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People v. Free





Appeal from the Circuit Court of Du Page County, the Hon. William V. Hopf, Judge, presiding.


Rehearing denied April 8, 1983.

James Free was indicted in the circuit court of Du Page County for the murder (Ill. Rev. Stat. 1977, ch. 38, par. 9-1) and attempted rape of Bonnie Serpico (Ill. Rev. Stat. 1977, ch. 38, par. 8-4) and for the attempted murder and attempted rape of Lori Rowe. At the conclusion of the trial, the jury returned verdicts of guilty on all counts. The prosecutor requested a hearing to determine whether the death penalty should be imposed. (Ill. Rev. Stat. 1977, ch. 38, par. 9-1(d).) The jury found unanimously beyond a reasonable doubt that the victim was murdered in the course of a burglary and a rape, both of which are aggravating factors supporting the imposition of the death penalty. (Ill. Rev. Stat. 1977, ch. 38, par. 9-1(b)(6)(c).) The jury also found no mitigating factors existed to preclude the imposition of the death penalty. (Ill. Rev. Stat. 1977, ch. 38, pars. 9-1(c), (g).) The trial judge entered judgment sentencing the defendant to death. The defendant was also sentenced on the other counts of attempted murder and attempted rape. The death sentence was stayed (73 Ill.2d R. 609(a)), pending direct appeal to this court, pursuant to Rule 603 (73 Ill.2d R. 603). For the reasons expressed in this opinion, we affirm the convictions and the sentences.

The circumstances of the crimes were testified to by Lori Rowe. The defendant testified but claimed not to have any actual recollection of the circumstances surrounding his criminal acts.

Lori Rowe began work shortly before midnight on April 24, 1978, at the M-2 Service Center, an all-night keypunch business. It is located in a large office complex known as the Glen Hill Office Complex in Glen Ellyn, Illinois. Shortly before 4 a.m., while Lori Rowe was sitting at her desk, she saw a stranger, later identified by her as the defendant, standing just inside the door. Bonnie Serpico, the only other employee present, was in a back room. The defendant held a gun in his left hand and a cloth bag in the other.

As Lori Rowe approached the defendant, Bonnie Serpico came out of the back room. The defendant ordered both women into the back room. He forced them, at gunpoint, into the lunchroom and ordered them to lie down on their stomachs, which they eventually did.

The women asked him what he was there for and if he wanted their money. The defendant stated that he did not want their money, but that they should take off their clothes because he wanted to rape them. Rowe started to cry, and Serpico tried to persuade the defendant to take their money and leave the office. The defendant again stated that he did not want their money and turned toward Rowe, telling her to remove her clothes. Serpico continued trying to reason with the defendant, but he stated, "I've done this before." As he made that statement, he moved toward Rowe and took some twine out of the cloth bag he was carrying. He told her to put her hands behind her back.

After securely tying Rowe, the defendant took Serpico into the other room. As they were going into the other room, Serpico looked in his bag and commented, "You came prepared for this." The defendant replied, "Yes, I've all sorts of stuff in there."

After Serpico and the defendant went into the next room, Rowe began struggling to get loose. She heard Serpico say that she had her clothes off and the defendant responded, "Get on your stomach, put your hands behind your back. I want to tie your hands." Serpico urged the defendant not to tie her hands, pointing out that she had not resisted the defendant.

In the meantime, Rowe managed to get her shoes off and was attempting to get the rope off her feet. The defendant came into the room to check on Rowe, and he saw that Rowe had loosened the rope. He became angry and yanked the rope, pulling her sideways until she fell onto her side.

While lying on her side, Rowe heard Serpico get up and run. The defendant started running after her. Seconds later Rowe heard a gunshot. The defendant then ran back into the room where Rowe was lying. Rowe was sitting up now and the defendant pointed his gun at her and she cried, "Oh no." As she lowered her shoulder and turned away from the defendant, he shot her and ran from the building.

With her hands still tied behind her back, Rowe managed to crawl out to the main office area where Serpico lay dead. Rowe was able to pull the telephone off a desk and contact the police. She remained there until the police arrived about 15 minutes later.

