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People v. Davis

OPINION FILED FEBRUARY 18, 1983.

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,

v.

GIRVIES L. DAVIS, APPELLANT.



Appeal from the Circuit Court of St. Clair County, the Hon. Stephen M. Kernan, Judge, presiding.

JUSTICE MORAN DELIVERED THE OPINION OF THE COURT:

Rehearing denied April 8, 1983.

Defendant, Girvies Davis, was indicted with a co-defendant, Richard Holman, age 17, in the circuit court of St. Clair County for one count of murder in violation of section 9-1(a)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 9-1(a)(1)). The causes were severed, and the charges against Holman were later dismissed pursuant to a motion by the State. Defendant was tried by a jury and found guilty of murder. At a separate bifurcated sentencing hearing, the same jury unanimously determined that the necessary aggravating factors existed, and that there were no mitigating circumstances sufficient to preclude imposition of the death penalty. The jury returned a verdict directing that defendant be sentenced to death, and the court entered judgment on the verdict. Defendant's post-trial motions were denied, and he brings a direct appeal to this court (Ill. Const. 1970, art. VI, sec. 4(b); 73 Ill.2d R. 603), alleging numerous errors in all stages of the proceedings.

The evidence adduced at trial indicates that on Friday, December 22, 1978, the victim, 89-year-old Charles Biebel, was shot to death in his mobile home located off Route 161. Jean Biebel Moore, the daughter of the deceased, testified that she discovered her father's body at 4 p.m. She stated that two watches, a billfold, "a number of guns," and a television set had been taken from his home. On cross-examination, she indicated that she had offered a $5,000 reward for information leading to the arrest and conviction of her father's murderer.

Gregory Mitchell, who testified that he was a "fence," stated that in late January of 1979, the defendant phoned him and said "we might have something for [you] later on." That evening, Holman brought Mitchell a gun. Mitchell further stated that he saw defendant later that same night, and defendant inquired as to how much money Holman was paid for the gun. He also testified that he again saw defendant on September 10, 1979, in the company of police officers. At that time, defendant told him to turn over to the police "any of the guns or T.V.'s" because Holman accused him of "doing some crimes."

Mitchell stated that a police officer gave him money to buy back the gun which he had sold to another individual. He did so, and the weapon was introduced into evidence at trial. Mitchell identified the gun as the one he purchased from Holman. One of the victim's neighbors, William Imboden, testified that this weapon belonged to the victim.

The State was permitted at trial to introduce evidence of two other murders for the limited purpose of showing defendant's modus operandi. One of the victims, Frieda Mueller, was 78 years old at the time of her death. She lived off Route 163. Mueller was found shot to death on the afternoon of Friday, December 8, 1978. A television set, billfold and checkbook were stolen. Evidence of this crime, which occurred two weeks prior to the Biebel murder, was also admitted to show defendant's knowledge that a murder was contemplated because previously, under similar circumstances, a murder did take place.

Similarly, Esther Sepmeyer was an elderly woman who lived in a rural area off Route 162. Her grandson, Rodney Sepmeyer, testified that Mrs. Sepmeyer was shot to death on Friday, July 13, 1979. A television set, replica antique radio, stereo, lawnmower and a .22 Remington rifle were taken from the home. The lawnmower and radio were introduced into evidence and identified by the witness. These items had been recovered from defendant's home pursuant to a search warrant. The witness also drew a picture detailing the inside of the victim's home. Further evidence disclosed that a latent fingerprint recovered from the home belonged to Holman. No fingerprints matching defendant's were found.

James Lay, chief investigator for the St. Clair County sheriff's department, testified that pursuant to defendant's request, he spoke with him at approximately 10 p.m. on September 9, 1979. Defendant was read his Miranda rights and signed a form indicating that he understood them. Defendant then stated that he had information regarding certain murders in which he was involved. The defendant gave Lay a list of crimes involving robberies, burglaries and shootings. He disclosed various locations at which evidence of the crimes could be found, but none of the items described were recovered. Pursuant to defendant's description, Officer Lay drew a sketch of the inside of the Sepmeyer home. This picture was later circulated to the jury along with the sketch drawn by Rodney Sepmeyer. Lay further testified that on September 10, 1979, defendant dictated three statements to police officers admitting complicity in the Sepmeyer, Mueller and Biebel murders. On cross-examination he stated that six months earlier defendant had denied involvement in the Biebel murder and had stated that he could not locate the victim's home.

