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People v. Fetterman

AUGUST 2, 1973.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

KENNETH WAYNE FETTERMAN, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. ROBERT J. COLLINS, Judge, presiding.

MR. PRESIDING JUSTICE DEMPSEY DELIVERED THE OPINION OF THE COURT:

The defendant, Kenneth Fetterman, was found guilty by a jury of the murders of Anna Karela and her infant daughter, Kimberly. Fetterman was sentenced to the penitentiary for 100 to 199 years for the murder of Anna Karela and to a consecutive sentence of 14 to 20 years for the murder of Kimberly. On appeal the defendant initially argues that the trial court erred in denying his motion to suppress physical evidence seized and oral statements taken from him as a result of an allegedly unlawful arrest.

At 4:30 P.M. on November 17, 1969, Jerome Karela, the husband of Anna and the father of Kimberly, returned from his employment to his home at 3715 Prairie Avenue, Brookfield. He observed that the door leading to his second floor apartment was open, although it was customarily locked. Upon entering the apartment he found the body of his 23-year-old wife lying on the kitchen floor. She had been stabbed many times and was naked from the waist down with her ankles and wrists bound. He called the Brookfield Police Department and then entered the bedroom of his 13-month-old daughter who was lying face up and lifeless in her crib. After this he went to the first floor apartment to check the condition of his grandmother; she was unharmed and unaware of what had taken place in his apartment.

Brookfield police officers arrived at the apartment at approximately 4:40 P.M. The bodies of both Anna and Kimberly were still warm, and a cloth which had been knotted tightly around the throat of Kimberly was removed. A fire department inhalator was summoned and an unsuccessful attempt was made to resuscitate Kimberly. The cause of her death was determined to be strangulation; her mother died from loss of blood — the result of 35 stab wounds. Large quantities of blood could be seen throughout the apartment.

More police officers arrived on the scene. There was no indication that an intruder had entered by force and a thorough inspection was made of the apartment. A blue receipt card was found on a counter in the kitchen bearing the printed name, Sheridan Peter Pan Studios; it bore the notation "$3.00" and was signed "Kenny." Sergeant Hymel of the Brookfield police, who was participating in the investigation, received no answer when he telephoned Peter Pan Studios. He thereupon contacted Detective Lanners of the Chicago Police Department and asked his assistance in locating the owner of the studios in order to determine the identity of the individual who signed the receipt. From Burton Schender, an owner of the studio, Lanners learned that the only "Kenny" recently employed by Peter Pan was Kenneth Fetterman whose address was 109 South Grove Street, Oak Park. Schender told Lanners that Fetterman's employment had been terminated because his driver's license was revoked or suspended. While employed by Peter Pan he had taken baby pictures on October 14, 1969, in the Karela home. A neighbor reported that Mrs. Karela was expecting the pictures to be delivered. Lanners checked police files and discovered that Fetterman had been previously sentenced to the penitentiary for a sex offense. He also obtained a photograph of Fetterman.

Lanners then went with another detective to the Oak Park Police Station where he met Sergeant Hymel. They were joined by Detectives Grams and Fleming of the Oak Park Police Department, and at about 10:30 P.M. the five officers proceeded to Fetterman's Oak Park apartment. No one responded when they knocked on the door. They then returned to the Oak Park Station and Detective Lanners telephoned the apartment. A woman answered the phone and he asked for "Connie." Apparently misunderstanding him the woman stated, "he is not home." Detectives Grams and Fleming went back to the apartment and kept it under surveillance; they were later joined by Sergeant Hymel and three other officers. At about 5:00 A.M. an officer rang the bell of the apartment and the defendant's mother answered the door. She was asked whether the defendant was home and she said that he was not. After the officers were admitted to the apartment, they told her that they wished to talk with her son in connection with a double homicide in Brookfield as a card from the Peter Pan Studios had been found in the home of the victims which bore his name. The mother stated that her son did not work for the studio any more because his driver's license had been taken from him. She also informed the officers that the last time her son was at the apartment was the previous evening between 7 and 7:30 P.M. at which time she could hear him washing. At the hearing on the motion to suppress the officers who spoke with her stated that she told them that the defendant washed his raincoat and then left the house. When testifying herself, however, she declared that she did not know whether or not her son washed the raincoat, although she may have told the officers he did. Without objection from the defendant's mother Detective Grams walked into the defendant's bedroom; he seized bottles on top of the defendant's dresser as well as one from a partially opened drawer as he believed they contained illegal drugs. The officers remained in the apartment approximately one-half hour. The mother told them that her son was driving her green AMX car as his car was being repaired.