An autopsy revealed that the cause of Serpico's death was exsanguination, or severe loss of blood, related to a gunshot wound.

Through a police investigation, suspicion focused on the defendant, who was arrested early the next morning, April 25, 1978, in a house owned by his father in Dubuque, Iowa. He was charged with one count of murder and attempted rape against Bonnie Serpico and one count of attempted murder and attempted rape against Lori Rowe.

The jury found the defendant guilty on all counts. At a sentencing hearing on the murder conviction, as noted, the jury found that Bonnie Serpico was killed in the course of a rape and a burglary and that no mitigating factors existed sufficient to preclude imposition of the death sentence. The trial judge entered a judgment sentencing the defendant to death. At a later sentencing hearing, on the other convictions, the court sentenced the defendant to serve two concurrent 15-year prison terms for the two counts of attempted rape and a consecutive 30-year sentence for the attempted murder.

The defendant has raised some 16 issues to be resolved on this appeal. Other facts relevant to their resolution will be set forth with the discussion of each particular issue. Several issues raised in this case have been resolved in prior opinions of this court and will not be further discussed in this opinion. The defendant challenges the constitutionality of our death penalty statute, which was resolved in People ex rel. Carey v. Cousins (1979), 77 Ill.2d 531. The defendant argues that our statute does not include attempt (here, attempted rape) in the list of aggravating factors which trigger eligibility for the death penalty. That issue was resolved against the defendant in People v. Walker (1982), 91 Ill.2d 502. Defendant argues that the trial court erred when it held it has no power or discretion to disregard a jury's verdict in a death penalty proceeding and must enter judgment on that verdict. That was resolved, contrary to defendant's position, in People v. Lewis (1981), 88 Ill.2d 129, and People v. Gaines (1981), 88 Ill.2d 342. Also previously rejected were the contentions that the appellate review procedure provided by our statute is inadequate (People v. Brownell (1980), 79 Ill.2d 508, 541-44; People v. Gaines (1981), 88 Ill.2d 342, 383; People v. Lewis (1981), 88 Ill.2d 129, 146-47), and that defendants sentenced to death are denied relief under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1977, ch. 38, par. 122-1 et seq.), in violation of their constitutional rights. People v. Gaines (1981), 88 Ill.2d 342, 384-86.

As to the issues to be decided in this case, we first consider whether a motion to suppress certain physical evidence should have been granted.

Through police investigation it was learned that the alleged assailant was James Free, a former employee of the Glen Hill Office Complex. On Sunday, April 23, 1978, another incident involving the defendant occurred. It was reported by several women working at the office complex that a man, later identified by them as the defendant, came into their office. The women questioned him, and he said that he had come to clean the carpet. He walked through the office and then left.

Two of the women, Julie Kelly and Mary Ferrier, went down to the basement to a vending machine. They saw the defendant walk past the doorway. When they went back into the hallway, they observed him staring at them through a window. They ran back to their office and later received a phone call from a person with a male voice. The caller described the women who had been in the basement and stated that they had left change in the vending machine. He suggested they come down to get their change. The women knew they had not left any change and refused to go down to the basement. They then saw the defendant riding around the parking lot of the office complex in a red Ford pickup truck.

The police talked with the manager of the Glen Hill Office Complex, and he stated that the description of the offender and the vehicle driven by the offender matched that of James Free, a former employee of the construction company that built the complex and of the complex itself. He was later identified in a photo lineup by Lori Rowe as her assailant. Further information led the police to believe that the defendant was residing at his parents' townhouse in Dubuque, Iowa, on leave for 30 days from the army.

On April 25, 1978, Detective Velon and two other Glen Ellyn, Illinois, police officers accompanied Iowa officers to the Free townhouse in Dubuque. The police had an arrest warrant for James Free for murder and attempted murder. Emergency equipment, including fire equipment and an ambulance, were stationed in the vicinity.

The police officers, using a public address system, made repeated attempts to call the defendant from the house for about 30 minutes. After that time, and after seeing someone at both the front and back windows, a tear gas canister was fired into the second-floor window. The defendant came out of the house and was ordered to lie on the ground with his hands out in front of him. Other officers were ordered to watch the house in the event that someone else was still in there. While lying on the ground, the defendant was handcuffed.

