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People v. Dzambazovic

OPINION FILED MAY 31, 1978.

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

v.

DUSAN DZAMBAZOVIC, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. SAUL EPTON, Judge, presiding.

MR. JUSTICE BROWN DELIVERED THE OPINION OF THE COURT:

The defendant, Dusan Dzambazovic, was indicted on two counts of murder. After a jury trial in the circuit court of Cook County, he was found guilty of the offense of murder and sentenced to a term of 14 years to 14 years and one day. The defendant appeals from his conviction, raising the following issues for our review: (1) whether the defendant made a knowing and intelligent waiver of his right to the presence of an attorney before making oral confessions and whether the trial court erred in denying the defendant's motion to suppress statements and in admitting his out-of-court confessions into evidence; (2) whether the trial court erred in denying the defendant's motion for a continuance; (3) whether the trial court erred in refusing to permit defense counsel to conduct the voir dire examination of the jury; (4) whether the trial court erred in admitting into evidence testimony that the defendant had made threats against a third party; (5) whether the trial court erred in permitting the prosecution to cross-examine the defendant as to his use of narcotics and to introduce testimony in rebuttal that the defendant had admitted that he had been a narcotics addict; and (6) whether the trial court erred in refusing certain jury instructions tendered by the defendant.

The undisputed facts are that the victim, Rosemary Weiss, attended Southern Illinois University in Carbondale, Illinois, in 1971, at which time she met the defendant. By 1972 they were living together until she graduated in 1973. He testified they intended to marry. In the summer of 1974, the defendant came to Chicago and lived with Rosemary in her apartment. In the fall of 1974, he went back to school in Carbondale, and came to Chicago on weekends and stayed at the apartment with Rosemary. During the weekend of October 11, 1974, the defendant learned that Rosemary had been dating another person. Rosemary called him in Carbondale on Monday, October 14, 1974, and told him she wanted to talk things over in person. He returned to Chicago that same day. In the evening of Friday, October 18, 1974, she told him she had decided not to see the man she had been dating anymore. She called the man that night. Defendant also called the man.

The defendant met Rosemary at her place of employment in Chicago about noon on October 19, 1974. He drove her car, and there was a discussion about her new boyfriend, Tom Sanhamel. As they drove into Evanston, an argument ensued. A gun was produced and Rosemary Weiss was shot and killed. She fell on the pavement. Her car was driven off by the defendant.

We shall proceed to consider the issues in the order previously stated.

First. Whether the defendant made a knowing and intelligent waiver of his right to the presence of an attorney before making oral confessions and whether the trial court erred in denying the defendant's motion to suppress statements and in admitting his out-of-court confessions into evidence.

Prior to trial, the defendant filed a motion to suppress statements which alleged that he was denied the opportunity to consult with an attorney.

At the hearing on the motion to suppress, the defendant testified that on October 19, 1974, he met a Chicago police officer at the intersection of Devon and California in Chicago, and that he was not informed of his constitutional rights at that point. He stated that he was then taken to the intersection of Ridge and Devon in Chicago, where he met Lieutenant Schram of the Evanston Police Department, and had a conversation with Schram in a Chicago Police Department squad car. He stated that he and Schram were alone, and Schram informed him of his constitutional rights: that he had the right to remain silent, that everything he said might be used against him, that he had a right to a lawyer. The defendant testified that he told Schram that he would like to get in touch with his parents so he could get in touch with a lawyer, to which Schram responded that he would have that opportunity when he got to the station. He testified that Schram continued to have a conversation with him for about a half an hour, and then he got into an Evanston police vehicle. He testified that another policeman drove, Schram continued to question him, and he asked a couple of times to call his parents to obtain a lawyer. He stated that after riding around the northern part of Evanston, he arrived at the Evanston police station and was questioned by Schram, who was alone; that he requested permission to call his parents to get a lawyer three or four times, and was allowed to call, but his parents were not home, and the questioning then continued. A short time later, he reached his parents and they provided him with a lawyer, Rakowski, who told him not to say or sign anything and not to make any statements. He stated that Schram told him that his lawyer called and told Schram not to ask any more questions and that he should not sign any papers.

