APPEAL from the Circuit Court of Lake County; the Hon. THOMAS
R. DORAN, Judge, presiding.
MR. JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:
Defendant was convicted of murder and conspiracy to commit murder after a jury trial. The court entered judgment only on the murder conviction and sentenced defendant to a term of 30 to 60 years' imprisonment. On appeal defendant contends that he was not proven guilty of the offenses beyond a reasonable doubt; that the court erred in denying his motions to suppress evidence; and that various other rulings deprived him of a fair trial. Alternatively, he contends that the sentence is excessive.
The charges resulted from the death of Clifford Atkinson on January 3, 1974. Atkinson's widow, Karolyn, was also indicted on the same charges. She was tried separately and was found not guilty in a jury trial held after defendant's trial.
Several officers testified that they had responded to a reported burglary in progress at the Atkinson home shortly after midnight on January 4, 1974. Karolyn Atkinson told the first officer to arrive that her husband was downstairs holding a burglar. Before he could go down, she stated that her husband was dead. She gave various further explanations to the officers. Finally, she said that she and her husband had heard voices in the basement and he went downstairs. She heard loud noises. Then it was quiet, and she saw a dark figure leave the house. Later she added that her husband took a rifle downstairs with him. Still later she said that the man she saw was a tall Negro wearing dark clothes and yellowish-orange gloves and that the man told her that her husband was only unconscious. She said the man had demanded money, that she told him where her husband's wallet was, that he took the money from it and left.
The officers also testified that Clifford Atkinson's body was at the foot of the basement stairs. There were large, deep cuts on the hands of the deceased and scratch marks under his chin. It was noted that in addition to the stairway to the basement from the house, there was a basement exit which led directly outside. There were no footprints in the fresh snow outside the exit, making it unlikely that it had been used by anyone that evening.
Detective James Sroka testified that he arrested defendant in Waukegan shortly after noon on January 4. Defendant was advised of his constitutional rights at the station and said he understood them. When defendant was asked to empty his pockets on the desk, defendant stated, "here's the key; you can find the knife at the train station." Defendant went to the train station with Officers Sroka and Pasquini where he opened a locker and took out a black attache case with the name "Chris Heflin" imprinted on it. Defendant told Officer Sroka that the knife and the clip from a .22-caliber rifle were in the case. When the case was opened, these items were found, as were rubber gloves and items mainly related to defendant's occupation as a vacuum cleaner salesman. Defendant had only $15 cash at the time of his arrest.
Officer Pasquini testified that when they returned to the station, defendant was again advised of his rights, responded that he understood them, and signed a waiver form after reading it. According to the witness, defendant admitted coming to the Atkinson home at 2 or 3 o'clock on January 3 and remaining there until after the shooting. After Mr. Atkinson came home from work, Heflin remained in the basement. Later, he decided to leave the house but bumped into something, making a noise. Atkinson came to the top of the stairs with a rifle and saw the defendant. The two men started struggling for the gun; defendant remembered he had a knife, which Karolyn had given him earlier in the day; he pulled the knife and Atkinson tried to take it from him.
Karolyn Atkinson joined the struggle. Her husband directed her to obtain control of the gun and to shoot Heflin. Heflin heard a shot and heard Atkinson say, "You shot me. Shoot him." The defendant heard a second shot; Atkinson tried to roll over on his side, but then fell on his back. Heflin heard what he knew was a death groan.
The officer testified that he had asked defendant if he was in love with Karolyn Atkinson and defendant replied that he was. Defendant stated that he and Karolyn had met at a tavern in Waukegan two or three months before, that they had both talked about her divorce but had not made plans one way or the other. Heflin said Karolyn had told him that there was a $30,000 life insurance policy on Clifford but then said that he had made a mistake, that it was house insurance.
At approximately 10:15 a.m. on January 5, Officers Pasquini and Sroka again talked with defendant after re-advising him of his rights. Pasquini told defendant that he did not believe the story about Clifford standing on the stairs with a rifle and asked what really happened. Defendant said he did not want to tell he wanted to protect Karolyn. In response to the officers' questions defendant said that Clifford was building a new house, that he and Karolyn had agreed that they should wait until the house was built, that then she would divorce Clifford and marry defendant, and that they would live in the new house. Defendant stated that Clifford Atkinson did not have the rifle when he was on the stairs.
Officer Pasquini also testified that later that same morning he and Officer Sroka and another officer had further conversation with defendant in which defendant admitted that when he first saw him the deceased had no weapon in his hands.
Dr. Zech, a pathologist, testified that he performed an autopsy on Clifford Atkinson's body at 10 a.m. on the morning of January 4, 1974. In his opinion Atkinson's death was caused by a bullet which penetrated and passed through the lower right lung, the aorta, the posterior wall of the heart and the left lung, causing massive hemorrhaging into the thorax cavities to the extent of about 85% of the body's blood. A second bullet wound was found on the left thigh, just above the knee cap. There were abrasions on both the deceased's hands and his left forearm and deep cuts involving the second and third (or index and middle) fingers of the left hand. Because of the effect of the fatal bullet wound on the circulatory system, the doctor could not be certain whether the cuts and abrasions had been inflicted before or after death.