The defendant, at this time, was asked where his gun was and whether anyone was in the house. He replied that his gun was in the basement and that no one was in the house. No other questions were asked of the defendant. The defendant was then taken to the Dubuque police department. Only a short period of time elapsed between the time the defendant came out of the house and the time he was placed in the squad car. No threats were made, and no physical contact ensued, although it is indicated that officers had guns pointed at him during this period.

After the defendant was in custody, several officers attempted to enter the house. Captain Egan of the Dubuque police department entered and proceeded to the second floor "to make certain there was no one else present in the building and to make certain that the tear gas projectile did not hit someone or start a fire." On his first two entries, Captain Egan was forced out of the house by the tear gas. On his third trip to the second floor, Egan retrieved the tear gas canister.

Officer Kisting and Detective Velon attempted to check the first-floor area to determine if anyone else was present in the building. During this entry, Velon observed brown twine "in a garbage bag, on the very top of that bag, fully exposed * * *." He testified that the twine was similar to the twine that he knew had been used to tie the hands of Lori Rowe. He also testified that he was not looking for the twine when he entered the premises and did not seize the twine during this search.

Officer Kisting and Detective Velon also went to the basement. Their search of the first floor and the basement lasted about 45 seconds. Captain Egan testified that all three of his attempts to search the second floor lasted about two minutes.

All three officers testified that they did not look into any drawers, cabinets or closets during their search. The only item seized was the tear gas canister, which had left a scorch mark on the floor of the bedroom where it landed.

The officers left the scene and obtained a search warrant through an Iowa magistrate. They returned to search the house and seized a gun, boxes of ammunition, clothing, the brown twine, a gym bag, reloading equipment, plastic earmuffs, and a towel. Photographs were also taken of the scene.

The defendant filed a motion to suppress the physical evidence because the granting of the search warrant was based upon the defendant's involuntary statement made following his arrest and information gained during allegedly unlawful entries into the house after he was arrested. The defendant also filed several motions to suppress certain statements, which motions are not before us on this appeal.

The trial court denied the motion to suppress the physical evidence after a lengthy evidentiary hearing. The court found that the entries into the house were not unlawful searches and that the statement made by the defendant that his gun was in the basement at the time of his arrest was involuntary, but not in violation of his Miranda rights. The court held that although the statement could not be used as evidence, it was properly used in the affidavit for a search warrant. The court also found that even excluding the "gun statement" and information gained in the prior entries and searches of the house, the affidavit and oral testimony given to the issuing magistrate constituted probable cause for the issuance of the warrant.

On appeal, the defendant again argues that the search warrant was invalid because it was based on information gathered at an allegedly prior illegal entry and on the allegedly involuntary statement made by the defendant. He also argues that because the warrant is invalid, all the evidence seized pursuant to the warrant must be suppressed.

We hold that the prior entries into the house were reasonable, necessary and cursory searches under the exigencies of defendant's arrest. The entries were also justified as valid "protective sweeps." While lawfully on the premises, Detective Velon observed the twine which was in plain view. This information was therefore properly included in the search warrant affidavit and relied upon by the magistrate. The information concerning the twine, plus other information presented to the magistrate, all of which will be discussed later, established probable cause to issue the warrant, even without consideration of the defendant's allegedly involuntary statement. Therefore, we need not decide whether the statement could properly be considered in support of the search warrant.

The guiding principle is reasonableness in fourth amendment searches and seizures. (United States v. Chadwick (1977), 433 U.S. 1, 9, 53 L.Ed.2d 538, 547, 97 S.Ct. 2476, 2482.) In determining whether law-enforcement officials acted reasonably in a given case, courts should judge the circumstances as known to the officials at the time they acted. (People v. Clay (1973), 55 Ill.2d 501, 504.) It must be remembered "that a warrantless entry by criminal law enforcement officials may be legal when there is compelling need for official action and no time to secure a warrant." (Michigan v. Tyler (1978), 436 U.S. 499, 509, 56 L.Ed.2d 486, 498, 98 S.Ct. 1942, 1949.) Warrantless searches are permissible where exigent circumstances are present. Since exigent circumstances authorize warrantless entries for purposes of searching, certainly circumstances may exist which authorize warrantless entries for less intrusive purposes.