The defendant's statements regarding the Biebel, Mueller and Sepmeyer murders were read to the jury. Defendant gave the following statement concerning the December 8, 1978, Mueller murder:

"Me, Girvies L. Davis, and Richard Holman drove my blue `70 Buick to a farm house off of Route 163 on the Centreville side of Millstadt. We turned to the right on a back road and pulled up in the driveway to the left. We got out of the car and went to a side or back door and pushed it open. This door opens into the kitchen. Once we got in, an old lady was coming towards us from the bedroom. I started to search the house when Ricky told the old lady to sit in a chair in the kitchen. We took some items, I think a T.V. from the kitchen. While I was taking the T.V. out to the car, Ricky said he shot her in the back. I heard the shot from outside. The lady was sitting at a small desk in the kitchen. He took some items, I think a T.V. from the kitchen. * * * Ricky took a black man's wallet from the desk drawer * * *."

With reference to the December 22, 1978, Biebel murder, defendant dictated the following statement:

"Sometime in 1978, I don't remember exactly, me and Richard Holman drove up to a mobile home by a church. I was driving my blue Buick, 1970 model. We stopped in the driveway of the trailer. We got out of my car and we walked to the trailer. The front door was open, so we walked in. There was an old man sitting in a wheelchair facing the front door. I asked him where the money was. He said he didn't have any. We took a double barrel shotgun and a T.V. I was in the bedroom in the front room, and inside of the trailer was the kitchen on the right of the front door. Then the living room, then a bedroom down the hall to the left. The T.V. was in the front room, and the shotgun was in the bedroom. I carried the T.V. and gun out to the car. Then I heard a shot and Ricky came out and said he shot the old man. He sold the T.V. and gun somewhere but I can't remember where."

Regarding the circumstances of the July 13, 1979, Sepmeyer murder, defendant stated:

"[A]bout two months ago a friend of mine by the name of Ricky Holman who also goes by the name of Ricky Shaw, and I were driving in my 1970 Buick 225. We were driving on the interstate and I remember seeing a sign that said, St. Jacob on it. We drove past this and then we exited the highway by some service stations. We drove down this road until we came to an old house. It was sitting on the right side of the road. This house had a barn sitting in the back. I drove into the driveway and drove to the back of the house with the front of the car facing the back door. Both Ricky and I got out of the car and went up to the back door. I can't remember if we had to force the door open or not, but we went into the house. The back door leads into a kitchen and from the kitchen I could see that there was an old lady laying in a bed in a bedroom next to the kitchen. Ricky and I both walked into the bedroom right away. I went into the bedroom for a short time and then I started looking around the rest of the house and Ricky stayed in the bedroom. After I left the bedroom, I walked into the dining room and then in the spare room, and then into a hallway. The hallway had stairs leading to the upstairs but I never went upstairs. In the spare room there was a lawn mower, it was yellow with a three and a half h.p. motor. I took the handle off this lawn mower and then I carried it outside and put it in the trunk. While in the back room, I saw a motor thing with a black hose on it. I believe it was used to suck water and things up, but I didn't take it. In the hallway there was a turn table sitting on a heater. I can't recall what name it was, but it had a plastic top and it had a top on it and I loaded it into the car. After I loaded the record player in the car, I came back in and got a T.V. that was sitting in the kitchen. The T.V. was sitting on a table just to the right of the door when I walked into the kitchen the T.V. was a little white T.V. with black trim around it and it's a color T.V. When I first went into the bedroom with Ricky, I found a .22 new rifle in a box. This gun was in a cabinet in the bedroom and there were also some shells with it. I loaded the gun and gave it to Ricky. When I was outside putting the T.V. in the car, I heard a gunshot and when I got back in the bedroom, the old lady was shot and she was laying on the bed. At the time I told Ricky, let's get out of here. Again when I first went in the house, I saw an antique type radio in the bedroom and I unplugged it and sat it in the kitchen table. Just as we were leaving the house the last time, I grabbed the radio and took it. Ricky never said why he shot the lady and I never asked. The old lady in the house looked very old and I think she was wearing a long flowered type dress. Early, while Ricky and I were in the house, Ricky asked me what we were going to do with the old lady and I told him, just leave her because she couldn't identify us. After we left the house, we drove to Perry's Lounge at 9th and Exchange in East St. Louis. I believe we sold the T.V. set there for about Eighty Dollars. After we left Perry's Lounge, we drove up to the pay bridge and we drove halfway across and then Ricky threw the .22 rifle into the river. The lawn mower and radio I kept at my house and I'm not sure where the record player went to. I understand that I have the right to talk with a lawyer and have him here. But I want to turn State's evidence and get exactly, get everything off my mind."

