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People v. Henenberg





APPEAL from the Circuit Court of McHenry County; the Hon. WILLIAM J. GLEASON, Judge, presiding.


The defendant was convicted of both armed robbery and murder after a jury trial. He was sentenced to concurrent terms of 150 to 300 years for murder and 50 to 150 years for armed robbery. *fn1 He appeals, contending that the trial court committed reversible error in allowing the State's witnesses to testify that they met defendant at penitentiaries 6 and 16 years prior to trial. He additionally contends that he was deprived of a fair trial by other evidentiary rulings and that, in any event, the court erred in entering more than one judgment of conviction and in imposing concurrent sentences.

The defendant does not question the sufficiency of the evidence. However, reference to the testimony is required for an understanding of the issues which are raised.

Hunters found the body of Martin Zlogar on a farm in McHenry County on December 13, 1969. In the opinion of the pathologist the victim had been dead for about 90 days. He was last seen at his residence in Illinois on September 12, 1969. He had indicated to his roommate and co-worker that he was going to Minneapolis on business and to see a girl friend and would not return to work at O'Hare Airport until Tuesday, September 16. The manager of a hotel near Minneapolis testified that a person who signed his name as Martin Zlogar had checked into the hotel between 8 a.m. and 4 p.m. on Saturday, September 13, and had checked out before noon on Sunday, September 14. The woman whom Zlogar had gone to visit in Minneapolis testified that she had seen him on a Saturday around the time in question but could not be certain of the date.

The defendant was arrested in St. Louis on December 30, 1969. He was driving Zlogar's car which contained some of the victim's clothing and other personal effects. Defendant was also in possession of Zlogar's credit cards and other personal papers. The State adduced evidence relevant to defendant's activities in September, 1969, the month in which the death had occurred. There was testimony that defendant had signed the register in a motel in Jacksonville, Illinois, on September 9, 1969, as "Frank Henenberg" and that on September 12, 1969, he had identified himself in Davenport, Iowa, as Henenberg. With the aid of handwriting experts, evidence was presented tending to demonstrate that the defendant had purchased gas in Rockford, Illinois, on September 13, 1969, and in Normal, Illinois, on September 14, 1969, using a credit card belonging to Martin Zlogar and signing Zlogar's name to the voucher. There was also testimony that one whose signature was identified as Henenberg's by handwriting analysis checked into the Jacksonville, Illinois, Holiday Inn at 11:55 p.m. on September 14, 1969, stating that he was driving a 1969 Chevrolet, and further evidence that that car which Zlogar drove before his disappearance was also a 1969 Chevrolet. There was evidence that the car Henenberg had previously driven was a 1963 Chevrolet.

The State produced a gun which had been found in a creek near a road between Springfield and Jacksonville, Illinois. The gun was a .32-caliber weapon with four cartridges. Because the lead objects found in the victim's skull were fragmented, there was no positive evidence that the objects which were found in the deceased's skull were from the particular gun placed in evidence. There was testimony, however, that the weight of the fragments was consistent with the weight of a .32-caliber bullet and that the creek weapon was misaligned. There was also expert evidence that the fragments found in the victim's skull and the cartridges found in the creek weapon had the same chemical composition. However, the chemical expert testified that this composition was not unusual and could be found in other bullets.

David DeClue testified at trial that on September 2, 1969, he and the defendant took a gun from a tavern in St. Louis and drove north to Grafton, Illinois, intending to go to River Falls, Wisconsin, to look up one Jerry Bugbee with the intention of committing some burglaries. On September 3, DeClue said he sold the gun to the defendant, bought a used car and returned to St. Louis. DeClue next saw defendant on September 16 or 17 in St. Louis and testified that defendant told him he had thrown the gun away. Jerry Bugbee and Sandra Bugbee, his wife, testified that defendant arrived unexpectedly at their home in River Falls, Wisconsin, on the morning of September 4, 1969, and that he was with one or both of them between September 4 and September 9, except for the night of Saturday, September 6 and the morning of Sunday, September 7. He was next seen by the Bugbees on September 12 in River Falls, Wisconsin. The Bugbees testified that defendant had a gun when he arrived at their home on the 4th and had the same gun during his brief visit on the 12th of September.