We believe that circumstances existed here which justified the warrantless entry into the house. In fact, the police had an obligation to enter the premises, retrieve the tear gas canister, air out the house, check for fire, and determine whether there were persons present who either were in danger or posed a substantial danger to the police. (See 2 W. LaFave, Search and Seizure secs. 6.4(c), 6.6 (1978).) In People v. Connolly (1973), 55 Ill.2d 421, the police surrounded a two-story building, and efforts to persuade the defendant to surrender had failed. Tear gas canisters were fired into the building, and a fire started on the second floor. Defendant was arrested as he descended the stairs from the second floor. A fireman entered the building and was overcome by smoke. A police officer then entered the apartment attempting to assist the fireman, "as well as attempting to locate other persons possibly still in the gas-filled house." (People v. Connolly (1973), 55 Ill.2d 421, 427.) The officer observed a fur coat and two revolvers on top of a garbage can. He seized the evidence.

The court in Connolly held that the trial court properly denied the defendant's motion to suppress. The court stated that the officer was in the building to help a fireman, as well as to ascertain if any persons were in the building. The items seized were known by the officer to be similar to those used in the commission of a crime, and they were in plain view. People v. Connolly (1973), 55 Ill.2d 421, 427.

A substantially similar situation existed in our case. The officers entered the house to make certain there was no one in the house who was either a danger to the police or in danger himself. Also, the officers were concerned about the fire hazard presented by the tear gas canister, which did, in fact, scorch the floor. It was not necessary to wait until a fire started before the officers could enter to retrieve the tear gas canister as the defendant would apparently require.

The entry and search to determine if anyone is in the house who may pose a danger to the police is often referred to as a "protective sweep." Professor LaFave states:

"In some situations, the `potentiality for danger surrounding the arrest' may be so high that entry of premises to make a `protective sweep' will be permissible even though the arrest itself was achieved without entry. Typically, the reason no entry was made to arrest is because the police perceived the situation as a very dangerous one and thus took steps to cause the prospective arrestee to exit the premises and submit to arrest outside. Even with that person now in custody, the police may have good reason to doubt whether they can withdraw from the area with their prisoner without being fired upon, in which case an entry and `protective sweep' is justified. Such entries have been upheld when a weapon used in a recent crime by the arrestee or a weapon used by someone in firing at the police from those premises is as yet unaccounted for, and also when police have information the defendant was travelling with armed associates or that the defendant was armed and accompanied by another." 2 W. LaFave sec. 6.4(c), at 431 (1978).

The officers' entry into the house falls within the above rule. The officers knew that defendant had used a gun in the commission of the crimes. His brother-in-law had told the police that the defendant carried a handgun in his truck. When the defendant was captured, he did not have the gun. Although there was no evidence that the defendant had an accomplice in the commission of the crimes, one officer testified that he saw someone at both the front and back windows of the house before the defendant came out, and he could not be sure if both were the same person. Thus, the officers had knowledge that a violent crime had been committed, that the gun used had not been recovered, and that someone was possibly in the house who would have access to the weapon. There was a potentiality for danger surrounding the arrest which justified the "protective sweep" of the house. (See McGeehan v. Wainwright (5th Cir. 1976), 526 F.2d 397.) A serious and demonstrable potential for danger clearly existed here. (See United States v. Kinney (6th Cir. 1981), 638 F.2d 941; United States v. Smith (5th Cir. 1975), 515 F.2d 1028, 1031.) The officers did not enter the house for the purpose of conducting a search except for the limited purposes indicated. Only this limited search was made while in the house, and nothing except the tear gas canister was seized. Even the brown twine, which one officer observed while in the house, was not taken, although it resembled twine which had been used to bind the victims.