The State also adduced testimony that a .22-caliber cartridge casing was found near the body. The State called Highland Park Police Sergeant Donald Verbeck as a fingerprint expert. He told of lifting fingerprint impressions from the rifle. There was a stipulation that the fingerprints which the witness had described were the fingerprints of the defendant. On cross-examination the witness testified that there were other impressions that were visible but that these were the only impressions suitable for making a comparison.
The State also introduced a series of letters written by Karolyn Atkinson to the defendant. In a letter written the last week of November, Karolyn wrote that she hoped to visit the defendant that weekend and wanted to see his mother before she went back in the hospital in the following week. In a letter written after Thanksgiving (People's Exhibit No. 22) she wrote that she had been surprised by defendant's expressed intention of trying to get custody of his son from his former wife and wondered how his son would "like having three sisters all of a sudden," an apparent reference to her own children. In a letter dated November 19, 1973, and postmarked November 26, 1973, Karolyn wrote that she enjoyed their weekend and their "2nd Anniversary dinner Sun. afternoon," that she hoped some day to be able to celebrate years instead of months, that she was looking at the 1974 calendar to see when the 21st falls on a Saturday, and that the first time was September 21 which she stated was "a long way from January, but it is a very good date. I don't know exactly how long I'm expected to stay in morning. [sic.] I'd hate to wait all the way to September." In a letter postmarked November 26, 1973, Karolyn expressed her desire to be with the defendant on a permanent basis and stated, "Lets hurry our plans." In a series of undated letters Karolyn wrote about the progress being made in building the new Atkinson home and noted that the later the carpenters started, the longer "you are holding off on our plans." She also wrote "There's only 8 more days left, I can hardly wait. Then we have a wait of 49 days until we can be secretely [sic] married in Mich. * * *." And "only 5 days to go and then only 49 from then but 57 from today."
The State also introduced letters written by defendant to Karolyn. In one letter, dated October 5, 1973, defendant expressed his love for Karolyn. On November 25, 1973, defendant wrote of his great love for Karolyn. In an undated letter, defendant wrote that he was upset when he woke up and did not find Karolyn at his side, that he wanted Karolyn for himself, that no one else was to share her love and, "life is so great without your husband that I think that I will retiree [sic] him permanently."
The State called Jon Heflin, the defendant's older brother, who testified that during the first week of December 1973, defendant told him that Mrs. Atkinson's husband had died while working on high power lines.
The Circuit Clerk of Lake County testified that she had examined the divorce records from September 1973 to date and found no record of any divorce filed by Karolyn Atkinson.
The State also called an insurance sales agent who testified that he had sold a $30,000 decreasing term policy insuring Clifford's life in connection with the mortgage on the new house the Atkinsons were building. Karolyn Atkinson was named the beneficiary of the policy which was dated November 1, 1973.
The defense introduced correspondence between the parties. In an undated letter defendant wrote about his financial troubles, in taking care of himself and paying child support for his son. He stated, "So I don't mean to sound greedy when I speak of how you would get the house and child support. I am just worried about taking on the responsibility of four girls." In an undated letter (Defendant's Exhibit No. 22) defendant expressed fear that Karolyn was still in love with her husband and that if a showdown came, he would lose her and said that, therefore he was leaving the country. In a letter dated October 30, 1973, defendant wrote that his mother had gotten out of the hospital, and said, "She doesn't look good at all. Her moral [sic] is real good though. She knows that she is dying, but she won't let on that she knows."
In an undated letter written by Karolyn to defendant, Karolyn stated, "I hope this divorce comes through fast." In a letter postmarked December 26, 1973, Karolyn wrote defendant, looking forward to "Our Christmas" and New Year's in January, that she liked defendant's mother and could hardly wait to see her again and that she wanted to be with defendant when he told her about "our date" but if not, she wanted to know exactly what defendant's mother said. In Defendant's Exhibit No. 40 Karolyn referred to seeing defendant on the 3rd.
The defense called Officer Philip Stevenson of the Waukegan police department, who had interrogated Mrs. Atkinson immediately following the shooting. He testified that at 2:27 a.m. on the morning of January 4 she told him the story about a burglar, but that at some time following 4:50 a.m. on the morning of January 4 she admitted she had shot her husband. At 6:20 a.m. on that day, she stated that defendant was also involved, that she had seen defendant numerous times, and that he had been over to her house dozens of times. She gave the officer the following account of the events surrounding the shooting: she had picked up defendant at the airport on January 3, 1974, in the morning and had taken him to her house. At 4:15 she went to pick up her husband, leaving defendant in the house; they arrived back home at approximately 9 o'clock after driving out to where their new home was being built. Her husband went out to feed the dog and upon reentering the house heard a loud noise in the basement and went down there without a weapon. She heard noises which she thought was a struggle, went into the bedroom, got her husband's rifle, and ran down the basement stairs where she saw her husband fighting with another person. Her husband yelled at her to shoot the other person. She fired a shot which hit her husband who yelled that she had shot him. Then she noticed that the man her husband was fighting with was defendant, who had begun calling her name. She thought that since he was calling her name, her husband would know who he was, so she shot her husband again and he fell motionless to the floor. For a moment she thought her husband might still live and would know who defendant ...