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People v. Kavinsky





APPEAL from the Circuit Court of Cook County; the Hon. FRED G. SURIA, Judge, presiding. MR. JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:

Defendant Jerry Kavinsky, age 16 at the time, was charged by grand jury indictment with the aggravated kidnapping (Ill. Rev. Stat. 1977, ch. 38, par. 10-2) and murder (Ill. Rev. Stat. 1977, ch. 38, par. 9-1) of 11-year-old Roger Myers (Roger). *fn1 After a jury trial, defendant was found guilty on both counts and sentenced to terms of 40 years for murder and 20 years for aggravated kidnapping, to be served concurrently. On appeal, defendant raises the following issues: (1) whether the trial court erred in admitting a statement concerning the crimes which was made by defendant to an employee of the youth home in which he was held following his arrest; (2) whether defendant was denied an impartial jury by the presence of a juror on the panel who had read about the case in the newspaper and who thought that the perpetrators were already convicted; (3) whether reversible error resulted from the admission of evidence of other crimes defendant engaged in or from the prosecutor's inquiry upon matters previously barred by court order; (4) whether defendant was denied his constitutional right to represent himself at trial; and (5) whether the trial court considered improper matters at the hearing on aggravation and mitigation following conviction.

On March 2, 1978, the Myers family home in Westmont, Du Page County, was burglarized and 11-year-old Roger Myers was abducted. His body was found in a wooded area in Willow Springs, Cook County, on April 9, 1978. An autopsy revealed that Roger had died as a result of 23 knife wounds to the upper body.

On April 10, 1978, defendant was arrested for the murder of Roger and was charged in a delinquency petition in Du Page County Juvenile Court. A hearing pursuant to section 2-7 of the Juvenile Court Act (Ill. Rev. Stat. 1977, ch. 37, par. 701-1 et seq.) was held, and it was determined that defendant should be tried in criminal court. The case was transferred to Cook County, where a grand jury issued an indictment charging defendant with aggravated kidnapping and murder.

At the pretrial stage of proceedings, defendant made several motions either in limine or to suppress evidence. The trial court barred evidence: (a) that defendant had said, "I don't care about that asinine kid," after his detention hearing in Du Page County; (b) that defendant had been shown a picture of Roger by the police shortly after his arrest and had "thrown a kiss" at it and then burst out laughing; and (c) that defendant had attempted to escape from the Du Page County Youth Home while holding an employee there at knifepoint. The court denied defendant's motion to suppress statements which he made to Robert Farra (Farra), a supervisory employee at the youth home, which concerned defendant's participation in the burglary, kidnapping, and murder. The trial court's basis of this last ruling was that defendant had volunteered the statements and that Farra was not acting as an officer of the court. This latter finding was made in reference to an exclusionary provision of the Juvenile Court Act.

Prior to trial, defendant's public defender was granted a motion to withdraw. Defendant told the trial court that he wished to represent himself. After admonishing defendant on the risks involved in such a course of action, the trial court denied defendant's request and required that he choose an attorney to represent him. Defendant finally acquiesced.

During examination of the State's first witness at trial, one of the jurors indicated in the judge's chambers that she remembered reading about the case in the paper and quoted a statement concerning defendant from the account. She had assumed to that point that the perpetrators had already been convicted. On inquiry from the trial court, she stated that she thought she could remain impartial and base her decision solely on the evidence. She was not dismissed from the panel.

The following summary of the testimony of relevant prosecution witnesses is presented in the chronological order of the events of this case. *fn2 Dean Metzger was an acquaintance of defendant. *fn3 On the morning of March 2, 1978, defendant told Metzger of a burglary he had committed on the prior night. A defense mistrial motion based on this testimony was denied. Metzger then described how defendant, himself, and three others (Pennock, Owens, and Garcia) had set out to commit burglaries. The first attempt was abandoned when movement was seen inside the target apartment. The second attempt ended when the resident came to the door. Defense counsel's objection to this testimony was overruled.

Metzger's testimony then centered upon the Myers occurrence. Defendant apparently called the Myers apartment and believed that no one was home. The group drove to the apartment and broke in through the back door. As they went through the house, Metzger found Roger hiding under a bed. Informed of Roger's presence, defendant decided that it would be necessary to kill Roger in order to prevent him from going to the police. Roger was taken to the car in which defendant and the others had come. The group drove to the school of defendant's girlfriend, intending to inject "tic" into Roger "to DOA him." Defendant's girlfriend did not have any of the drug, and defendant rejected her suggestion that they try to buy Roger's silence. The group then left the school, and Metzger was dropped off. Four days later, defendant told Metzger that everything went as planned and that Roger was dead. Asked how he had killed Roger, defendant responded with an apparent stabbing gesture.