At the hearing on the motion to suppress, the trial court was shown a videotape of the entire arrest scene. Although defendant argues that the videotape demonstrates that the officers did not feel that they were in danger, the court was of the opinion that the videotape and other evidence showed that an exigency existed. The court stated, "Having viewed the videotape and having considered the testimony in my opinion there was a sufficient exigency to have warranted these entrances by the officers." The trial court found that the entrances were reasonable for the reasons stated by the officers and justified under the exigencies of the arrest. Detective Velon was properly in the house, and his observation of the twine in plain view was properly used in the affidavit for the search warrant. See People v. Connolly (1973), 55 Ill.2d 421, 427; People v. Bombacino (1972), 51 Ill.2d 17.

The defendant also argues that to find probable cause the Iowa magistrate relied on Detective Velon's observation of the twine made during an illegal search and the defendant's involuntary statement made at the time of his arrest and that, therefore, the warrant was invalid. The defendant argues that any unlawfully obtained information used to secure a search warrant invalidates that warrant and the subsequent search is a fruit of the poisonous tree, even if probable cause can be found without the illegal information.

As we have already stated, Detective Velon's entry into the house was legal, and his observation of the twine in plain view was properly included in the affidavit for the search warrant. The only remaining allegedly unlawfully obtained information used to secure the search warrant was the statement made by the defendant at the time of his arrest, which the trial court, while suppressing its use as evidence, permitted to be used in the affidavit for the search warrant. We need not decide whether it was properly included in the affidavit for "[i]f the lawfully obtained information amounts to probable cause and would have justified issuance of the warrant, apart from the tainted information, the evidence seized pursuant to the warrant is admitted." James v. United States (D.C. Cir. 1969), 418 F.2d 1150, 1152; United States v. Marchand (2d Cir. 1977), 564 F.2d 983, 1002; United States v. Koonce (8th Cir. 1973), 485 F.2d 374, 379; see also 3 W. LaFave, Search and Seizure sec. 11.4(f), at 649-50 (1978).

The magistrate who issued the warrant had before him the affidavits of two police officers and the oral testimony of one of the officers. He was informed that the officers had an arrest warrant for defendant which indicated there was probable cause to believe defendant had committed the crimes with which he was charged. The magistrate knew that the defendant had been arrested after he was forced from the house, for which a search warrant was sought, and that the weapon used in the commission of the crimes was not recovered. The magistrate was also informed concerning the brown twine which an officer saw while lawfully in the house. It was described to the magistrate as the same color, size and texture as that used to tie the victims. The affidavits also stated that the defendant's brother-in-law, a police officer employed by the Wheaton, Illinois, police department, told the affiants that on April 22 or 23 defendant had in his possession bullets of the same caliber used on the victims and that the defendant carried a handgun in his truck capable of firing the bullets that were taken from the victims' bodies. The magistrate was also informed that the assailant had in his possession a cloth bag in which he carried the twine and that his face had been covered with a terrycloth towel which was tied with brown twine. An officer testified before the magistrate that a military button had been found at the scene of the crime and that defendant was, at that time, a member of the United States Army. The property listed in the search warrant consisted of the gun, bullets, brown twine, towel, white laundry bag, multicolored plaid shirt (assailant had been described as wearing a multicolored plaid shirt) and clothing with military-type buttons, with a button missing. With the exception of this last item, there was testimony that the assailant had all of these items in his possession when the crimes were committed. The defendant had returned to the house, for which the search warrant was sought, the same day the crimes were committed, had slept there overnight, and had been forced from the building the next morning by the use of tear gas and did not have the items listed in the search warrant in his possession when he came from the house.

Whether or not probable cause exists in a particular case depends upon the totality of the circumstances and facts known to the officers and court when the warrant is applied for. In deciding the question of probable cause the courts are not disposed to be unduly technical. Rather, the probabilities considered are the factual and practical considerations of everyday life on which reasonable men, not legal technicians, act. Draper v. United States (1959), 358 U.S. 307, 3 L.Ed.2d 327, 79 S.Ct. 329; People v. Clay (1973), 55 Ill.2d 501, 505.