Defendant called as witnesses Dennis Kuba and Gerald Johnson, two special agents with the Illinois Division of Criminal Investigation. They testified that Lawrence and Harris, two men with whom defendant shared a cellblock, were convicted of other crimes to which defendant confessed. (The theory of the defense was that defendant merely heard about the Mueller, Biebel and Sepmeyer murders from his cellmates and, for some reason, confessed to being one of the perpetrators). Kuba also testified that Lawrence and Harris were not in custody on the date the Biebel and Mueller murders were committed. On cross-examination, Kuba stated that Lawrence and Harris were in custody at the time of the Sepmeyer murder.

The final defense witness, a friend of defendant, identified the lawn mower and radio taken from the Sepmeyer home. He stated that, while he was at defendant's home, defendant bought these items from his cousin. On cross-examination, the witness testified that he could not hear the conversation, but he saw the defendant hand his cousin some money after looking at the items.

The first issue we address is whether the State's use of peremptory challenges to allegedly obtain an all-white jury deprived defendant of his right to a fair and impartial jury. This contention has been resolved adversely to the defendant in Swain v. Alabama (1965), 380 U.S. 202, 13 L.Ed.2d 759, 85 S.Ct. 824. In Swain, the Supreme Court held that, in a particular case, the prosecutor may constitutionally exercise his peremptory challenges to eliminate blacks from the jury. (380 U.S. 202, 223, 13 L.Ed.2d 759, 774, 85 S. Ct, 824, 837; accord, People v. Gaines (1981), 88 Ill.2d 342, 358, cert. denied (1982), 456 U.S. 1001, 73 L.Ed.2d 1295, 102 S.Ct. 2285; Commonwealth v. Henderson (1981), 497 Pa. 23, 438 A.2d 951.) Only a systematic and purposeful exclusion of blacks from the jury, "in case after case," raises a question under the fourteenth amendment. (Swain v. Alabama (1965), 380 U.S. 202, 223, 13 L.Ed.2d 759, 774, 85 S.Ct. 824, 837.) Defendant has the burden of producing some evidence establishing a systematic exclusion (People v. Powell (1973), 53 Ill.2d 465, 477-78), and he has not met that burden here.

The evidence indicates that three prospective black jurors were peremptorily challenged by the State. The record does not reveal the number of black jurors called for service. Nor is there evidence that the jurors were necessarily excluded because of their race. In objecting to the jury panel, defense counsel merely stated: "I believe the number of the jurors which were black were excused by the State." Defendant's post-trial motion for a new trial simply alleged that three black jurors were peremptorily challenged by the State.