Roland Williams was also an acquaintance of defendant. On an evening in late March 1978, defendant and another member of the group which had engaged in the burglary (Owens) came to visit Williams. A conversation took place, during which time the participants were splitting up "some stuff." Defense counsel objected to this testimony, apparently believing that it related to the proceeds of a burglary. However, it is clear from Williams' later testimony that the "stuff" was marijuana. As they talked, defendant brought up the Myers burglary. He described the event to Williams and told the latter how Roger had been brought to the woods by defendant and Owens, and had said "goodbye, Jerry" just before defendant started stabbing him. Defendant described the stabbing in some detail, and then related how he was stopped by a police officer upon leaving the woods. According to Williams, defendant threatened him that night when warning him to keep silent on the matter.

Willow Springs Police Sergeant Olsen testified that on the afternoon of March 2, 1978, while on patrol, he found a car stuck in a roadside snowbank. Some others came along and helped free the car. The sergeant left. As he proceeded down the road, he encountered two young men walking. He stopped them. They stated that they were looking for help to get their car out of the snow. Olsen gave them a ride back to the car that had just been freed. He later identified the two as defendant and Owens. Garcia was identified as the driver of the car which had been stuck. Olsen stated that Garcia's car had been stuck directly across from the place where Roger's body was later found.

Du Page County Sheriff's Detective Weihofen testified that he was assigned to investigate into the burglary of the Myers home and the disappearance of Roger. After an investigation of 5 1/2 weeks, Weihofen was led to Roger's body by co-defendant Garcia, who had already been arrested.

Westmont Sergeant Trout was assigned to arrest defendant on April 10, 1978. Defendant was found at his mother's apartment and responded "what took you so long" upon being advised that he was under arrest. Trout told defendant his Miranda rights from memory at the time of the arrest, and then read them to him from a card when they arrived at the police station.

Robert Farra testified that he was the evening shift supervisor at the Du Page County Youth Home at the time defendant was being held there. On April 15, defendant was allowed to make a phone call to his girlfriend in the presence of Farra. Upon completion of the call, defendant appeared to Farra to be upset. Farra asked defendant what he was feeling and if he "was hurting." According to Farra, defendant then began a conversation which eventually led to the Myers burglary. Defendant described to Farra how he had taken Roger to the woods and how he had stabbed the boy. Defendant related that Roger asked him, "Jerry, can you do it fast," and that after being stabbed the first time, the boy had turned to defendant and screamed, "Jerry, you lied to me. You said you could do it fast." Defendant related to Farra that he knew Roger was dead when he saw blood gurgling from Roger's chest. Defendant then told Farra how he had left the woods with Owens.

As the sole witness in his defense, defendant took the stand. He described the early stages of the events of March 2, 1978, much as had the prosecution witnesses. Defendant related that when Roger was found under the bed during the burglary, it was Metzger who stated that Roger had to be killed. Defendant told Metzger that he wanted no part of it. Defendant described how they took Roger and drove to defendant's girlfriend's school, but denied that he intended to inject drugs into Roger. They left the school, dropped off Metzger, then Pennock, and then returned to pick up Metzger. Defendant then left and hitchhiked home. Defendant next saw Metzger at school the following week, where Metzger told defendant that he had "taken care of the problem" and had stabbed Roger to death.

Defendant said that when he had held the conversation with Williams later in the month, he had told the latter that Metzger had done the killing. Defendant also said that while in custody, he was allowed to phone his girlfriend under the supervision of Farra. Farra told defendant that he was guilty of Roger's murder and would probably get the electric chair. Defendant denied to Farra that he killed Roger and told Farra a little bit about Metzger's involvement. Defendant denied on direct examination that he had killed Roger.

On cross-examination, the State's attorney asked defendant if, while in custody, he had taken a knife to an employee at the youth home. Defense counsel objected prior to response, and the trial court admonished the jury to disregard the question. Some time later, defendant was asked if he remembered being shown a picture of Roger by the police and "kissing off" the picture while laughing. An immediate defense objection was sustained prior to answer, and the jury was again told to disregard the question. The court also denied a motion for mistrial.

After deliberation, the jury convicted defendant of both charges. At the hearing in aggravation and mitigation, the State called the principal of Roger's school, who testified to Roger's positive attributes. Defense ...

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