       defendant. Upon learning that the ASA would be a witness against her, the defendant filed a
       motion seeking the appointment of a special prosecutor. The trial court denied the motion, and
       the reviewing court affirmed. Id. at 149-51. The reviewing court explained that a special
       prosecutor was not needed, because the ASA who testified was not the complaining witness
       against the defendant. Id. at 151.
¶ 41        Here, in order to establish that the defendant had committed solicitation of murder for hire,
       the State was required to establish that the defendant (1) intended that a first-degree murder be
       committed and (2) procured another “to commit that offense pursuant to any contract,
       agreement, understanding, command, or request for money or anything of value.” 720 ILCS
       5/8-1.2(a) (West 2012). As Anderson’s testimony could establish neither of those elements of
       the offense, she was not a complaining witness against the defendant. Therefore, as in Tracy,
       the trial court did not abuse its discretion in declining to appoint a special prosecutor.
¶ 42        The defendant argues that the instant case is more analogous to Lang. We find his reliance
       on that case to be misplaced. In Lang, after a hearing related to the defendant allegedly driving
       with a revoked license, the prosecutor followed the defendant out of court, saw him drive away
       from the courthouse, and contacted police to inform them that the defendant was driving
       without a license. Lang, 346 Ill. App. 3d at 678-79. The prosecutor then continued to prosecute
       the case up until trial, when another attorney from the State’s Attorney’s office prosecuted the
       case. The prosecutor who witnessed the alleged crime was the State’s chief witness at trial. Id.
       at 679.
¶ 43        On appeal, we found that the trial court abused its discretion by declining to appoint a
       special prosecutor. Id. at 684. We explained that, “[a]lthough the [prosecutor’s] pursuit of the
       defendant was not wrong in itself, his aggressive behavior toward the defendant created the
       appearance that the State’s Attorney’s office was obsessed with finding evidence against the
       defendant to obtain a conviction against him at all costs.” Id. We further explained that a
       prosecutor becoming a witness would not necessarily require his entire office to be
       disqualified, but that the specific facts in Lang, which “significantly” included the prosecutor
       affirmatively working to catch the defendant in a crime and then becoming the key witness in
       the prosecution, warranted disqualification. Id. at 685-86.
¶ 44        Here, unlike the primary witness in Lang, Anderson did not demonstrate any aggressive
       behavior toward the defendant that suggested she was obsessed with obtaining a conviction
       against him at all costs. Further, she was not involved in the defendant’s instant prosecution.
       Additionally, as noted above, her testimony was not even needed to prosecute the defendant.
       For these reasons, Lang does not require us to reach a different result in this case.

¶ 45                                       CONCLUSION
¶ 46      For the reasons stated, the judgment of the circuit court of Du Page County is affirmed.

¶ 47      Affirmed.




                                                   -8-