We recognize that at least two States, California and Massachusetts, have rejected the Swain holding. These courts> have concluded that if defendant makes a prima facie showing that veniremen were excluded because of race, the prosecution has the burden to prove the exclusion was based on other grounds. (Commonwealth v. Soares (1979), 377 Mass. 461, 387 N.E.2d 499, cert. denied (1979), 444 U.S. 881, 62 L.Ed.2d 110, 100 S.Ct. 170; People v. Wheeler (1978), 22 Cal.3d 258, 583 P.2d 748, 148 Cal.Rptr. 890.) However, we are not disposed to depart from the principle enunciated in Swain. "Peremptory challenges, historically and by definition, are arbitrary and perhaps even irrational challenges to the seating of a juror. They are totally subjective and not subject to scrutiny or examination. * * * [T]he Court in Swain pointed out that to entertain objections of the nature raised in this case would be to destroy the peremptory nature of the challenge * * *." Commonwealth v. Henderson (1981), 497 Pa. 23, 29-30, 438 A.2d 951, 954.

Defendant further contends that he was denied a fair trial when the prosecutor, over a defense objection, allegedly questioned prospective jurors about their willingness to follow the law of accountability. It is clear that during voir dire "[q]uestions shall not directly or indirectly concern matters of law or instructions." (73 Ill.2d R. 234.) Two of the jurors who were ultimately selected were asked the following question:

"Mr. Kuehn [State's Attorney]: Now, there's going to be — there's going to be evidence involved in this case of a co-defendant, another defendant apart from this defendant. Some of the evidence will pertain to that co-defendant and how it relates to this defendant's case, and evidence that runs to this defendant. The law in certain instances would provide that a person would be held responsible for the acts of a co-defendant, a cohort in crime.

* * * The Court will instruct you about this, this aspect of the law, that a person can be held accountable and responsible for the acts of another. Would it affect your ability in deciding this case on the issue or the charge of murder provided that the law states that the defendant could be held accountable under the facts that the defendant, this defendant before you, did not do the direct act, did not pull the trigger of the gun so to speak, that caused the death of the individual. Do you think that would affect your ability to decide or could you follow that law?"

The prosecutor did not instruct the jury as to the applicable law. Rather, he merely inquired as to whether the jurors could follow the law even if the evidence revealed that the defendant did not actually do the shooting. We do not agree that the quoted comment improperly concerned the law of accountability.

Defendant next contends that exclusion of veniremen for cause, pursuant to Witherspoon v. Illinois (1968), 391 U.S. 510, 20 L.Ed.2d 776, 88 S.Ct. 1770, improperly results in a conviction-prone jury. We have consistently held to the contrary (e.g., People v. Lewis (1981), 88 Ill.2d 129, 147, cert. denied (1982), 456 U.S. 1011, 73 L.Ed.2d 1308, 102 S.Ct. 2307), and recently affirmed our prior holdings. People v. Tiller (1982), 94 Ill.2d 303; People v. Free (1983), 94 Ill.2d 378.

Defendant's final assignment of error with respect to the voir dire concerns the trial judge's refusal to excuse a juror for cause. Defense counsel, in his opening remarks, informed the jury that defendant had been in jail with two men who were convicted of attempted murder in connection with the robbery of a gas station. He further indicated that certain tests revealed that the gun used in the robbery had also been used in a murder at the Mexico City Cafe, and may have been the weapon used to kill Frieda Mueller.

After Jean Biebel Moore testified, the court recessed. During this recess, a juror, Mr. Lewis, informed the court that a friend of his was related to someone who was murdered during the Mexico City Cafe incident. The judge asked Mr. Lewis if that incident would affect his decision in the case, and he responded:

"Well, the only thing I can say there is that at the time, like I say, this individual and I became close friends * * *. He was pretty bitter about the incident because he would have been there had he stopped, he apparently decided to go home that night. I would like to say, no, that I can keep an open mind on it, but I don't know at this time. But I do know that he was very bitter at the time."

He further stated, in response to an inquiry by defense counsel, that any decision he made would not result in embarrassment to him because of his friendship. When asked if he could put the incident completely out of his mind and arrive at a fair verdict, Mr. Lewis replied:

"I don't think I could ever put it totally out of my mind because it was somebody near to me and I'm not used to this type of situation. But I think for this case, since it is a separate case, I think I could look at this case — the only reason I brought it up is because it was made mention and I do recall the incident."

