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People v. Milone

OPINION FILED NOVEMBER 12, 1976.

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

v.

RICHARD MILONE, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Du Page County; the Hon. GEORGE W. UNVERZAGT, Judge, presiding.

MR. JUSTICE HALLETT DELIVERED THE OPINION OF THE COURT:

On a bench trial, the defendant was convicted of murdering Sally Kandel and sentenced to 90 to 175 years in the penitentiary. On appeal, he contends, in substance: (1) that photographs of his mouth and impressions of his upper and lower teeth, taken pursuant to a search warrant, were seized in violation of his constitutional rights and that the trial court therefore erred in denying his motion to suppress such evidence; (2) that the so-called "Bite-Mark" identification evidence was not proven to be sufficiently reliable to permit its admission into evidence and that the admission of such evidence over his objection therefore constituted reversible error and deprived him of a fair trial; and (3) that the prosecution's circumstantial case was consistent with his innocence and that the evidence was therefore insufficient to establish his guilt beyond a reasonable doubt. We do not agree with any of these contentions and therefore affirm the judgment.

At 5:15 p.m. on the evening of September 12, 1972, 14-year-old Sally Kandel ate dinner at her home in Carol Stream, and at 6:10 p.m. left for a bicycle ride, promising to be home by 7 p.m. She never returned. Her absence was reported to the police at 10 p.m. that evening and at 2 a.m. the next morning Sally's stepfather identified her bicycle which was found along the side of Lies Road, a country road in a rural area about 2 miles from the Kandel residence. At 5:50 a.m. the police discovered Sally Kandel's body lying in the mud between two rows of corn approximately 200 feet from where her bicycle was found earlier. Her blue jeans and body shirt were torn and there were numerous lacerations in the back of her head.

The body was in a state of extreme rigor mortis and was placed in a morgue bag and taken by ambulance to the funeral home. An autopsy was performed by Dr. R.N. Horowitz of Central Du Page Hospital who listed the cause of death as severe head injuries, comminuted skull fracture, and laceration of the brain. Dr. Horowitz noted multiple lacerations of the scalp concentrated in the back part of the head on the right side. There was a traumatic amputation of the victim's left thumb, and the upper portion of the ring and middle finger on the left hand were fractured. The injuries to the hands occurred at the time of death and appeared to be the result of the victim's attempt to protect herself from blows being delivered to her head.

Dr. Horowitz further noticed two lacerations, one in the eyelid of each eye, which had been carved after death with a sharp instrument, and which "were symmetrically placed in an area where they would have been deliberate, which meant that they were planned as opposed to an accidental cut." In addition, he observed a human bite mark on the inner aspect of the victim's right thigh which had been inflicted sometime after her heart had stopped beating. He examined the contents of the victim's stomach and concluded that death occurred within one to two hours of her dinner at 5:15 p.m. the evening of the murder.

Douglas Miller of the Du Page County Sheriff's Office testified that after discovering the body he found a bar type instrument, later identified as a Jewel shopping cart handle, in tall grass approximately 16 feet away from the body. A chemist examined this handle and found traces of human blood, and hair which was consistent in color and character with the hair of the victim. Examination of the lacerations and bruises on the body led to the determination that this shopping cart handle was in fact the murder weapon. After pictures of the handle were circulated in newspapers and on television, the owner of the D-C Warehouse in Addison, Illinois, notified the authorities that a handle similar to the one in question was missing from one of the shopping carts used to transport inventory in his warehouse. The police focused their investigation on employees of the D-C Warehouse when the murder weapon was positively matched to one of the carts there.

On September 22, Detective Ley of the Du Page County Sheriff's Office conducted interviews with a number of employees of the D-C Warehouse and at that time spoke to the defendant. The defendant stated that he remembered seeing the handle under a counter in the warehouse, but he had no idea when or how it had been removed from the premises. He also stated that he left work around 5:30 or 6 p.m. on the evening of the murder, but five days later he told Detective Ley that he had worked until 7:30 or 8 p.m. that evening and he was sure he had not left the warehouse during the afternoon or evening.

Co-workers James Twomey, John Francioni, and Bernard Swartz all gave statements to Detective Ley and later testified at the defendant's trial. When the defendant was confronted with these statements, he admitted to Ley that he had removed the shopping cart handle from the warehouse and had carried it around in his car for protection. He maintained, however, that he threw the handle away at a park in Lombard two days prior to the killing. He also admitted leaving the warehouse on the evening of September 12 for about an hour and a half, and stated that he ate dinner at a restaurant in Addison, and then drove around a shopping center for awhile.

