APPEAL from the Circuit Court of McHenry County; the Hon.
WILLIAM BLOCK, Judge, presiding.
MR. JUSTICE UNVERZAGT DELIVERED THE OPINION OF THE COURT:
Rehearing denied August 27, 1981.
Defendant, William A. Frank, was convicted of murder and aggravated kidnapping and sentenced in the circuit court of McHenry County to concurrent terms in the penitentiary of 75 years for murder and 30 years for aggravated kidnapping.
In this appeal the defendant raises the following issues:
(1) Whether the trial court erred in denying defendant's motion to suppress certain physical evidence;
(2) Whether the trial court erred in not directing a finding in favor of the defendant at the close of all the evidence on the ground that the State failed to establish the proper venue of the crime as being in McHenry County where he was tried and convicted;
(3) Whether the trial court erred in allowing the State to call without proper notice a co-defendant, thus depriving the defendant of due process of law;
(4) Whether the trial court erred in denying defendant's motion for mistrial because of improper cross-examination of the defendant in violation of a motion in limine granted prior to trial;
(5) Whether the trial court erred in not giving the jury an instruction on involuntary manslaughter and,
(6) Whether the defendant's sentence was excessive in view of the disparate sentences for his co-defendants.
The defendant, his two co-defendants, Edward Wieting and Clif Johnson, and the victim, Edward Caraher, all worked at International Minerals and Chemical Corporation in Libertyville, Illinois. In January of 1979, this plant was in the process of being dismantled because of the company moving to another location and there were relatively few employees working at the plant at that time. The defendant kept a gun at the plant and had another gun with a silencer attached which he kept with him at various times. There was some testimony to the effect that the victim and the defendant had quarreled not long before the day of the murder.
On January 22, 1979, the victim, the defendant and two co-defendants, Wieting and Johnson, were at the International Minerals plant. The defendant and the victim carried a desk out of the plant and put it in Johnson's van. As Caraher started to leave the van Wieting, armed with a pistol owned by the defendant, ordered Caraher to remain in the van saying they "wanted to talk to him." Caraher laughed and started to flee, whereupon Wieting shot at Caraher and wounded him in the knee. The defendant then wrestled Caraher to the ground and shot him in the other leg. Caraher still continued to struggle, whereupon Wieting struck him on the head with the pistol. There was also evidence of a knife wound in one leg and considerable bleeding therefrom. After subduing Caraher, they took him back to the van, handcuffed him and administered chloroform to him to keep him quiet. The three of them then drove around looking for some place to dump Caraher. At this time, Caraher was still alive, although unconscious. They went to a tavern and talked about what they would do with Caraher. Johnson then went outside and when he returned he said that he had killed Caraher by giving him chloroform. When they left the tavern, Wieting believed Caraher was still unconscious rather than dead as his leg was still bleeding. They returned to the plant where they took Caraher's car and drove it to Gurnee, where they removed the license and a tool box and threw away the keys. They then drove into McHenry County where, on a deserted road, they dumped Caraher's body out into a snow bank. His body was found the next day by a McHenry County road crew.
McHenry County police immediately began an investigation of Caraher's death. They learned that Frank, Johnson and Wieting were friends and all worked at International Minerals, where Caraher had worked. They also learned that Frank and Caraher had quarreled at some previous time and that Frank, Wieting and Johnson had been seen together at a tavern the night before the body was found. However, Lieutenant Hendle of the McHenry County police testified he was not looking specifically for the defendant at that time but was looking for the victim's car. On January 30, Lieutenant Hendle and another McHenry County police officer observed Frank's car. They followed it to a gas station and after the car left the gas station, Lake County police, who had been alerted by Hendle, stopped the car and arrested Frank and Wieting. Previous to this, McHenry County police had been aware that Frank was driving on a suspended license and his car was not properly registered. There was also open liquor in the car which they were aware of as they had observed Frank and Wieting drinking liquor in the car. Frank and Wieting were taken to the McHenry County Jail, where Frank was charged with driving on a suspended license. He was not charged with murder at that time. He was given Miranda warnings and during the questioning he was asked if he had shot a gun at the plant. He replied that he had and agreed to show the officer the gun in question, which he said was at a tavern in North Chicago. The police procured a key to the tavern and went there. At this time the officer knew from other employees at the plant that Frank had a gun with a silencer attached which he carried in a green zippered case. The police had no information about a second gun. It was testified, however, that the defendant had agreed to give the police the gun he had shot at the plant. Arriving at the tavern in North Chicago, the defendant reached under the bar and began searching for something. According to Hendle he moved a green zippered case which was on a shelf below and appeared to shove it toward Hendle. Hendle then took the case, opened it and found the gun with the silencer inside the case. Frank also at that time procured a Lugar pistol from another location in the tavern and handed it to Hendle. While they were at the tavern, the police were informed by Frank that he had shot the gun in the basement of the tavern and they searched the basement and found some spent bullets and casings. The spent shells and casings taken from the basement were found to match a bullet in the leg of Caraher. However, the defendant had drilled out the barrel of the silencer so that no ballistic determination could be made as to the gun from which the bullet found in Caraher's leg had been fired.
While at the police station on January 30, the defendant made a statement to the police. He was not, however, charged with murder or held at that time. He was ...