He also indicated that he was not personally acquainted with the victim. Following this exchange, defense counsel requested that Mr. Lewis be excluded from the jury and replaced by one of the alternate jurors. The court denied this request.

It cannot be said that the judge erred in permitting Mr. Lewis to serve as a juror. The trial judge is in a superior position to observe the venireman's demeanor. (Cf. People v. Gaines (1981), 88 Ill.2d 342, 357 (trial judge is in a superior position to determine a venireman's attitude toward the death penalty).) Although initially equivocal and hesitant, Mr. Lewis' final response indicated that he could view defendant's trial as a "separate case." The fact that he could never put the incident completely out of his mind does not reflect on his impartiality with respect to this trial. See People v. Szabo (1983), 94 Ill.2d 327 (prospective juror should not have been excluded, pursuant to Witherspoon, because of equivocal and tentative statements concerning her ability to impose the death penalty).

Defendant further alleges as error the prosecutor's reference, in his rebuttal closing argument, to the Mueller and Sepmeyer murders. In closing argument, defendant frequently insinuated that the police officers fabricated the confessions attributed to defendant, that they committed perjury, and that defendant was innocent. In rebuttal, the prosecutor basically stated that he was not prosecuting defendant because he was innocent, or because he was an "altar boy." The prosecutor then stated:

"Mr. Kuehn: Why do we [the State and police officers] want [the defendant]? Because there are only three rural killings of old people, defenseless old decrepit, aged people, in 1979, and the last one was Sepmeyer, and he details them all, and he's a good friend of Ricky Holman, and they were out killing. That's why we want him."

Defendant objected to this comment. He does not argue in this court that the "other crimes" evidence was improperly admitted, but rather that it was argued for an improper purpose. He contends that the prosecutor's comment indicated that defendant should be found guilty of the Biebel murder because he was involved in two other murders. The State urges that, considering the comment in its context, the statement merely refers to defendant's knowledge and modus operandi.

Even if we were to agree with defendant, still, there would be no reversible error. The comment was "not so inherently prejudicial that no instruction could have corrected the situation." (People v. Lewis (1981), 88 Ill.2d 129, 149.) Here, the trial judge carefully instructed the jury that the evidence pertaining to the Mueller and Sepmeyer murders had "been received solely on the issue of the defendant's design and knowledge" and was to be considered only for that limited purpose.

Defendant has filed a pro se brief raising numerous issues concerning the guilt phase of the proceedings. We will address those contentions which were not raised by defense counsel. Defendant asserts that his right to a speedy trial was violated and cites sections 103-5(a) and (b) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1977, ch. 38, pars. 103-5(a), (b)). These provisions state that a defendant must be brought to trial within 120 days from the date he was taken into custody, or, if defendant is not in custody, within 160 days from the date he demands trial. Neither of these subparagraphs are applicable in the instant case since they involve situations in which a person is charged with a single offense. The relevant statutory provision is section 103-5(e), which states in part:

"If a person is simultaneously in custody upon more than one charge pending against him in the same county, or simultaneously demands trial upon more than one charge pending against him in the same county, he shall be tried, or adjudged guilty after waiver of trial, upon at least one such charge before expiration relative to any of such pending charges of the period prescribed by sub-paragraphs (a) and (b) of this Section. Such person shall be tried upon all of the remaining charges thus pending within 160 days from the date on which judgment relative to the first charge thus prosecuted is rendered pursuant to Section 118-1 of this Act or, if such trial upon such first charge is terminated without judgment and there is no subsequent trial of * * * such first charge within a reasonable time, the person shall be tried upon all of the remaining charges thus pending within 160 days from the date on which such trial is terminated; if either such period of 160 days expires without the commencement of trial of * * * any of such remaining charges thus pending, such charge or charges shall be dismissed and barred for want of prosecution unless delay is occasioned by the defendant * * *." Ill. Rev. Stat. 1977, ch. 38, par. 103-5(e).

The relevant records have not been supplied to us in this proceeding. In order to resolve this issue, we will examine the records in defendant's other murder trials from the pleadings, pertaining to such cases, contained in the record before us.

