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People v. Malaszenko

OPINION FILED AUGUST 30, 1979.

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

v.

JOHN MALASZENKO, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. EDWARD M. FIALA, JR., Judge, presiding.

MR. PRESIDING JUSTICE JIGANTI DELIVERED THE OPINION OF THE COURT:

After a trial in the circuit court of Cook County, a jury convicted the defendant, John Malaszenko, and his co-defendant, Diane Kosanovich, of armed robbery and theft. (Ill. Rev. Stat. 1977, ch. 38, pars. 18-2 and 16-1.) The trial court sentenced Malaszenko to concurrent terms of 25 to 50 years imprisonment for armed robbery and 5 to 10 years for theft. In this appeal, Malaszenko contends that the trial court committed reversible error in (1) failing to suppress evidence found at his home and in his car; (2) failing to instruct the jury on the offense of plain robbery; (3) refusing to sever his case from Kosanovich's; (4) sentencing him for the theft conviction; (5) considering the theft conviction as a factor in sentencing him for armed robbery; and (6) sentencing him to an excessive term of imprisonment for armed robbery. Kosanovich appealed her conviction separately. People v. Kosanovich (1979), 69 Ill. App.3d 748, 387 N.E.2d 1061.

On August 2, 1976, a man and a woman robbed Howard Kodner's art and antique store in Glencoe, Illinois. The man, identified by Kodner as Malaszenko, and the woman, identified by Kodner as Kosanovich, had posed as customers in the store for about 30 minutes, occasionally asking Kodner questions about his merchandise. When the only other patron in the store left, they accosted him. The man pointed a flintlock pistol at Kodner, saying "you're dead." The woman pushed a long, silvery, knife-like object at Kodner's neck, warning him not to sound any alarms. The pair forced Kodner to lie face down, the woman holding the object at his neck, and bound him with rope and tape. They began taking items out of the back door of the store. At one point the male robber returned and again threatened Kodner with death. After they left, Kodner loosened his bonds and called the police.

On the following day, a woman sold several items, later identified as articles stolen in the Glencoe robbery, to a Chicago antique store. The woman signed the receipt of sale for them as "Diane Kosanovich" and listed a Chicago address. The clerk of the Chicago store testified that he noticed that the woman had a deformed thumb. Kosanovich has a deformed thumb.

On August 5, 1976, the police went to the address listed on the sales receipt. Kosanovich's mother, who resided there, identified police sketches of the robbery suspects as her daughter, Diane, and Diane's friend, Malaszenko, and told the police that they might find the pair at Malaszenko's home in Northlake, Illinois.

Three or four a.m. the next morning, several police officers from various area jurisdictions, arrived without warrants at the Malaszenko home. Some were in uniform and at least one officer had his gun drawn. It was raining. Malaszenko's 65-year-old mother, a native of Austria living in the United States for the past 27 years, answered their knock. She told the officers that neither Malaszenko nor Kosanovich was there. The police, although admitting that they believed her, asked if they might check the house to verify her denial. She requested that they wait a few minutes, left to lock up her dog, and then admitted the police into the house. The police checked several rooms of the house and the garage. From the wall of Malaszenko's bedroom they confiscated a flintlock pistol. From the garage they seized several articles stolen from the Glencoe store. Malaszenko's mother gave them a recent photo of him and told them that "John was a good boy" led astray by Kosanovich.

Sometime after this, Malaszenko and Kosanovich were arrested. Malaszenko's car, parked in front of the location of the arrest, was towed to the Glencoe police station. Four days later, the police, without a warrant, inventoried its contents. In its back seat they found a red identification tag which had been attached to one of the stolen articles found in Malaszenko's garage.

Malaszenko made a motion to suppress all items taken from his home. His mother testified at a hearing on the motion, through an interpreter. She said that the police "hollered" for her to "open up" and that she was frightened because her understanding of English is limited and she was alone. She denied consenting to the search of her home.

The trial court ruled that Malaszenko's mother voluntarily consented to the search of her home for her son and Kosanovich. The court determined that the flintlock pistol found hanging in Malaszenko's room was in "plain view" and could be properly admitted into evidence. However, the articles in the garage, it was ruled, were found while the police were acting "beyond the scope of the consent" and therefore were suppressed.

Before the trial, but after four jurors had already been chosen, Malaszenko made a second "supplemental" motion to suppress the tag found in the inventory of the car. The trial court denied the motion as untimely, noting that Malaszenko had notice of the tag through the State's discovery responses received before the initial motion to suppress was made.

Malaszenko argues that the court erred in failing to suppress both the flintlock pistol seized in the search of his home and the red identification tag taken in the inventory of his car. First, he contends that the search of his house was made without his mother's consent and that even if the police obtained consent for the search, they did not have the right to confiscate the flintlock pistol. We disagree.

• 1 We cannot accept Malaszenko's argument that the search of the house was made without his mother's consent. Whether his mother voluntarily gave her consent to the search is a question of fact to be determined from the totality of the circumstances. (Schneckloth v. Bustamonte (1972), 412 U.S. 218, 36 L.Ed.2d 854, 93 S.Ct. 2041; People v. DeMorrow (1974), 59 Ill.2d 352, 320 N.E.2d 1.) When that determination rests on an evaluation of conflicting testimonial evidence, a review court must accept the finding made by the trial court unless it is clearly unreasonable. People v. Peterson (1959), 17 Ill.2d 513, 162 N.E.2d 380.

• 2 While one might infer from a warrantless night raid by a group of armed officers that intimidation rather than voluntary consent caused the invitation to inspect the Malaszenko home, that inference is not conclusive from those facts. In this case the court had an opportunity to hear Malaszenko's mother and evaluate her language abilities. The judge made a specific finding that she had the capacity to appreciate and understand English. Further, the court explicitly interpreted her actions in locking up her dog so that the police could inspect the house and giving the police a picture of her son as evidence that the search was voluntary. These findings and conclusions are not unreasonable. Because Malaszenko's argument is predicated on an interpretation of the evidence alone, we must defer to the trial court and affirm the decision that the search of the home was made with the consent of Malaszenko's mother.

• 3 Furthermore, we find that the trial court was correct in determining that the police confiscated the flintlock pistol within the limited scope of their search of the home for the suspects. At the time of the search, the police knew that a flintlock pistol was used by the man who robbed the Glencoe store. The police observed a similar weapon hanging, in open view, on the wall of Malaszenko's bedroom and the police were in that bedroom, as shown above, with the permission of Malaszenko's mother. Any article in plain view, seen by the police while within the scope of a search, can be seized if that article is evidence of criminal activity. (People v. Sprovieri (1969), 43 Ill.2d 223, 252 N.E.2d 531.) Certainly, commission of an armed robbery with a flintlock pistol is unique, at least in this century, ...


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