Appeal from the Circuit Court of Du Page County; the Hon.
Robert A. Nolan, Judge, presiding.
JUSTICE NASH DELIVERED THE OPINION OF THE COURT:
Rehearing denied July 20, 1984.
After trial by jury defendant, John Shiflet, was convicted of the murder of his wife, Rose Shiflet (Ill. Rev. Stat. 1979, ch. 38, par. 9-1(a)(1)) and was sentenced to imprisonment for his natural life.
He appeals, contending that the trial court erred: (1) by failing to exclude evidence seized pursuant to a search warrant obtained in violation of defendant's attorney-client privilege; (2) by denying defendant an evidentiary hearing of his assertion that the complaints for two earlier search warrants under which evidence was seized contained false statements; (3) by the admission in evidence of a statement by defendant which the State had failed to disclose prior to trial; (4) by the admission of evidence relating to the victim's blood for lack of foundation and proof of chain of custody; (5) by admission of certain building records without adequate foundation; and (6) by denying defendant due process and equal protection of the law in imposing a sentence of natural life imprisonment.
Rose Shiflet was reported missing by her husband, defendant herein, on the evening of September 30, 1980, and her body was discovered early the next morning in an unincorporated area near Naperville about three miles from the apartment she had shared with defendant in Lisle. She was wearing a shirt and jeans and was bare-foot; an investigator noted her hands and feet were very clean, there were blood stains on the shirt and a black tar-like substance on the jeans. He then went to the Shiflet apartment complex, where he found a blood-spotted leaf lying next to an automobile identified as belonging to the victim and blood spots on the rear portion of the car and also on the steps leading to the Shiflet apartment.
Officers had a conversation with defendant later that morning when they asked him to relate the events of the previous evening. Defendant stated that when she arrived home from work about 4:45 p.m., his wife was upset over an argument with her father and a kidney infection. They talked for over an hour and he advised her to seek professional help, which she rejected. At about 8 p.m., while they were watching a television movie, he stated she became emotional and threw a glass of iced tea on the floor, saying, "I`ve got to get out of here"; she then left the apartment. When Rose didn't return, defendant stated he drove around looking for her, then called her sister and brought her to the apartment where decedent's mother later joined them. Defendant stated he called the sheriff's office at 11:30 p.m. to report his wife missing and did so again at 5 a.m., when an officer was dispatched to take a missing person report.
Joan Alleva, decedent's mother, testified defendant called her between 7:30 and 8 a.m. on September 30 and requested that she not call her daughter that evening, as was her custom, because defendant wished to have a serious discussion with Rose without interruption. Defendant also called decedent's sister, Lynda Alleva, at 4:45 that afternoon with the same request.
Lynda Alleva testified she had also received a call from defendant at 10 p.m. on September 30, advising her Rose had been missing since leaving the apartment at 8 o'clock. Lynda told defendant she was coming over, and he at first refused to let her come, but then agreed to pick her up. Defendant arrived at Lynda's home, a 20-minute drive, at 11:10 p.m., saying he had been searching for Rose. On the trip back to defendant's apartment, he told her that Rose had become upset and, after throwing tea on the floor, left, saying she was going to a store for ice cream and would return later. When they arrived at the apartment, defendant went into the bathroom where he remained for quite a while and Lynda could hear water running. When he came out defendant had changed his pants and he then pointed out a wet area on the rug where he said the tea had been spilled.
Joan Alleva came over later and, after calling the hospitals, she and Lynda decided to walk around looking while defendant remained in the apartment by the telephone. As they left the apartment, defendant advised them to be careful on the stairs as he had slipped and scratched his knuckles on the brick wall. He also told them the scratches and gouges on his arms they had observed were caused when he looked in bramble bushes for Rose.
After walking about the complex for 10 minutes the women returned for the car and found defendant at the rear of it with the trunk open; he then closed the trunk and they all went into the apartment. The women noticed Rose's glasses on a bookcase and were disturbed because she could not see well without them, especially at night. At about 5 a.m. the police were called again, and at 9 a.m. they were informed Rose's body had been found. That evening Joan Alleva saw Rose's body at a funeral home and noticed her fingernails had been cut very short, although she had always worn them long.
Dennis Varhol, the Shiflet's next door neighbor, testified he heard whimpering and hitting noises from the Shiflet's apartment at approximately 8:30 p.m. on September 30 which lasted for several minutes.
An autopsy of decedent's body disclosed a large wound on top of the head which penetrated to the skull. The physician testified such a wound bleeds profusely and as the victim's hair was not contaminated by blood, he concluded it had been washed. The doctor also noticed small scratches on the neck and hemorrhages of the skin of the face and neck. He expressed the opinion the victim died from loss of blood and that at least one-half of the blood volume was absent. The doctor also noted evidence of strangulation, but could not say it contributed to the death. The doctor was unable to take fingernail scrapings from the victim as the nails had been clipped too short, but did remove a tar-like substance from her body and drew two blood samples, one of which he gave to Thomas Duhig, a sheriff's evidence technician who was present at the autopsy.