The defendant was taken into custody on August 30, 1979, on one of the three pending murder charges. He conceded, during the pretrial hearing, that he was brought to trial on the initial murder charge within the prescribed time period. He was found guilty, but on either February 2 or 4, 1980, the trial judge granted defendant a new trial. Following a substitution of judges, the retrial began on March 24, 1980, and resulted again in a guilty verdict rendered on March 27. Post-trial motions were denied on May 2, 1980, and defendant was apparently sentenced on that date.

On March 10, 1980, prior to the retrial on the first charge, defendant was tried on the second murder charge. He was convicted on March 11, and sentenced on April 25, 1980. His trial on the instant charge was scheduled to commence on August 25, 1980. However, on August 22, defendant moved for a change of venue, which motion was granted. The trial judge scheduled trial for October 20, 1980, in a different county. On September 19, defendant withdrew his motion for a change of venue, and the trial was rescheduled in St. Clair County for the week of October 14, 1980. Numerous pretrial motions were filed by defendant and argued on October 10 through 16. The jury was selected on October 20, after which the trial began.

As quoted above, section 103-5(e) states that a defendant "shall be tried upon all of the remaining charges thus pending within 160 days from the date on which judgment relative to the first charge thus prosecuted is rendered pursuant to Section 118-1 of this Act." (Emphasis added.) Although section 118-1 has been repealed (in a manner that has no bearing on the disposition of this issue) "judgment" is defined in section 102-14 of the Code of Criminal Procedure of 1963 as "an adjudication by the court that the defendant is guilty or not guilty and if the adjudication is that the defendant is guilty it includes the sentence pronounced by the court." (Ill. Rev. Stat. 1977, ch. 38, par. 102-14.) The term "judgment," as used in section 103-5(e), refers to the date upon which defendant was first sentenced, and not the date upon which he was granted a new trial. See also People v. Allen (1978), 71 Ill.2d 378, 381; People v. Martin (1976), 44 Ill. App.3d 207, 208; People v. Ike (1973), 10 Ill. App.3d 933, 934.

The first trial ended in a new trial, and therefore there was no judgment. Consequently, defendant received his first sentence on April 25, 1980. The State had 160 days from that date in which to try defendant for the instant offense. Defendant's August 22 motion for a change of venue was clearly a delay occasioned by defendant and operated to toll the statute. (See Ill. Rev. Stat. 1977, ch. 38, par. 103-5(f).) On that date, 119 days had lapsed since April 25. The statute commenced running again, at the earliest, on September 19, when defendant withdrew his motion for change of venue. It was later tolled from October 10 through 16, when defendant's pretrial motions were argued. Four more days lapsed from October 16 until the trial commenced. According to our calculation, the limitations period had run for 144 days. This is within the 160-day limit prescribed by the statute.

At the pretrial hearing, defendant also alleged that he was not retried on the first murder charge within a reasonable time, as required by section 103-5(e). Although there was approximately a seven-week delay between trials, we agree with the trial judge that this was not unreasonable in view of the circumstances. Defendant had at least three murder charges pending and was tried on one such charge prior to his retrial. This is not, therefore, a situation in which the State "sat" on defendant's case without attempting to pursue any prosecution. For these reasons, we find that defendant's right to a speedy trial was not violated.

Defendant further contends that the indictment was insufficient because it charged him with murder when he was only guilty of home invasion or burglary. Clearly, the prosecutor has discretion to determine the offenses with which a person shall be charged, and here the indictment was sufficient upon which to predicate a murder conviction.

Prior to trial, defendant moved for a substitution of judge on the grounds that this same judge presided over an unrelated murder trial of Holman. This motion was denied. After the jury returned a verdict imposing the death penalty, defense counsel inquired as to whether the judge could set aside the jury's verdict. The judge indicated that he need not determine whether he could substitute his judgment for that of the jury and stated: "* * * Mr. Davis is a no-good, cold-blooded killer that doesn't deserve to live." Defendant contends that this post-trial statement proves that the judge had been prejudiced against him, and therefore his pretrial motion for a substitution of judge should have been granted.