After leaving the defendant's home most of the officers continued surveillance of the premises; Officer Nelson and Detective Sullivan of the Oak Park Police Department joined them. Shortly after 9:00 A.M. the defendant drove the green AMX automobile into the alley behind 109 South Grove and stopped in front of the garage. Sullivan approached the vehicle with his gun drawn and announced his office. Nelson opened the door of the car on the driver's side and Fetterman stepped out. He was arrested and was "patted down" by Sullivan. Meanwhile, Nelson looked into the car and saw a map and a light colored trench coat. Sergeant Hymel walked up to the car and noticed that the map had reddish brown stains on it and that it was a map of Brookfield. He also observed a newspaper featuring the Karela murders, and a stain on the driver's side of the car which appeared to be dried blood. The defendant was warned of his constitutional rights and was informed he was being taken into custody as a result of the investigation of the murders in Brookfield and for the possession of dangerous drugs.

An arrest without a warrant is lawful if a criminal offense has been committed and the arresting officer has a reasonable basis for believing that the person arrested committed it. (People v. Wright (1969), 42 Ill.2d 457, 248 N.E.2d 78; People v. Asey (1967), 85 Ill. App.2d 210, 229 N.E.2d 368.) The test whether the officer has reasonable grounds for his belief is whether a reasonable and prudent man, having the knowledge the officer possessed would believe the person arrested guilty of the offense. (People v. Carroll (1971), 133 Ill. App.2d 78, 272 N.E.2d 822.) The officers who arrested Fetterman knew that he had been convicted of a sex offense, and had been in the Karela home taking baby pictures about one month before the murders. The condition of Mrs. Karela's body, riddled with knife wounds and naked from the waist down to her ankles with her wrists and ankles tied, strongly suggested that sexual perversion might be connected with the crime. The entry into the Karela apartment did not appear to have been forced and it was, therefore, likely that the perpetrator of the crime was someone known by Mrs. Karela. She was expecting the baby pictures to be delivered; it was reasonable to infer that she would have admitted Fetterman into her home thinking he was bringing them.

• 1 Also, the apartment contained pools of blood, and it seemed obvious that her murderer could not have escaped without getting blood on his clothing which he would desire to remove. The police had learned that on the single, brief occasion Fetterman returned to his apartment between the time of the crime and that of his arrest, he washed his raincoat. He then left his apartment without informing his mother where he intended to spend the night and did not return until 16 hours later. Reasonable cause to make an arrest means something less than evidence which would result in a conviction, and the existence of probable cause depends upon the factual and practical considerations of every day life. (People v. Jones (1967), 38 Ill.2d 427, 231 N.E.2d 580.) Therefore, having considered all the facts and circumstances known to the police officers, we conclude that they had probable cause to arrest the defendant for the murders of Anna and Kimberly Karela. Having reached this conclusion, there is no need to discuss the defendant's alternative contention that the arrest was unlawful because there was no probable cause to arrest him as a narcotics violator; nor is there need to consider the extent to which he could be interrogated and his vehicle searched if he had been arrested for driving without a driver's license.

