APPEAL from the Circuit Court of Cook County; the Hon. JAMES
M. BAILEY, Judge, presiding.
MR. JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:
Rehearing denied February 18, 1976.
After a jury trial Lorenzo Turner (defendant) was found guilty of aggravated kidnapping (Ill. Rev. Stat. 1973, ch. 38, par. 10-2) and intimidation (Ill. Rev. Stat. 1973, ch. 38, par. 12-6). He was sentenced to concurrent terms of 75 to 225 years upon the first conviction and 3 to 10 years upon the second. He appeals.
In this court, defendant contends that the trial court improperly denied his motion to quash his arrest and to suppress his subsequent confession; a complaint for search warrant and the warrant were improperly received in evidence during a hearing on this motion; admission into evidence of the results of the tracing of a telephone call without court order violated Federal law; the proof fails to show guilt beyond a reasonable doubt; it was error for the trial judge to allow counsel for defendant to participate directly in the voir dire examination of prospective jurors; the instructions were improper and conduct of the Assistant State's Attorney in cross-examination of the defendant and closing argument was improper and prejudicial.
The State contends that the trial court properly admitted defendant's oral and written confessions in evidence because the motion to quash the arrest was properly denied and the statements by defendant were free from any taint from that arrest; if admission of the confessions was error, it was harmless; evidence of the results of a telephone trace was properly received; the evidence proved defendant guilty beyond a reasonable doubt; regarding selection of the jury, defendant failed to preserve the issue for review and failed to show prejudice resulting from the trial court's action; the jury was properly instructed and the prosecutor's questions on cross-examination and comments on closing argument did not deny defendant a fair trial.
The evidence received by the court on the hearing of defendant's motion to quash his arrest and suppress his confession will be subsequently stated when we consider these issues. This opinion will commence with a summary of the pertinent evidence during the case in chief.
Allen Bernstein was last seen by his wife when she left their home about 8:30 a.m. on Friday, April 21, 1972. Mrs. Bernstein testified that when she left her husband was home and his Chevrolet automobile was in their garage. She returned at about 3 p.m. and found a message to call her husband; he and his automobile were gone. Their daughter told her that Bernstein had called and requested that she call him. The telephone number was that of a cleaning plant on 63rd Street in Chicago, previously owned by Bernstein and sold to defendant. Mrs. Bernstein had never seen or spoken to defendant before that date but she recognized the telephone number.
She expected her husband to return at 6 o'clock that night. When he did not do so, at about 7 p.m., she called the defendant's wife. She made other calls but was unable to locate her husband. About 11:30 p.m. Mrs. Bernstein received a telephone call from an unidentified man who told her that he had her husband and wanted $100,000. She heard her husband's voice in the background stating instructions about raising the money. During this conversation, Mrs. Bernstein wrote a note to her daughter to call the police. The caller told her that he would call at 10 a.m. the next day and that she was not to call the police. When she objected regarding the amount of money, he told her to get what she could. Police officers arrived and Mrs. Bernstein told them that in her opinion she had spoken on the telephone to two black males. The Federal Bureau of Investigation was also alerted.
Next morning Mrs. Bernstein received another telephone call from a person she described as a "black male" who inquired about the money. She told him that she had raised $33,000. Apparently he was satisfied and told her that she would get another call at 4 p.m. She asked if she could speak to her husband but was told this would be too difficult. At 4:15 p.m. she received another telephone call from a person with the same voice. He instructed her to go to the Clark gasoline station on 92nd Street and Stony Island Avenue, in Chicago, at 8 p.m. with the money. She was directed to make sure that no one followed her and she was to wait for a call in the telephone booth at the station.
Agents of the Federal Bureau of Investigation had Mrs. Bernstein wear a device so that they could hear everything she said. She followed her telephone orders and, about 7:15 p.m. she drove from her home in Flossmoor to the designated telephone booth. There, she received a call at about 8:15 p.m. (April 22, 1972). The caller, with the same voice she had heard before, told her to leave the money by an incinerator and garbage can in the alley close to Harper Avenue and 88th Street and then to go home and await telephone instructions as to where to pick up her husband. She followed these orders. She had the money in $20 bills all dusted with fluorescent powder by Federal agents. She left it in the alley and then drove home.
Shortly after 9:30 p.m. she received a telephone call from the man with the same voice. He told her that he could not pick up the money because the place was surrounded by police. He directed her to go back, take the money and return to the Clark gas station. She did this and about 10:45 p.m. she received a call from the man with the same voice. He ordered her to wait 5 minutes, then drive around for 20 minutes and then go back to the phone booth. She did so and returned to the booth about 11:20 p.m.