Probable cause means simply that the facts and circumstances within the knowledge of the affiant were sufficient to warrant a man of reasonable caution to believe that the law was violated and evidence of it is on the premises to be searched. It is not required that the complaint or affidavits show beyond a reasonable doubt that the warrant should be issued. (See People v. Fiorito (1960), 19 Ill.2d 246, 257; People v. Francisco (1970), 44 Ill.2d 373, 376.) In our case, even if we exclude defendant's allegedly involuntary statement that the gun was in the basement of the house, the information before the magistrate was sufficient to establish probable cause for the issuance of the search warrant. The court held extensive hearings and made findings of fact. The trial court's determination of factual matters in a hearing on a motion to suppress will not be disturbed unless manifestly erroneous. (People v. Conner (1979), 78 Ill.2d 525, 532; People v. Williams (1974), 57 Ill.2d 239, 246; People v. Clay (1973), 55 Ill.2d 501, 505.) We conclude that the trial court's determination, even excluding consideration of the involuntary statement, was not manifestly erroneous.

The defendant next contends that he was denied a fair trial because the jury was selected in compliance with Witherspoon v. Illinois (1968), 391 U.S. 510, 20 L.Ed.2d 776, 88 S.Ct. 1770, resulting in a conviction-prone jury. We need not address that issue here because we held in People v. Lewis (1981), 88 Ill.2d 129, 147, that a jury qualified in compliance with Witherspoon does not affect the validity of the conviction.

The defendant also contends that certain studies demonstrate that a venire qualified in compliance with Witherspoon results in a jury not only conviction prone, but also unwilling to accept an insanity defense. We need not address that issue because, as will be discussed later, this defendant did not present an insanity defense and was not entitled to an insanity-defense instruction.

The defendant makes the further objection that the exclusion of veniremen solely on the basis of their refusal to follow the death penalty law denies the defendant his right to a jury representative of a cross-section of the community in violation of his sixth and fourteenth amendment rights. (Cf. Taylor v. Louisiana (1975), 419 U.S. 522, 42 L.Ed.2d 690, 95 S.Ct. 692.) This contention was specifically rejected in Lockett v. Ohio (1978), 438 U.S. 586, 57 L.Ed.2d 973, 98 S.Ct. 2954, and we reject it also. In Lockett the court stated:

"Nor was there any violation of the principles of Taylor v. Louisiana, supra. In Taylor, the Court invalidated a jury selection system that operated to exclude a `grossly disproportionate' [citation] number of women from jury service thereby depriving the petitioner of a jury chosen from a `fair cross-section' of the community [citation]. Nothing in Taylor, however, suggests that the right to a representative jury includes the right to be tried by jurors who have explicitly indicated an inability to follow the law and instructions of the trial judge." (Lockett v. Ohio (1978), 438 U.S. 586, 596-97, 57 L.Ed.2d 973, 984-85, 98 S.Ct. 2954, 2960.)

(See Spinkellink v. Wainwright (5th Cir. 1978), 578 F.2d 582.) The right to trial by jury or the right to a representative jury does not include the right to be tried by jurors who have stated that they will refuse to follow the law.

We have previously rejected the contention that a juror who states that he would be able to decide the issue of guilt impartially should be permitted to pass on that issue notwithstanding his inability to vote for the death penalty. (People v. Gaines (1981), 88 Ill.2d 342, 357.) In People v. Lewis (1981), 88 Ill.2d 129, 146-47, we also rejected the argument that the mere conviction of a defendant by a jury establishes "good cause" under section 9-1(d)(2)(C) (Ill. Rev. Stat. 1977, ch. 38, par. 9-1(d)(2)(C)) to excuse the convicting jury and to impanel another jury for sentencing purposes. People v. Lewis (1981), 88 Ill.2d 129, 146-47.

The defendant states that of the four veniremen excused for cause, over defense objection, only one stated that he would automatically vote against the death penalty, while the answers of the other three jurors were "equivocal." The defendant's characterization of the potential jurors' answers results from his focus on a single question and answer in isolation from others. (People v. Gaines (1981), 88 Ill.2d 342, 352.) The defendant also focuses on the answers given to general questions instead of the answers given to specific questions dealing with the willingness or unwillingness of a potential juror to follow the death penalty law. Our examination of the record satisfies us that the standards of Witherspoon are clearly met. The record unambiguously establishes that each of these veniremen would not impose the penalty of death regardless of the evidence. They have not stated that they have only general religious or moral objections to the death penalty, but have made it unmistakably clear that they would automatically vote against the death penalty without regard ...

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