On January 24, 1973, a search warrant was issued to obtain photographs and dental impressions of the defendant's teeth and mouth. On January 25, he was arrested and taken to a dental office in Wheaton where the photographs were taken and the impressions made. After a comparison between the dentition of the defendant and a silicone impression and photographs of the bite mark found on the victim's thigh, the defendant was formally charged with the murder of Sally Kandel.

At the trial, Bernard Swartz testified that he was the sales manager of the D-C Warehouse, and that on August 30 or August 31, 1972, he observed the defendant placing the shopping cart handle in the trunk of his car. The defendant told Swartz that he needed the handle "for security or protection." John Francioni and James Twomey, co-workers of the defendant, testified that they observed the handle in the front seat of the defendant's car on numerous occasions prior to September 10, 1972, two days before the murder. They both saw the defendant carry the handle into a park on September 10 to use as a weapon, but they could neither confirm nor deny the defendant's contention that he had thrown the handle away that evening.

Francioni stated that while working at the warehouse shortly before 6 p.m. on the evening of the murder he gave the defendant $5 to pick up a sandwich for him. He did not see the defendant again until he punched out at 7:21 p.m. that evening. Twomey stated that when he returned to the warehouse from dinner at 6 p.m. that evening, the defendant's car was not in the lot. He observed the defendant drive into the lot around 7:20 p.m. and noticed that the defendant was wearing a different shirt than he had been wearing earlier in the day. He observed the defendant's clean shirt and combed hair and accused him of going home and getting "cleaned up" when he should have been helping them work. When Francioni inquired about his sandwich, the defendant said he was unable to stop for food because he was busy eluding the Addison police who had spotted and chased him because they knew he was driving with a revoked driver's license. At the trial, the defendant stipulated that no such chase had in fact occurred.

Nine-year-old Linda Roseboom testified that she lived in a farmhouse next to the cornfield where the body was found, and that between 6 p.m. and 7 p.m. on the evening of the murder she observed a light colored car with front end damage on the driver's side pull into her driveway and turn around. She also noticed that the driver was a white male with very long sideburns. The record indicates that on the evening of the murder the defendant wore his sideburns quite long and drive a beige 1964 Dodge which had a damaged front end on the driver's side. An examination of this car failed to turn up any evidence of the crime but the front seat and carpet had been scrubbed with soap and water shortly before the sheriff's police examined it.

The State presented extensive dental testimony to establish a correlation between the bite mark on the victim's thigh and the dentition of the defendant, while the defendant offered testimony to refute this contention. The defendant did not testify in his own behalf. The court found the defendant guilty of murder and sentenced him to 90-175 years.

The defendant's first main contention is that the pictures of his mouth and the impressions made of his upper and lower teeth, pursuant to a search warrant, were seized in violation of his constitutional rights and that the trial court therefore erred in denying his motion to suppress such evidence.

His first argument is that there was an absence of "probable cause" for the search warrant to issue and says that the affidavits are "so devoid of facts and replete with conclusions that it was impossible for the issuing magistrate to form an independent judgment as to the existence of probable cause."

• 1 A review of the record shows that the judge was allowed, on the basis of the four affidavits, to determine for himself the persuasiveness of facts relied upon by the affiants and was not forced to rely merely on their conclusions. The defendant specifically charges that the facts contained in the affidavit of Detective Ley are supported only by hearsay and do not present a sufficient ground for reliability. It is well established that hearsay may be the basis for the issuance of a search warrant if a substantial foundation for crediting the hearsay is shown. (People v. Francisco (1970), 44 Ill.2d 373, 255 N.E.2d 413.) In the case before us Judge Fitzgerald was aware of the underlying circumstances which formed the basis of the affiants' belief. Detective Ley's affidavit began:

"I, EDWARD LEY, am a detective for the Sheriff of Du Page County, Illinois, and I have participated in the investigation of the homicide of Sally Kandel."

In People v. McGrain (1967), 38 Ill.2d 189, 230 N.E.2d 699, our supreme court held that "the observations of fellow police officers of the Government engaged in a common investigation, are plainly a reliable basis for a warrant applied for by one of the members."

It is apparent from the language of Detective Ley's affidavit that the facts relating to the location of the body, the traveling time by car from the D-C Warehouse to that location, the traveling distance by bicycle from the Kandel residence to that location, the cause of death, and the description of the murder weapon were all facts personally known to Detective Ley through his involvement in the investigation of the murder.

The affidavit also places the time of death shortly after 6 p.m. and attributes the discovery of this fact to Dr. Horowitz who he states is a pathologist. This credential contained in the affidavit certainly gives sufficient ...


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