At about noon on October 1, defendant attempted to remove his wife's car from its parking place near the apartment. When an officer stopped him, defendant stated he was taking it on his attorney's advice, but was not permitted to do so. At 2:30 p.m. that day a vacant apartment below defendant's was searched by officers, who found blood and matted hair in a closet and traces of blood on the bathroom fixtures. On October 1, search warrant No. 3218 was issued by the circuit court authorizing a search of defendant's apartment which was conducted at 5:45 p.m.; a pair of blue jeans and a shirt were seized. The pants were damp, and benzidine tests conducted on stained areas were positive for the presence of blood. On October 2, search warrant No. 3215 was issued authorizing a search of Rose Shiflet's 1980 Chevrolet automobile. Positive test results for the presence of blood were obtained on several items including the trunk carpeting, plastic molding on the interior of the trunk, a tarp and on the handle of an ax. The officers also noted that the rubber molding around the lid had torn away and a tar-like substance was there seen which was similar to the substance found on Rose Shiflet's foot and hand.
At 8:30 p.m. on October 3, 1980, search warrant No. 3219 was issued authorizing a second search of defendant's apartment. On examining the living room carpet the officers noted that a section of it was stiff and cut the carpeting out at that spot, finding blood stains on the padding and flooring below. In addition, the officers seized a hair dryer bearing a blood stain, a vacuum cleaner bag and its contents, nail clippers, a towel, and a hammer to which human hair similar to the victim's had adhered. The evidence seized in the search was submitted to the Du Page County crime laboratory, the director of which testified in trial to having performed tests which determined that one of the hairs on the hammer was human, the ends crushed and it compared with that of decedent, although he could not say conclusively that the hairs were identical. Tests conducted on the hammer disclosed positive results for blood, and he determined that type A human blood was present on Rose Shiflet's shirt, the samples taken from the trunk of her automobile, the blood-spotted leaf found next to the car, the wallboard taken from the closet of the lower, vacant apartment, the blue jeans found in the bedroom of defendant's apartment, and on the padding and flooring from that apartment. He was unable to type the blood found on the carpeting although he determined it was human. He further testified that the tar-like substance removed from the victim's hand and foot were essentially the same in chemical composition as the sample removed from the rear of her automobile. This witness further testified that he had received a blood sample taken from the victim and determined that it was type A. He also discovered a nail clipping caught in the fibers of the carpeting removed from defendant's apartment and further clippings in the vacuum cleaner bag.
• 1 Defendant contends first that the evidence seized from his apartment pursuant to search warrant No. 3219 should have been suppressed pursuant to his motion, as the complaint and affidavit for search warrant were premised upon privileged information in violation of his attorney-client privilege.
At the hearing of the defendant's motion to suppress, evidence was presented that at 1 p.m. on October 1, 1980, defendant met with attorney Charles Kaeding, to whom he had been referred for possible representation on a murder charge, although none had yet been filed. They discussed the ongoing investigation into the death of Rose Shiflet, and attorney Kaeding agreed to defend in the event charges were placed against defendant. Attorney Kaeding then brought into his office an investigator, John Ylisela, and instructed defendant that Ylisela would discuss the matter with him in greater detail and he should answer his questions and cooperate with him. Defendant did so.
Paul Dugan, a deputy sheriff, testified at the hearing that John Ylisela called him at the sheriff's office on the evening of October 1 and, after inquiring whether Dugan was working on a murder investigation in which the victim's name was Rose, Ylisela asked to meet with him. Dugan had known Ylisela for several years and they had been fellow police officers; Dugan believed Ylisela was now working as an investigator for an insurance company. When they met a few minutes later at about 8 p.m. in a parking lot, Ylisela told Dugan that defendant had killed his wife and gave a detailed account of how he had done so and disposed of her body. Ylisela related that while watching a loud movie on television, defendant struck Rose on the head with a hammer with a new handle; she fell to the floor but was not dead so he choked her. She scratched him repeatedly on his arms and upper body. Defendant placed a plastic bag over her head and clipped her fingernails, then cleaned up the carpet with soap and water, drying it with a hair dryer. He placed the body in the trunk of her car, then called the police to advise his wife was missing. Thereafter, defendant drove into the country and dumped the body near the road. When defendant returned to the apartment, he called his wife's family and brought one of them to the apartment. While she was there he noticed blood on his pants and cleaned them in the sink. Dugan inquired as to the source of Ylisela's information and was told he did not want to know. Ylisela also said he would deny having met with Dugan or telling him anything.
