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People v. Borchelt

OPINION FILED MARCH 11, 1977.

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

v.

VIRGIL WAYNE BORCHELT, JR., DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Franklin County; the Hon. F.P. HANAGAN, Judge, presiding.

MR. JUSTICE GEORGE J. MORAN DELIVERED THE OPINION OF THE COURT:

Defendant Virgil Borchelt was found guilty by a jury of burglary and theft of property exceeding $150 in value in the circuit court of Franklin County. Defendant presents three issues for review: (1) Whether the trial court erred in denying his motion to suppress evidence obtained as a result of the search of his parents' home; (2) whether the trial court committed reversible error by allowing his wife to testify against him; and (3) whether he received a speedy trial as provided in section 103-5 of the Code of Criminal Procedure (Ill. Rev. Stat. 1975, ch. 38, par. 103-5).

On the evening of August 31, 1974, defendant, Lisa Taylor (now Borchelt) and Richard Shively took some guns from the home of Lisa's sister in West Frankfort. The guns were then taken to the defendant's house and later removed to the home of his parents. Defendant and Lisa Taylor were living together at the time, but were not married until October 31, 1974.

On September 12, 1974, after receiving information from Lisa Taylor, West Frankfort Policeman Donald Graskewicz and Illinois State Police Detective Roy Cooley questioned defendant in the Williamson County jail where he was being held for an offense committed in that county. Defendant told the officers that the guns were hidden in his parents' home. According to the testimony of the officers, defendant attempted to telephone his parents to tell them that the police were coming and to give them the guns. When defendant received no answer, he told the officers to go to his parents' home to get the guns and if there was any problem, to call him at the jail. Since no one was at home when Officer Graskewicz and Detective Cooley arrived at the residence of the defendant's parents, they waited until Mrs. Borchelt's arrival. They then entered the home with defendant's mother and discovered the guns where defendant had told them they could be found.

Testifying in his own behalf at trial, defendant denied participating in the burglary and denied ever implicating himself to the police. He explained that he told the police where the guns were in order to secure favorable treatment for his wife, Lisa, who had been charged with the same burglary.

Defendant contends that the trial court erred in denying his motion to suppress physical evidence obtained as a result of the search of his parents' home. For the following reasons we believe that the defendant had no standing to contest the search of his parents' home and that the motion to suppress physical evidence was thus properly denied.

• 1, 2 A fourth amendment violation can be urged only by those whose rights are violated by the search itself, not by those who are aggrieved by the introduction of damaging evidence. (Alderman v. United States, 394 U.S. 165, 22 L.Ed.2d 176, 89 S.Ct. 961 (1969); People v. McNeil, 53 Ill.2d 187, 290 N.E.2d 602 (however, see the eloquent dissenting opinion of Justice Goldenhersh).) There is no standing to contest a search and seizure where a person is not on the premises at the time of the contested search and seizure, alleges no proprietary or possessory interest in the premises and is not charged with an offense which includes as an element thereof the possession of evidence seized at the time of the contested search and seizure. (Brown v. United States, 411 U.S. 223, 36 L.Ed.2d 208, 93 S.Ct. 1565 (1973).) In this case defendant was in jail at the time of the search and seizure in question. He had been living in his own home two blocks away from his parents and had no proprietary or possessory interest in his parents' home. The crime in this case was not one which included as an element possession of the evidence seized at the time of the contested search and seizure. The burglary was complete when, without authority, the defendant entered the victims' residence with the intention of committing a theft. The felony theft was complete when defendant took unauthorized control of the stolen goods. Consequently, we find that defendant's rights were not violated by the search of his parents' home and the seizure of the guns.

• 3 Defendant next argues that the trial court improperly permitted his wife to testify against him since her testimony was incompetent under the rule of inter-spousal privilege. In Illinois, inter-spousal privilege is now limited by statute to "any communication or admission made by either of them to the other or * * * to any conversation between them during coverture * * *." (Ill. Rev. Stat. 1975, ch. 38, par. 155-1.) The conversations between Lisa Taylor (Borchelt) and defendant regarding plans in preparation for the offense were not privileged communications because the two were not married at the time. Furthermore, Lisa's uncontradicted testimony showed that these conversations were made in the presence of a third party, Richard Shively. Hence, even if Lisa and defendant had then been married, their conversations would not have been privileged because they were not confidential in nature. (People v. Palumbo, 5 Ill.2d 409, 414-15, 125 N.E.2d 518; McCormick, Evidence § 80, at 165-66 (2d ed. 1972).) Accordingly, we believe the trial court committed no error when it allowed the testimony of Lisa Taylor Borchelt.

Finally, defendant contends that the trial court erred in denying his motion for discharge under the 120-day speedy trial rule (Ill. Rev. Stat. 1975, ch. 38, par. 103-5(a)). The facts relevant to this contention follow:

Date of burglary August 31, 1974

Defendant charged by information September 16, 1974

Defendant admitted to bail September 17, 1974

Defendant indicted January 7, 1975

Arraignment ...


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