Without commenting on the propriety of this statement, it does not indicate that the judge was predisposed against the defendant during trial. Our review of the record does not disclose any instances of inappropriate judicial behavior, or intentional unfair treatment of the defendant. Consequently, there was no error in disallowing a substitution of judge.

It is also contended that defendant's statements should have been suppressed because they were involuntary, and his right to counsel was violated. We disagree. Defendant's initial contact with Sergeant Lay, to whom he confessed regarding a number of crimes, was initiated by defendant himself. The evidence shows that defendant was advised of his Miranda rights, including the right to counsel, and he signed forms indicating that he understood them. Although, at a pretrial hearing, defendant testified that the police and certain inmates threatened and coerced him into confessing, there is no corroborating evidence to support this claim. Clearly, a question of credibility was involved, and the trial judge was not required to believe defendant's version of events.

Nor was the court required to assume the confessions were involuntary because defendant was questioned from 10 p.m. on September 9, until 4 a.m. the following morning. Although defendant gave a written statement at 4 a.m., he indicated a willingness to discuss the crimes from the moment he met, at his own request, with Sergeant Lay. Indeed, as soon as the interview began, he handed Lay a list of crimes in which he claimed involvement. It has been held that "[t]he finding of the trial court on the voluntariness of a confession will not be disturbed unless it can be said that it is contrary to the manifest weight of the evidence." (People v. Brownell (1980), 79 Ill.2d 508, 521, appeal dismissed (1980), 449 U.S. 811, 66 L.Ed.2d 14, 101 S.Ct. 59, citing People v. Aldridge (1980), 79 Ill.2d 87; People v. Medina (1978), 71 Ill.2d 254, 258.) There was sufficient evidence from which the judge could conclude the defendant voluntarily, in all respects, gave the inculpatory statements. The judge, therefore, did not err by allowing the statements into evidence.

Defendant argues that his fourth amendment rights were violated when police officers executed a search of his home beyond the scope of the warrant. Evidence at the pretrial hearing disclosed that a search warrant was issued, authorizing the officers to seize a color television set from a front room in defendant's home. Probable cause for issuance of the warrant was based on statements given by Ricky Holman. The officers did not find the television set, but they did seize a gold watch and knife. Defendant's motion to suppress these items as evidence was granted.

While in the home pursuant to the search warrant (which defendant does not contend was improperly issued), an officer noticed a replica antique radio, a lawnmower and a stereo turntable. It subsequently became known that items similar to those found in defendant's home were reported stolen from the Sepmeyer residence. A new search warrant was issued, authorizing a seizure of those items. Defendant claims that this seizure was improper because the officer's search should have been restricted to the room in which the television set was located.

If the items taken from the Sepmeyer residence were seized at the time they were discovered, the trial judge may well have suppressed this evidence, as he suppressed the watch and knife. However, they were not recovered by the police at that time; they were simply observed during the course of an authorized search. We therefore cannot say that the seizure of the items was invalid. In a related contention, defendant challenges the validity of the seizure on the grounds that he did not consent to the search. However, the search was conducted pursuant to a warrant, and his consent is therefore unnecessary. The case upon which defendant relies, People v. Rinaldo (1980), 80 Ill. App.3d 433, is inapposite because it involved a warrantless search.

It is further asserted that certain police officers and the State's Attorney conspired to violate defendant's rights, and that the State's Attorney intimidated Mitchell into lying about the defendant in order to obtain a conviction. These conclusional allegations are not supported by the record and are without merit.

Defendant also contends that Mr. Kuehn or the police officers lied about his role in the Biebel murder in order to obtain the $5,000 reward which was offered by the victim's daughter. Although such a reward was offered, there is no evidence from which an inference of misconduct can be derived. Also without merit is defendant's argument that Mitchell should have been arrested as an accessory to the crime. Whether or not the State chooses to prosecute Mitchell is irrelevant to the disposition of defendant's case.

Defendant makes a conclusional statement that he was prejudiced by the introduction into evidence of the murder victim's pictures, the shotgun taken from his home, and the "testimony." He offers no support for the allegation and our review reveals none.

