APPEAL from the Circuit Court of Cook County; the Hon. JAMES
M. BAILEY, Judge, presiding.
MR. JUSTICE CAMPBELL DELIVERED THE OPINION OF THE COURT:
This is an appeal of a conviction after a jury trial wherein the defendant, Marrion Logan, was found guilty of the murder of Phyllis Anderson, and the attempt murder and aggravated battery of Leo Anderson. The trial court ruled that the aggravated battery merged with the attempt murder and sentenced the defendant from 200 to 600 years each for murder and attempt murder, the sentences to run concurrently. The defendant argues: (1) the trial court committed reversible error in admitting into evidence material seized in a warrantless search of the defendant's residence and without defendant's consent; (2) that reversible error was committed in refusing to allow testimony of an act similar in time, place and modus operandi, but not involving the defendant; and (3) the jury foreman's experience and knowledge of the circumstances on the night of the murder, which were not revealed during the voir dire examination, tainted the jury and deprived the defendant of a fair trial.
On the night of June 13, 1976, a severe rainstorm caused flooding in the viaducts and expressways of Chicago. Many cars were stalled or forced off the expressways due to the flooding. On this particular day, Leo Anderson, his wife, Phyllis, and their three children, Elizabeth, Janet and Michael, ages 16, 15, and 13 respectively, were returning from a cousin's graduation in Lansing, Illinois, to their house in Buffalo Grove, Illinois. Leo Anderson was driving a station wagon north on the Dan Ryan Expressway, but due to extreme flooding, left the expressway at 87th Street and drove north on State Street until he came to a railroad underpass which was also flooded. Leo Anderson testified that he turned trying to find a way until he drove east on 69th Street where two black youths told him he could not drive through unless he paid them $10. Anderson refused to pay and then tried to turn around but was prevented by the traffic going in the opposite direction. As Anderson continued east on 69th Street, his car was pelted with stones. Anderson then heard shots and turned his head to the right to the passenger's side and saw a man with his hands together outstretched, aiming a gun at the station wagon.
Anderson testified that he saw flashes and that the man continued to shoot and move closer to the car. Leo was struck in the shoulder and throat, and his wife was struck by the final shot. Shortly thereafter, the police arrived and took Leo Anderson and his wife to the hospital. Phyllis Anderson died of a bullet wound to the mouth and brain. On June 14, Anderson identified clothes which he said looked like the clothing the assailant was wearing. The next day, Anderson identified Marrion Logan, the defendant, as the man who fired the gun.
Elizabeth Anderson and four other witnesses also testified about the incident. Their testimony established that the defendant went into a house on 69th Street and returned with a gun. The defendant then stood behind a tree and fired several shots at the station wagon. The defendant's hands were extended forward as he fired the gun. After the shots were fired, the defendant hid what appeared to be a gun. The defendant's clothing was identified, and Elizabeth Anderson and another witness, Terry Robinson, identified the defendant as the assailant.
The defendant did not question the sufficiency of the evidence. However, his initial argument related to the hearing on a motion to suppress the evidence seized in two searches of the defendant's living quarters. The defendant lived with his fiancee, Mary Ann Williams, in the basement of a house located at 345 West 69th Street. The house was owned by Joseph Rogers, and his wife, June Rogers. Mrs. Rogers was also Mary Ann Williams' sister. There was no written lease agreement and neither Joseph Rogers nor the defendant produced rent receipts at the hearing.
The basement had formerly been a recreation room, and the furnishings consisted of a couch, pool table, bar, and a double bed. The defendant used the kitchen and bathroom facilities located upstairs in the house. There were two doors to the basement. The door on the west wall led directly outside and the defendant and Mary Ann Williams had the keys to this door. The door on the east wall led from the basement to the house upstairs and could be locked from the inside. The record indicated that a washing machine was located near the door on the east wall.
It was also established that if Joseph Rogers had difficulty with the heating unit, he would have to walk through the basement. In the same area as the heating unit was a toilet, wash basin, water meter, and a clothes line.
On June 14, the day following the incident, police officers, Crenshaw, Parizanski, and Davis, came to the Rogers' house at approximately 6:30 p.m. Officer Crenshaw had a conversation with the defendant and asked the defendant for the gun used in the homicide. Crenshaw testified that the defendant denied having the gun and told the police officer that he could search his apartment. Also, Officer Parizanski obtained a written consent to search from Joseph Rogers.
In the first search, the officer found a .12-gauge shotgun, a .32-caliber revolver, and a cartridge belt containing .45-caliber ammunition. The officers did not seize the cartridge belt in the first search. The record indicated that in the first search the officers seized the defendant's clothes and weapons. After learning that a .45-caliber pellet had been removed by surgery from Leo Anderson's neck, the police officers returned to Rogers' house. Joseph Rogers signed a second consent for search form, and the police officers seized the cartridge belt containing the .45-caliber ammunition.
The defendant argues that the second search, in which the officers seized the cartridge belt, was unreasonable since there was a landlord-tenant relationship and therefore his landlord could not consent to the search. Alternatively, the defendant argues that if a landlord-tenant relationship did not exist, the defendant had a reasonable expectation of privacy. At the hearing on defendant's motion to suppress, Officer Crenshaw testified that the defendant invited the police to search the premises. This fact alone supports the trial court's denial of defendant's motion to suppress. In addition to the defendant's oral consent, a reading of the record reveals the trial court also relied upon the written consent of Mr. Rogers, a person with common authority over the premises.
As to the second search, the defendant cited Chapman v. United States (1961), 365 U.S. 610, 5 L.Ed.2d 828, 81 S.Ct. 776, for the proposition that the landlord Rogers could not consent to a search of the premises. In Chapman, the landlord visited the rented premises but did not receive a response from the tenant. He smelled the odor of alcohol and after notifying local officials, permitted them to enter the premises. The officials entered a locked window and found a distillery. A motion to suppress the evidence seized from the rented premises was denied and the defendant was convicted of illegal operation of a distillery. The court reversed, holding that the landlord could not consent to a warrantless search of the premises.
In response, the State argues that Chapman does not apply for the reason that the trial court made a finding of fact that negated the existence of a landlord-tenant relationship. Rogers testified that he had access to the basement for inspection of the water meter and to check the heating unit. The defendant's testimony indicated that when he was at work, members of the Rogers family might have entered the basement to use the pool table and to fold clothes after washing. The defendant also used the kitchen and bathroom facilities located upstairs in the house. In addition the record indicated that the only furniture the defendant owned was the double bed, and that most of the furniture in the basement belonged to the Rogers. Also neither the defendant nor Joseph Rogers produced any rent receipts for the eight weeks in which the defendant resided at the house as evidence of payments of $35 per week rent as defendant claimed. Consequently, the general living arrangements of the defendant failed to support a landlord-tenant relationship and the trial court was correct in ruling that a landlord-tenant relationship did not exist.
The defendant argues that he had a reasonable expectation of privacy pursuant to Katz v. United States (1967), 389 U.S. 347, 19 L.Ed.2d 576, 88 S.Ct. 507, and People v. Nunn (1973), 55 Ill.2d 344, 304 N.E.2d 81. In Katz the defendant was convicted of transmitting wagering information by placing telephone calls across State lines. The defendant's telephone conversation was recorded by electronic listening and recording devices from outside the telephone booth. The court concluded that the defendant had a reasonable expectation of privacy and that the eavesdropping devices were a search and seizure within the meaning of the fourth amendment. In Nunn, the defendant's mother permitted a search of her son's locked quarters, consisting of a bedroom and a kitchen without his consent and without a search warrant. In affirming the trial court's granting a motion to suppress the physical ...