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People v. Lovitz

OPINION FILED JUNE 28, 1976.

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

v.

GENE LOVITZ, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Du Page County; the Hon. BRUCE R. FAWELL, Judge, presiding.

MR. JUSTICE HALLETT DELIVERED THE OPINION OF THE COURT:

Following a trial by jury, the defendant was convicted of murdering his wife and sentenced to not less than 14 nor more than 45 years in the penitentiary. He appeals, contending: (1) that the trial court erred in denying his motion to suppress physical evidence; (2) that he was denied a speedy trial; (3) that the evidence failed to prove him guilty beyond a reasonable doubt; (4) that the trial court erred in not instructing the jury that the evidence must exclude every reasonable theory of innocence; and (5) that the trial court's failure to grant a new trial was erroneous in light of newly discovered evidence. We find no merit in any of these contentions and affirm.

At a preliminary hearing to suppress evidence, Officer James Mullany of the Glen Ellyn Police Department testified for the State that on the morning of August 19, 1973, he was working the radio desk at the station when he received a telephone call from an Officer Bruski of the Chicago Police Department. Bruski stated he had information that a Eugene Lovitz had killed his wife in Glen Ellyn, that the killing had taken place two days before, that the woman "must be lying dead" somewhere in Glen Ellyn, and that Eugene Lovitz was "going to skip town with their two year old child." Upon receiving this information, Mullany made a search of the department records and arrest files but failed to find the name Eugene Lovitz. At 2:17 p.m. on the afternoon of the same day, Mullany received a second call with reference to the same information, this time from an unidentified caller. In addition to corroborating Burski's statement, the second caller mentioned the name Donna Lovitz and informed Mullany that Eugene Lovitz was the manager of an apartment complex somewhere in Glen Ellyn. With this additional information, Mullany located the address of an apartment registered to a Eugene and Donna Lovitz, and three members of the Glen Ellyn Police Department proceeded to 17 North Main Street, Glen Ellyn, where they were joined by an Assistant State's Attorney. They observed the name Lovitz on the mailbox of apartment 1A. The apartment was locked, all the drapes were drawn, and there was no response to repeated knocking on the door. One of the officers walked to the rear of the apartment and noticed numerous flies between the curtain and the window in one of the rooms.

The police opened the front door with a pass key obtained from the assistant manager of the complex, and, upon entering the living room, detected an odor of decaying flesh. They proceeded into a bedroom where they discovered a large object on the floor covered with a bedspread, some sofa cushions, two lawnchairs, and a bag of Christmas ornaments. The object was the body of a partially nude female, later identified as the wife of Eugene Lovitz. They proceeded to look around the apartment and discovered numerous articles in plain view which were later admitted at the trial as exhibits.

On August 23, four days after the body was discovered, the defendant voluntarily surrendered to the F.B.I. in Biloxi, Mississippi, stating that he thought he was wanted in Illinois for shooting his wife. At that time he made a statement to the arresting officers and turned over the gun later determined to be the murder weapon.

On August 25, 1973, the defendant was returned to Illinois, and on November 15, an indictment charging him with three alternative counts of murdering his wife was handed down by the Grand Jury. On April 3, 1973, the defendant was brought to trial and the State outlined the discovery of the body described above. The pathologist who performed an autopsy on Donna Lovitz's body testified that he removed a bullet from a contact wound located in the right rear of the skull about three inches behind the ear.

The defendant's own testimony placed the time of death sometime early on the morning of August 17, 1973, and there was no contrary testimony on this point. John Rehs, a process server for the Du Page County sheriff's office, testified that at approximately 11:30 a.m. on August 17, 1973, he went to the defendant's apartment to serve a summons for eviction. The defendant came to the door and accepted service. Also on August 17, between 11 a.m. and 12 p.m. a letter carrier delivered a certified letter to the defendant's apartment and the defendant signed for it personally.

Shirley Lovitz, the defendant's ex-wife, testified for the State that on the afternoon of August 17, the defendant and his two-year-old daughter were at her house when she returned home from work around 4 in the afternoon. He told her that his wife was dead and that he wanted her to take care of his daughter. When Shirley became upset and asked if he was "kidding," the defendant replied that he was "kidding" and Shirley left to go grocery shopping. When she returned, the defendant and his daughter had gone.

The next afternoon, the defendant returned and told Shirley that Donna was dead and that her death was an accident. Their 22-year-old son Bryant was home at the time and he and the defendant drove off together. They returned to Shirley's home late that evening and Shirley told them to "get out." They left together and Bryant was still with his father when they surrendered to the F.B.I. four days later in Mississippi.

Deborah Gaylord testified that at approximately noon on August 18 the defendant came to her home and asked her to take care of his two-year-old daughter for a few days while he took his wife up to Wisconsin to "sober up." She took the child from his car and he indicated he would return for her the following Tuesday.

The defendant took the stand in his own behalf and offered a story of self-defense and accidental death. He stated that on August 17, 1973, he and his wife had been drinking heavily since the afternoon of the preceding day and that an argument ensued as his wife reached a "final plateau of drunkenness." He testified that she went into the bedroom and returned with a loaded gun. She threatened to kill him and their daughter and when he attempted to leave the apartment she blocked his path to the door. They struggled, and in an attempt to take the gun from her it discharged and the bullet struck her in the head. Realizing immediately that she was dead, the defendant dragged her body into the bedroom and covered it so that their two-year-old daughter wouldn't see her mother dead.

The defendant then lay on the couch in a daze and contemplated suicide until the process server knocked on the door and brought him to his senses. He said nothing about the death to the process server or the mailman who followed shortly with the certified letter because he felt that neither of them could handle the situation. The defendant maintains that he intended to call the police, but that he didn't want his daughter taken to a police station and in his dazed condition he was unable to cope with the terrible situation.

There was testimony that the evening of the day that Donna Lovitz died, the defendant picked his car up at the repair shop, and the following morning, he went to his place of employment to pick up his check book so that he could cash a check for gasoline money.

The defendant testified that after Shirley told them to leave her house, he and his son Bryant drove around while he debated between suicide and going to the police. They abandoned their car the following week in New Orleans and then called the F.B.I. in Biloxi. When he gave a statement to the arresting officers on August 23, the defendant stated that his son had been present and had actually witnessed the accidental death of Donna ...


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