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People v. Kennedy





APPEAL from the Circuit Court of White County; the Hon. HENRY LEWIS, Judge, presiding.


Rehearing denied December 26, 1978.

A jury in the circuit court of White County found the defendant, Clarence A. Kennedy, guilty of murder. The defendant was sentenced to not less than 30 nor more than 50 years of imprisonment. The following issues are asserted by the defendant on appeal: the trial court erred in denying the defendant's motion to suppress; the trial court erred in allowing certain statements to be introduced into evidence where the statements were made without proper Miranda warnings; and the State failed to sustain its burden of establishing the guilt of the defendant beyond a reasonable doubt.

On June 3, 1976, at approximately 10:45 a.m. the body of Joseph E. Modglin was found dead in the cab of his semitrailer truck which was parked off the eastbound lanes of I-64 at milepost 127.3 in White County. Modglin had been shot nine times in the back. An autopsy was performed at 3 p.m. the same day by Dr. Albert J. Venables who placed the time of death between 48 and 72 hours of the autopsy. The specific time of death could not be narrowed any further than the 24-hour range due to the decomposition of the body. According to the autopsy, death occurred between 3 p.m. May 31 and 3 p.m. June 1.

Sometime around 1 a.m. June 1 the defendant was stopped by Deputy Calvin Boyer on Route 1 near Grayville, only a few miles from the murder scene. Boyer testified that he stopped the defendant because Edwards County had a policy of stopping hitchhikers in order to render assistance or check them out. Deputy Doyle Judge, who was backing up Boyer in case of trouble, approached the defendant and asked him what he was carrying in the brown bag that was being held by the defendant between his legs. The defendant told him that the bag contained a gun. Judge then ordered the defendant to stand at the rear of Boyer's squad car where the defendant was patted down. No other weapons were found on him. Judge then opened the bag and seized the gun inside it. The weapon was a nine-shot .22 caliber High Standard Durango Pistol. The gun was checked through a computer to see if it was stolen. When the computer eventually reported that the gun was not stolen, the defendant was escorted to the Indiana State line and released. However, the deputies kept the gun because the defendant could not produce any proof of ownership or a firearm owner's identification card.

Through police communications Boyer learned of Modglin's death and that he had numerous puncture-type wounds. Boyer knew that a .22 caliber pistol made similar wounds. On a hunch, Boyer turned the gun over to the State Police who ran ballistics tests on it with the bullets found in Modglin's body. Six of the seven bullets removed were positively matched with the gun. Other evidence obtained at the murder scene also linked the defendant to the crime. A jacket was found in the cab which was the same size as a jacket ordered by the defendant while awaiting trial. Also, two human hairs found in the jacket were the same general color as the defendant's.

The first issue raised by the defendant is that the trial court erred in denying his motion to suppress evidence seized after he was questioned and searched by county deputies. With respect to the motion to suppress, the pertinent facts are as follows. At approximately 1 a.m. on June 1, 1976, deputies Boyer and Judge were driving south on Route 1 in separate patrol cars with Judge in the lead. They were on their way to Grayville to pick up a suspect involved in a matter unrelated to this cause. Boyer testified that while on the outskirts of Grayville he drove past the defendant who was walking north on Route 1. The defendant was walking close to the highway and was on the wrong side for a pedestrian. Because it was the custom in Edwards County for law enforcement officers to stop hitchhikers in order to render assistance or check them out, Boyer turned his vehicle around and approached the defendant. Boyer's motivation for stopping the defendant was not due to any suspicion that criminal activity was afoot. Boyer then radioed his intentions to Judge who likewise turned around and followed Boyer as a backup in case one was needed. The defendant made no attempt to run or hide as Boyer approached, but kept walking instead. He finally stopped when Boyer's vehicle pulled abreast of him. The defendant proceeded to place a bag that he was carrying under his left arm between his knees before Boyer addressed any questions to him.