On cross-examination, the defendant testified that he approached the Chicago police officer and did not tell him that he had just shot Rosemary Weiss. He testified that before he talked to Schram in the Chicago police vehicle, Schram advised him that he didn't have to tell him anything, that he had the right to a lawyer, and that if he was too poor and couldn't afford one, one would be appointed for him. He stated that Schram did not force him to say anything, but he wanted to talk to a lawyer first; that he sat in the car for about 10 minutes and told Schram he wanted a lawyer, and Schram kept asking him questions. He stated that he and the officers drove around in the Evanston police vehicle for about a half hour and he showed them where a car was parked that belonged to his girl friend, Rosemary Weiss.

Lieutenant Schram testified that he entered the rear of the Chicago Police Department squad car, identified himself to the defendant, and told him that he liked to talk about the murder of Rosemary Weiss, to which the defendant replied "okay." Schram then advised him that he was required to inform him of his constitutional rights before he questioned him, and the defendant said that he understood. Schram testified that he informed defendant that he had the right to remain silent, and that if he chose not to remain silent, anything he said or wrote could and would be used against him as evidence in court; that he had a right to consult with a lawyer before any questioning and he had the right to have the lawyer present with him during any questioning; that if he did not have the financial ability to retain a lawyer, one would be appointed to represent him before and during any questioning. According to Schram, after each right was stated, he asked the defendant whether he understood that right, and the defendant responded affirmatively each time. Schram testified that he then asked the defendant whether he was still willing to make a statement and answer questions, knowing his constitutional rights without talking to a lawyer and without having a lawyer present, and the defendant replied affirmatively. He stated that the defendant did not request to speak with his parents or with an attorney at that time; that two or three minutes later, he placed defendant in an Evanston squad car, driven by another Evanston police officer. They drove around Chicago and Evanston for about 30 to 45 minutes, and the defendant pointed out Rosemary Weiss' car. They did not find the pistol the defendant told them to look for. Upon their arrival at the Evanston Police Department, Schram asked the defendant to execute a written statement regarding his previous conversation in the car. The defendant replied "[M]aybe I had better talk to a lawyer first." Schram stated that he then advised him that this is one of his constitutional rights and asked him if he knew a lawyer to call. The defendant said "No," but that he would like to call his mother. Schram testified that at that time, the defendant was permitted to call his mother, and the questioning stopped.

On cross-examination, Schram testified that after he advised the defendant of his constitutional rights and the defendant gave answers, he went right on asking him questions. He stated that both he and Detective Page made police reports.

After arguments of counsel, the defendant's motion to suppress was denied.

At trial, Officer Erwin of the Chicago Police Department testified that on October 19, 1974, the defendant walked up to his marked squad car and told him that he had just shot his girl friend, Rosemary Weiss. He stated that he placed the defendant under arrest, advised him of his rights, and placed him in the rear of the squad car.

Lieutenant Schram's trial testimony covered much of the same ground as previously set forth in the hearing on the motion to suppress. After Schram related that the defendant stated that he was willing to make a statement, Schram stated that the defendant then told him that he had shot his girl friend after an argument about a person named Tom, who had been dating Rosemary. Schram testified that the defendant had told him, while riding to the Evanston Police Department with Detective Page driving, that an argument ensued and Rosemary told him that she didn't want to talk to him anymore and she tried to get out of the car while the car was moving; that he had stopped the car and grabbed Rosemary, but she was able to pull away from his grasp and stepped outside of the car; and that while she was just immediately outside of the car on the passenger side, he pulled a pistol from his waistband and fired one shot at her. Schram said the defendant told him that Rosemary fell to the ground and he drove off, and that he threw the gun out of the window when he was approximately 10 blocks from the scene. He then drove to California and Pratt Avenues and boarded a bus, getting off at Devon, where he flagged down a Chicago police squad car. Schram stated that the defendant stated to him that he told the Chicago police officer that he had just shot someone and he wanted to surrender, and that the Chicago police officer did not ask any questions before he made this statement. Schram testified that the defendant, while at the Evanston police station, gave him the same story that he had given while in the vehicle proceeding to the station. He further testified that the defendant was handcuffed in the Chicago and Evanston squad cars and at the Evanston police station.

The testimony of Detective Page corroborated Lieutenant Schram regarding the statements of the defendant made on the way to the Evanston Police Department. Detective Page also testified that the defendant was handcuffed during the ride in the Evanston squad car.