Dugan returned to the police station and prepared a report containing the information received by Ylisela, noting the source as an unnamed informant. Dugan's superiors did not accept that, and he rewrote the report naming John Ylisela as the source, describing him as a citizen who was not a paid informant.
John Ylisela testified at the suppression hearing that he was a private investigator with an office in Wheaton which he rented from attorney Charles Kaeding. He interviewed defendant on October 1 at attorney Kaeding's direction and gave Kaeding a synopsis of the interview. He and Kaeding also discussed whether defendant's arrest was imminent and who Ylisela might question about the matter. Ylisela then called Officer Dugan and arranged to meet him; they had been acquainted since 1973 when both were police officers. Ylisela had seen Dugan twice in 1980 and had then advised him he was employed as a private investigator for Hargraves Secret Service. When Ylisela met with Dugan that night, they exchanged information about the case with Ylisela providing Dugan with details regarding the homicide in response to questions. Ylisela advised Dugan he would not reveal his source, and they agreed neither would discuss the fact of the meeting as it would put Ylisela's position in jeopardy. On the following day, Ylisela was called to the sheriff's office and Sergeant George Weihofen asked whether he had given any information to any member of the department; he denied that he had done so.
Sergeant Weihofen testified he headed the investigation of Rose Shiflet's death and had been advised by Officer Dugan that Charles Kaeding was defendant's attorney; he believed Dugan learned that on October 1 when Dugan saw Kaeding at defendant's apartment. Weihofen later learned Ylisela shared office space with Kaeding.
The defendant testified to the fact of his conversations with attorney Kaeding and John Ylisela on October 1 and stated he did not authorize Ylisela to talk to anyone other than defendant's attorney.
The record also discloses that on October 3, Officer Paul Dugan presented a complaint for search warrant, supported by his affidavit, to a judge who issued warrant No. 3219 authorizing the second search of defendant's apartment and the seizure of "blood stains, fingernail clippings, hammer with a new handle." The search warrant was executed that day and, as earlier noted, evidence of blood was seized together with fingernail clippings and a hammer with a new handle, all of which were introduced at defendant's trial.
The complaint and affidavit initially stated that Detective Dugan had been contacted by and met with John Ylisela on October 1, 1980. It then repeated the detailed information given to Dugan by Ylisela relating to the killing of defendant's wife as earlier noted, identifying Ylisela as an ordinary citizen who is not a paid police informant.
The next paragraphs of the complaint stated "that independently of this above-mentioned conversation with John Ylisela, your affiant, being assigned the investigation of this homicide is informed as follows." There followed a recitation of purported facts known to the affiant through his personal observation and the investigative efforts of other officers, in which the affidavit stated, inter alia:
That decedent's body was discovered at 7:50 a.m. by a jogger and reported to the sheriff's office, that affiant went to the scene and viewed it; that John Shiflet identified the deceased as his wife; that on September 30, 1980, between 7 p.m. and 10 p.m., a television program dealing with the execution of Jews in Nazi Germany was aired, affiant gaining this information from WBBM TV, Channel 2 in Chicago; that decedent's head bore a wound consistent with being struck with a hammer, as observed by affiant and by discussion with the physician who performed the autopsy; that a hammer with a new handle was observed in the decedent's apartment by other officers who so advised affiant; that wounds on decedent's throat were consistent with strangulation; that Joan Alleva reported to officers that John Shiflet had scratches on his arms on the night of October 1, 1980; that no blood or wet spots were seen on the carpet by officers executing a search warrant on October 1, 1980; that decedent's fingernails were cut short and fingers cleaned, as observed by the autopsy physician, and decedent's mother noted the nails were extremely short and poorly clipped although they had been long and well groomed; that blood was observed by affiant on the staircase of decedent's apartment on October 1, and also on rocks near the building and decedent's car; that her car had blood in the trunk; that John Shiflet reported to the sheriff's office his wife had been missing since 8 p.m. on October 1; that decedent's purse was found by a truck driver, who reported it to affiant, and her shoe was found by the side of the road; that no plastic bag containing blood has been recovered; that on execution of a prior search warrant No. 3218 on October 1, damp blue jeans containing blood were located in John Shiflet's closet; that decedent's mother observed defendant's knuckles were cut and bruised on October 2.
The complaint and affidavit concluded by reciting that on the morning of October 3, 1980, affiant was told by Assistant State's Attorney Thomas Knight that he had just received a telephone call from attorney Al Botti, who told him no one should question John Ylisela about anything he may have learned from Botti's client, Shiflet, as it was protected by the attorney-client privilege because Ylisela was working for Shiflet's attorney.
In denying defendant's motion to suppress, the trial court found there had been no invasion of defendant's attorney-client privilege by the State as the information given to the police by the investigator for defendant's counsel had not been affirmatively sought out by the police. The trial court also found that there was a sufficient factual basis to support issuance of search warrant No. 3219, but did ...