Dr. Stein, who performed the autopsy on the victim, testified that there was a large round hole in the victim's skull and nearby a smaller irregularly shaped hole. One large and one small lead fragment were found in the victim's skull. It was his present opinion that the smaller hole was formed by a shearing of a missile due, "in all probability to a badly aligned barrel and cylinder." It appeared, however, that Dr. Stein had testified at the original trial that he believed that the two holes were caused by a single bullet which had entered the skull ricocheting inside it with a fragment flickering and forming the small irregular hole. He said that he had changed his opinion in 1970 or 1972 but had not advised the State's Attorney although he had stated the change to pathology students in lectures.

Prior to trial defense counsel filed a motion requesting that the prosecution be barred from using evidence or making any comment relating to the prior criminal record or activities of the defendant which were not related to the murder of Martin Zlogar. As particularly relevant here, defense counsel moved to exclude any testimony by Jerry Bugbee and David DeClue which would indicate each had known Frank Henenberg in prisons at previous times. The trial court denied the motion. At the trial David DeClue was asked by the State's Attorney where he had met defendant and over objection stated he had met him at a State penitentiary in Missouri; that he had known Henenberg for about 16 years; and that he, DeClue, had spent 14 years in State and Federal prisons for burglary and car theft and was last in prison in 1968. Bugbee was also asked when he first met Frank Henenberg, and he answered, "1966, in the Arkansas penitentiary." Defense counsel objected, and the court overruled the objection. Thereafter Bugbee stated that he was serving a 3-year term for grand larceny in the Arkansas penitentiary and had spent approximately 4 or 5 years in Federal or State penitentiaries.

• 1 Defendant contends that permitting his two friends, who had seen him during the first part of September, 1969, to state that they had met him in penitentiaries at two separate times 10 years apart gave the jury the impression that defendant had a propensity to commit crimes and destroyed his presumption of innocence. The State responds that the testimony of Bugbee and DeClue was independently relevant to the issues in the case and that, in any event, the error would be harmless beyond a reasonable doubt.

Defendant first argues that the court should have ordered the State's witnesses DeClue and Bugbee to avoid testifying that they had met defendant previously in penitentiaries in accordance with defendant's pretrial motion. He further argues that the court's failure to sustain his objection to the answers at trial and to instruct the jury to disregard the answers compounded the prejudicial error and deprived him of a fair trial.

The State responds that the testimony of the witnesses was introduced for the relevant purposes of showing that defendant was going to Wisconsin with intention to commit burglaries, of identifying the gun which the State sought to establish as the murder weapon, and of establishing that defendant had a different car after the murder. It is argued that the relatively small amount of the testimony which indicated that the witnesses had met defendant while they were in the penitentiary was part of the continuing narrative to show why defendant came to them in particular to inquire whether they wanted to commit burglaries in Wisconsin. The State maintains that if the court's ruling was error at all it was harmless beyond a reasonable doubt.

Generally, evidence of other offenses may be admissible if relevant for any purpose other than to show a mere propensity on the part of the defendant to commit the crime charged. (People v. Cole, 29 Ill.2d 501, 503 (1963).) We have held that the actual need for the evidence, even though relevant, must be considered in the light of the issues and the other evidence available to the prosecution and must be balanced against the prejudicial effect of its admission upon the jury. (See People v. Butler, 31 Ill. App.3d 78, 80 (1975).) Even though the testimony does not charge the defendant directly with the commission of another crime, it may also be error to admit evidence which suggests prior unspecified criminality of the defendant. See People v. Williams, 72 Ill. App.2d 96 (1966); People v. Colston, 81 Ill. App.2d 75 (1967); People v. Pitts, 1 Ill. App.3d 120 (1971); People v. Hawkins, 4 Ill. App.3d 471 (1972); People v. Hudson, 7 Ill. App.3d 333 (1972); People v. Smith, 12 Ill. App.3d 295 (1973).

• 2 In the circumstances before us whether defendant became acquainted with the witnesses in the penitentiary does not appear to have independent relevance to the issues involved in the crimes of murder and armed robbery charged against the defendant. Nor can we agree with the State's contention that the answers were a necessary part of the witnesses' narratives. Their testimony, insofar as it related to the proof of circumstances tending to prove defendant guilty of the crimes charged, would have been complete without the reference to the meetings in the penitentiaries. We, therefore, conclude that the trial judge erred in ...

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