• 1 The warnings given the defendant complied with the constitutional requirements set out in Miranda v. Arizona (1966), 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602. (See People v. Gilbert (1st Dist. 1978), 58 Ill. App.3d 387, 374 N.E.2d 739.) The question whether the defendant voluntarily and knowingly waived the Miranda rights is a question for the trial court's determination, not to be disturbed unless against the manifest weight of the evidence. (People v. Wipfler (1977), 68 Ill.2d 158, 171, 368 N.E.2d 870.) The question was a factual one, the answer to which depended upon the acceptance or rejection of the defendant's testimony or that of the police officer given at the hearing on the motion to suppress. (People v. Moon (1st Dist. 1976), 38 Ill. App.3d 854, 861, 350 N.E.2d 179; People v. Noonan (1st Dist. 1972), 5 Ill. App.3d 1109, 1111, 284 N.E.2d 446.) "It is for the trial court to resolve conflicts in the evidence presented. The trial judge, having observed the demeanor of witnesses, having heard their testimony and having evaluated other evidence, is the one best equipped to determine the voluntariness of a confession." (People v. Medina (1978), 71 Ill.2d 254, 258, 375 N.E.2d 78, 79.) In the instant case, the trial court's determination was not against the manifest weight of the evidence. There was no infringement upon defendant's constitutional rights and the trial court did not err in denying defendant's motion to suppress and in admitting his out-of-court confessions into evidence.

Second. Whether the trial court erred in denying the defendant's motion for a continuance.

The defendant filed a discovery motion on May 5, 1975. Before trial, the State tendered to the defense police reports and the transcripts of the grand jury and preliminary hearing proceedings.

On Monday, June 14, 1976, the date set for trial, the State tendered to the defense its formal answer to discovery. Defense counsel moved for a continuance upon two grounds: (1) that his expert toxicologist would be on vacation until July 4, 1976; and (2) he needed time to examine laboratory reports tendered to him that morning and new witnesses listed in the State's answer to discovery.

Defense counsel stated that he expected his toxicologist to testify that the blood of the deceased had contained morphine, that morphine is a derivative of heroin, and that heroin would affect the rational conduct of the deceased. He stated that this would be important for his defense, to show the shooting came about in the struggle for a gun and was accidental. The State responded that the doctor would not be allowed to testify that it could have been heroin and that a person under the influence of heroin might act irrational.

Defense counsel had initially requested a continuance until "right after" July 4. After considerable discussion, defense counsel requested a continuance until Thursday, June 17, 1976, in order to find another toxicologist and to examine and check the accuracy of the laboratory reports. His request was denied.

After reconvening that afternoon, the State argued that all witnesses listed in its answer to discovery were listed in the police reports tendered to defense counsel in May 1975. The State indicated that two of the three laboratory reports were received by it that week. Defense counsel stated that the laboratory reports were respectively dated February 3, 1976, June 11, 1976, and June 30, 1976 (sic), and one report referred to "microscopic examination of clothing, relates to the pellet and in the opinion of the examiner as to what kind of gun it was." The trial court began the voir dire examination of the jury and continued the cause until 10:30 a.m. on Tuesday, June 15, 1976.

The record indicates that the voir dire examination of the jury was completed on Tuesday, June 15, 1976, and the cause was adjourned until 9 a.m. on Wednesday, June 16, 1976. However, there is no transcript of proceedings of Wednesday, June 16, 1976, contained in the record. On Thursday, June 17, 1976, defense counsel stated that he continued the effort to prepare for trial "during yesterday," but that he could not meet the problems that were engendered by the State's answer to discovery. The defendant's motion for a mistrial was denied, and the State called its first witness. In People v. Lott (1977), 66 Ill.2d 290, 296-97, 362 N.E.2d 312, our supreme court stated:

"By statute in Illinois, the granting or refusing to grant a motion for continuance lies in the sound discretion of the court (Ill. Rev. Stat. 1973, ch. 38, par. 114-4(e)), and, even absent specific grounds stated in sundry subsections, the court may grant a continuance in the `interests of justice' (Ill. Rev. Stat. 1973, ch. 38, pars. 114-4(d) and (f)). The statute further sets forth one criterion to be entertained in the decision to grant a continuance, the `diligence shown on the part of the movant' (Ill. Rev. Stat. 1973, ch. 38, par. 114-4(e)). Section 114-4(h) provides the framework of statutory interpretation for the decision: the continuance provisions are to be construed `to the end that criminal cases are tried with due diligence consonant with the rights of the defendant and the State to a speedy, fair and impartial trial.'

There is no mechanical test, statutory or other, for determining the point at which the denial of a continuance in order to accelerate the judicial proceedings violates the substantive right of the accused to properly defend. The circumstances of each case must be weighed, particularly ...


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