Here she received another call from this person with the same voice. He instructed her to call another number which she did. For a time the line was busy but then her call was answered by the same person. He said he did not know where she could put the money. After further conversation, he told her that he would call her at 9 the next morning. She drove home but received no further communication.
Lena Breeland testified that she was employed at the cleaning plant operated by defendant at 1339 West 63rd Street, in Chicago. She was at work on Friday, April 21, 1972, from 8 a.m. to 6 p.m. Defendant came to the plant at about 1 or 1:30 p.m. and went upstairs to his office. Allen Bernstein arrived there about 3 or 3:30 p.m. He spoke briefly with another employee and then went to the back of the store toward defendant's office. She did not see Bernstein leave the plant that day and has never seen him since. She did not recall having seen the defendant that day after Mr. Bernstein had arrived until about 6:15 p.m. before she left work.
Claude Fields, then employed by defendant, first saw defendant that day between 2 and 2:30 p.m. at the cleaning plant. He later saw Bernstein arrive in an orange and white Chevrolet automobile. Bernstein went upstairs to defendant's office. Fifteen minutes later, Fields received a telephone call for Bernstein from a male Caucasian. He went upstairs to the defendant's office and knocked on the door. Defendant stepped out and Fields looked into the office and saw Bernstein there seated on a chair. Defendant told him that Bernstein did not want anyone to know that he was there. Fields accordingly went downstairs and told the caller Bernstein was not at the plant. The witness saw defendant come downstairs and move Bernstein's car some 15 or 20 minutes before the plant closed. He did not see where defendant took the car and was not sure that he actually saw defendant enter the car or behind the wheel. He did not see Bernstein at any time thereafter. Some days later, when Fields learned about defendant's arrest, he spoke to his father and told him that he had seen Bernstein leave the plant. The witness also testified that defendant owned a German shepherd watchdog which stayed in the plant after closing time. Sometime before April 21 he had been introduced by defendant to an individual referred to as "Big Man."
The record shows participation in surveillance and investigation by agents of the Federal Bureau of Investigation working in cooperation with Chicago police officers. They had Mrs. Bernstein under audiovisual surveillance during the material times and at material places detailed in her testimony concerning her efforts to pay the ransom for return of her husband.
Eight Federal agents testified during the State's case. A detailed statement of their surveillance of the activities of Mrs. Bernstein and of defendant during the night would add unnecessarily to the length of this opinion. It is sufficient to summarize their evidence by stating that the testimony of the agents constituted a complete corroboration of the testimony of Mrs. Bernstein regarding her activities on the night of April 22, 1972, including the telephone calls she placed and certain of the things that she said during these calls. In addition, the testimony of these agents shows that defendant was observed in the vicinity of 88th Street between Harper Avenue and Stony Island Avenue starting at about 8 p.m. He was driving a dark colored 1965 Ford automobile with Illinois license number VB-2393. One of the rear taillights of his car had been broken by the agents for greater certainty in identification. Their evidence also showed their observation of Mrs. Bernstein entering the alley in which the ransom money was left and verified the presence of a package at a point near the incinerator.
The agents also saw the Ford automobile, driven by defendant, drive about in the vicinity of the entrance to the alley and actually drive into the alley. The agents also testified that about 10:47 p.m. defendant made a telephone call from a public booth in the vicinity of 87th and Dorchester Streets. At about 10:57 p.m. the agents observed defendant's car and Mrs. Bernstein's car pass each other, being driven in opposite directions, and they saw the Ford car make a U turn and follow Mrs. Bernstein's vehicle for a time. The agents also testified that between 11:35 and 11:45 the defendant made a telephone call from another public booth at 8524 South Stony Island Avenue. The number of this telephone was 768-9527 which was the same number that Mrs. Bernstein had previously received directions to call.
On the morning of April 23, 1972, a Federal agent and a Chicago police officer saw the Ford car parked at defendant's cleaning plant on 63rd Street. They saw the same person who had previously driven the car make several trips from the car into the plant carrying clothing, plastic or paper. Later that same day, at about 1 p.m., another team of a Chicago police officer and a Federal agent followed the Ford car northbound. The car, driven by defendant, was stopped near 2350 South State Street, in Chicago, and defendant was arrested. Another car with a Chicago policeman and several Federal agents was present at the arrest.
A police officer of the city of Chicago testified that on April 23, 1972, he had followed the Ford automobile driven by defendant from 31st Street and the Dan Ryan Expressway to 22nd and State Streets. In the area of 2350 South State Street a squad car, containing a Chicago police lieutenant, Commander of Area 1, General Assignments, and several Federal agents, curbed the Ford and arrested the defendant who was driving. A search of defendant disclosed a .38-caliber, five-shot revolver in a holster worn under one arm. Defendant was also wearing an empty holster under his other arm and was carrying 10 rounds of ammunition.