Finally, defendant contends that a verdict should have been directed in his favor at the close of the State's case, and that the evidence was insufficient to support a conviction. The evidence, if believed by the jury, establishes that defendant contacted Mitchell concerning the purchase of a gun, which was delivered by Holman. The gun was one of the items taken from the deceased's home. Certain items stolen from another victim were recovered from defendant's home. Especially significant is defendant's inculpatory statement, in which he details the circumstances of the murder in such a manner as to clearly indicate that he was present during the commission of the offense. For example, he stated that the door to the Biebel home was unlocked, and the victim's daughter testified that it was left open during the daytime. He knew that the victim was confined to a wheelchair, and corroborated the daughter's testimony with respect to certain items taken. The only evidence presented by the defense does not raise a reasonable doubt as to defendant's guilt.

It is for the trier of fact to determine the weight and sufficiency of the evidence (People v. Akis (1976), 63 Ill.2d 296), and that determination will not be reversed unless the evidence is so improbable as to create a reasonable doubt of defendant's guilt (People v. Yarbrough (1977), 67 Ill.2d 222). From our review of the record, we find the evidence was more than sufficient to support a murder conviction. It follows that the judge did not err in denying defendant's motion for a directed verdict.

Having determined that no reversible error occurred during the guilt phase of defendant's trial, we next consider allegations of error at the sentencing proceeding. Defendant raises a number of contentions concerning the constitutionality of the death penalty statute which have been resolved. This court has determined that the statute is not incompatible with article I, section 11, of the Illinois Constitution (People v. Szabo (1983), 94 Ill.2d 327; People v. Gaines (1981), 88 Ill.2d 342); that the statutory grant of discretion and authority to the prosecutor is proper (People v. Szabo (1983), 94 Ill.2d 327; People v. Brownell (1980), 79 Ill.2d 508; People ex rel. Carey v. Cousins (1979), 77 Ill.2d 531, cert. denied (1980), 445 U.S. 953, 63 L.Ed.2d 788, 100 S.Ct. 1603); that the State need not prove, beyond a reasonable doubt, that there are no mitigating factors sufficient to preclude imposition of the death penalty (People v. Free (1983), 94 Ill.2d 378; see also People v. Brownell (1980), 79 Ill.2d 508); and that the statute provides for adequate review to insure that sentences are not arbitrarily imposed. People v. Kubat (1983), 94 Ill.2d 437; People v. Szabo (1983), 94 Ill.2d 327; People v. Brownell (1980), 79 Ill.2d 508.

Defendant next argues that the indictment was insufficient to support a death sentence because it failed to allege a statutory aggravating factor. In People v. Brownell (1980), 79 Ill.2d 508, 524, it was held that "[a]n indictment's allegations must be set out with such specificity or particularity that the accused is informed of the offense with which he is charged and enabled to prepare his defense and, further, that he is protected against being later prosecuted for the same crime."

Defendant, charged with one count of murder, does not assert that the necessary elements of that crime were insufficiently alleged in the indictment. Since "there is only one offense of murder in Illinois; [and thus] no distinction is made between capital and non-capital murder" (People v. Brownell (1980), 79 Ill.2d 508, 524; People v. Kubat (1983), 94 Ill.2d 437), defendant, when properly charged, is protected from being twice prosecuted for the same crime. The aggravating factors are not necessary elements of the offense, and are relevant only to a determination of the appropriate punishment. Therefore, the real question concerns defendant's knowledge that the death penalty would be sought, and his ability to adequately prepare a defense. Had the State set forth in the indictment the aggravating factors upon which it would rely, notice would not be an issue. We therefore believe this procedure to be preferable.

When defendant raised this issue during the trial, the State responded:

"MR. STURGEON [Assistant State's Attorney]: For the record, I would indicate that in response to a court order, an order of the Court, for a bill of particulars, the defendant prior to the commencement of this trial was advised of what the aggravating factors would be and what [sic] we would be seeking the death penalty, and so they would be apprised of it, which is the basis for what they are asking for, so I don't see any ...


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