Initially, Boyer asked the defendant if he was lost. The defendant indicated that he was not, and added that he was on his way to Evansville, Indiana, where he was from. Because the defendant was walking almost in the opposite direction of Evansville, Boyer asked him if he was traveling by way of Princeton, Indiana. The defendant responded affirmatively. Boyer thought it was unusual for the defendant to reach Evansville from Grayville by traveling north on Route 1. The defendant also told Boyer that he had just come from St. Louis and was dropped off a couple of blocks away. Boyer also thought it was unusual for the defendant to hitchhike from St. Louis to Grayville as well as arriving at such a late hour. Boyer then asked the defendant for some identification. The defendant produced a social security card and a military document and handed them to Boyer. Boyer radioed the defendant's name and social security number to the National Crime Information Center (NCIC) computer to see if the defendant was wanted.

By this time, Judge exited his vehicle and approached the defendant. Judge testified that it appeared that the defendant was trying to conceal something by the way he held the bag between his legs. Although Judge did not consider this behavior to be suspicious, he asked the defendant what was in the bag. The defendant responded that it was a gun. Immediately, the defendant was asked by Judge to leave the bag right where he was standing and walk to the rear of Boyer's patrol car. From this location, the bag was no more than eight or 10 feet from the defendant. Judge patted down the defendant and discovered no additional weapons. He then walked over to the bag and removed the gun. It was handed over to Boyer who ran a check through NCIC to see if it was stolen. The defendant could not produce a bill of sale or other proof of ownership. Judge never asked the defendant's permission to look in the bag, nor did he have a search warrant to do so. Also, the gun which was seized could not be detected without opening the bag.

The response from NCIC pertaining to the defendant and the gun was slow in arriving, and finally Boyer was informed that the computer was temporarily shut down to receive new crime data. Boyer then told the defendant to get in the rear seat of his patrol car. The defendant was informed that he would be free to go as soon as he was cleared by NCIC. The defendant was taken to the Grayville police station to await the results which came back from the computer nearly two hours later. While at the police station, nine spent shells were removed from the seized gun. When the computer check arrived, the defendant and the gun were clear. Boyer then told the defendant that he was free to go and offered to take him to the Indiana State line. However, due to the defendant's failure to produce a firearm owner's identification card or any proof of ownership, Boyer issued the defendant a receipt and kept the gun pending such proof.

From the initial stop of the defendant until he stated that he had a gun, Boyer never told the defendant he was not free to go. Nor did Boyer ever get out of his police car when he talked with the defendant. Throughout the entire encounter with the defendant, both at Route 1 and at the police station in Grayville, Boyer never told the defendant that he was under arrest and at no time did Boyer draw his weapon on the defendant. Judge never arrested the defendant or drew a weapon on him either.

The pistol and the spent shells were subsequently sent to Springfield for ballistics testing. They were positively matched with six of the seven bullets removed from the body of Modglin. The seventh bullet was too badly damaged for testing purposes. The determination that the pistol was in fact the murder weapon served to tie the defendant to other physical evidence found at the scene of the murder. A jacket discovered in the cab of the tractor was the same size as a jacket the defendant ordered while in jail awaiting trial, and strands of human hair found on the jacket were of the same general color as the defendant's.

The defendant filed a motion to suppress the pistol, the nine shell casings, the seven bullets, the jacket and the hair on the basis that it was obtained as a result of an illegal stop of the defendant by Boyer. The trial court denied the motion holding that the stop was a reasonable exercise of police power and the search was lawful under Terry v. Ohio (1968), 392 U.S. 1, 20 L.Ed.2d 889, 88 S.Ct. 1868.

The defendant claims that he was illegally stopped by Boyer because, prior to confronting the defendant on Route 1, Boyer lacked probable cause to arrest him or reasonable suspicion to detain him and conduct a limited search for weapons as prescribed in Terry and sections 107-14, 108-1.01 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1975, ch. 38, pars. 107-14, 108-1.01). Consequently, the defendant argues that all of the evidence gained as a result of the illegal stop should be excluded as "fruit of the poisonous tree." (Wong Sun v. United States (1963), 371 U.S. 471, 9 L.Ed.2d 441, 83 S.Ct. 407.) In the alternative, assuming the defendant was legally stopped he ...

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