Early Saturday morning, April 22, Federal agents observed Bernstein's Chevrolet automobile in a south side parking lot. That night the car was photographed and examined. No fingerprints were found except one, unsuitable for comparison, on the back of the steering wheel. In the opinion of a police technician, it was unusual to find only one print in an automobile. There were a number of small pieces of wet paper inside the car which could have been used to wipe the interior. Some red liquid was discovered in the wheel of a spare tire in the trunk.
Timothy Zamb, an expert microanalyst for the Chicago Police Department, testified that he analyzed this fluid and identified it as human blood, type "O". Bernstein's army identification tags listed his blood as type "O". The microanalyst also took some reddish brown material from the spare tire in the trunk of Bernstein's car. He found fibrous deposits together with this blood. These deposits were microscopically identified by him as human and animal hair.
Zamb further testified that he was given samples of Bernstein's hair, hair from the Bernstein family's dog and hair from the German shepherd watchdog kept in defendant's plant. These samples were viewed with a stereoscopic microscope to examine their morphological characteristics. He concluded that the animal hairs found in the trunk of Bernstein's car were morphologically similar to the hair of defendant's dog and that some corresponded to the hair of the Bernstein family's dog. Human hair found in the trunk was identical to that which came from Bernstein's head.
The State called an employee of the Illinois Bell Telephone Company who qualified as an expert in the matter of tracing telephone calls. On April 22, 1972, this witness had received a request from the Federal Bureau of Investigation to trace a call being made from the telephone booth at the gasoline station on 92nd Street and Stony Island Avenue. The number of this telephone is 734-8673. The expert testified that at 11:50 p.m. on April 22, 1972, he completed the entire tracing process which showed that a call had been made from that number to 768-9527 which is a public telephone at 8524 South Stony Island Avenue. The expert stated that his trace had been tested and found accurate.
He was first requested to trace calls coming into the telephone booth at the gasoline station at 7:34 p.m. on the night in question. Three attempts to make such traces were unsuccessful but the last trace which started at 11:38 p.m. was successful. The trace showed simply and only the telephone number from which the call to the Clark station telephone booth had been made.
After defendant was arrested by police and Federal agents on April 23, 1972, he was taken to a conference room where he was questioned by police. There is evidence that he was given proper Miranda warnings. Defendant first told the police that he did not know why he had been arrested. They then advised him of information they had regarding his activities on the preceding day. The defendant then admitted that he had participated in the kidnapping of Bernstein but stated that he had been forced to do this at gunpoint by a stranger who had held him up at his cleaning place. About that time Assistant State's Attorney Di Vito entered the room and participated in the questioning. After further discussion defendant gave the police a complete verbal confession.
Defendant stated that he had purchased a cleaning plant from Bernstein in August of 1970. In January of 1971 the plant was almost totally destroyed by fire. Defendant stated that he believed that Bernstein was responsible for this; that lending agencies had refused loans to him because of Bernstein and that the insurance company had refused to pay his claim because of Bernstein's activities. Defendant then conceived the idea of holding Bernstein for ransom so that he could obtain money required to repair the loss. Accordingly, defendant invited Bernstein to his plant at one time but defendant did not consummate the kidnapping. He thought that he needed assistance in the project and obtained the help of an unnamed person referred to as "Big Man." They agreed upon a division of labor whereby Big Man would hold Bernstein as a prisoner and defendant would obtain the ransom money.
Defendant also stated that Big Man came to the plant before Bernstein. Defendant gave Big Man a .38-caliber pistol from his own holster. When Bernstein arrived defendant again requested a loan from him. When this was refused, Big Man was summoned. He kept Bernstein in defendant's office while defendant went downstairs and moved Bernstein's car to the rear of the cleaning place. After the employees had gone, defendant and Big Man took Bernstein in the latter's car to a place on the south side of Chicago at 115th Street and Vincennes Avenue. Bernstein's car was left there. Big Man took Bernstein away with him into the car of another person. Defendant went back to the cleaning place.
About 9:30 that night, Big Man returned and went with defendant to a telephone booth at 39th Street and the Dan Ryan Expressway where defendant made the initial telephone call to Mrs. Bernstein when a ransom of $100,000 was demanded. Defendant then selected the telephone booth at the Clark gasoline station on 92nd Street and Stony Island Avenue where he would have Mrs. Bernstein wait for his calls. Defendant stated that he himself made all subsequent calls to Mrs. Bernstein.
At about 8:40 p.m. a stenographer was called and the process of reducing the confession to writing began. Police investigators and an Assistant State's Attorney were present. When the written statement was partially completed, defendant's attorney called and at his request the interrogation ceased. Defendant did, however, read, correct, initial the changes and then sign the ...