• 2 Following his arrest Fetterman made an admittedly false exculpatory statement which he contends should have been suppressed. In deciding this question it must be determined whether he was informed of his constitutional rights and given the opportunity to exercise them. The State's testimony showed that he was advised of his rights on three separate occasions. He was informed of them at the time of the arrest; at the Oak Park Police Station he was advised of his rights before he was charged with a narcotics offense and he was warned again before the inquiry began into his involvement in the Karela murders. Fetterman told the officers that he understood them. There was also testimony that a telephone was located near him when he was being questioned, and that he declined the opportunity of using it. On the other hand, Fetterman testified that when he was arrested he was not advised of any rights. He said that subsequently he was advised of the right to remain silent, but he was not permitted to telephone a lawyer although he requested an opportunity to do so. The trial court's finding that the defendant was informed of his constitutional rights was supported by the great weight of the evidence, as was its decision to deny the motion to suppress the defendant's statement. The statement was given freely without any compelling influences and was admissible. People v. Washington (1969), 115 Ill. App.2d 318, 253 N.E.2d 677.

• 3 Fetterman also argues that a band-aid taken from his hand by the police after his arrest should have been suppressed. The officers had reasonable cause to believe he had stabbed Anna Karela. Evidence that his own hand had been cut was material and relevant to prove his guilt for it could be inferred that he sustained the cut when he committed the crime. In People v. Hester (1968), 39 Ill.2d 489, 237 N.E.2d 466, the seizure of a suspect's bloody clothing in the course of a police investigation was approved and we see no reason why the defendant's band-aid should be treated differently.

• 4, 5 After the defendant was taken into custody the green AMX automobile was brought to the Oak Park Police Station where it was searched and physical evidence was seized. Fetterman contends that the search and seizure were improper. We find that the actions of the officers were correct. Assuming as they did that Fetterman was the perpetrator of the crimes, the officers might reasonably have expected to find evidence in his automobile tending to establish his guilt. They had observed the map of Brookfield with the reddish brown stains on it and Fetterman's coat merely by looking in the door and window of the automobile. These could have been seized immediately and justified by the plain view doctrine. (People v. Joyner (1972), 50 Ill.2d 302, 278 N.E.2d 756.) That the automobile was moved from the alley to the police station where it was thoroughly searched creates no constitutional difficulty; this procedure was sanctioned in Chambers v. Maroney (1970), 339 U.S. 42, 26 L.Ed.2d 419, 90 S.Ct. 1975. There it was observed that the auto which could have been properly searched on the highway could just as well be searched without a warrant at the police station, since probable cause to search it continued. The movement of the vehicle to the police station created no duty to get a search warrant. (Cf. People v. Canaday (1971), 49 Ill.2d 416, 275 N.E.2d 356.) Therefore, the defendant's motion to suppress the physical evidence was properly denied.

As to the trial itself, the defendant's principal contention is that the evidence was insufficient to sustain the guilty verdict. It was established that Fetterman, while an employee of the Peter Pan Studios, visited the Karela residence on October 14, 1969, and took photographs of Kimberly. The pictures were scheduled to be delivered to the Karelas during the week beginning November 10th, but they were still at Peter Pan Studios on November 17th, the day the murders were committed. Fetterman's last day as a photographer was October 17th.

Between 11:00 A.M. and noon on November 17th, Fetterman and an acquaintance, Overton Tyson, were visiting a mutual friend, Shirley Schmelter, at her home at 3142 West Belden Avenue, Chicago, where she lived with her mother, Mrs. Rose Parr. Fetterman and Tyson drove from her home in Fetterman's green AMX automobile to purchase cigarettes. While doing so Fetterman asked Tyson to join him in robbing a house in the suburbs where he had taken a baby's picture. Tyson testified that Fetterman told him that the lady and the baby would be at home when he robbed the house, and that when he originally took the baby's picture the lady turned around and "hit him in the face with her tit." Although Tyson admitted in his testimony that years earlier he robbed houses, he refused to ...


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