Appeal from the Circuit Court of Winnebago County, the Hon.
John E. Sype, Judge, presiding.
JUSTICE WARD DELIVERED THE OPINION OF THE COURT:
Rehearing denied February 1, 1985.
The defendant, Raymond Lee Stewart, was indicted in the circuit court of Winnebago County, for the murder of Kevin Kaiser, a Rockford gas station attendant. The first count alleged that the defendant committed murder with intent to kill or do great bodily harm to the victim. (Ill. Rev. Stat. 1981, ch. 38, par. 9-1(a)(1).) The second count alleged that the murder was committed during the course of the defendant's armed robbery of Kaiser at the gas station. (Ill. Rev. Stat. 1981, ch. 38, par. 9-1(a)(3).) Following a jury trial, he was convicted of murder on both counts. A hearing in aggravation and mitigation was had before the same jury, and the defendant was sentenced to death. The defendant appealed directly to this court pursuant to our Rule 603 (87 Ill.2d R. 603).
The evidence showed that on the morning of January 28, 1981, the defendant shot Kevin Kaiser four or five times in the course of an armed robbery, killing him. The defendant does not challenge the sufficiency of the evidence to show that he killed Kaiser. A witness testified having seen a man who closely resembled the defendant at the scene of the murder. The witness identified a tan, three-quarter-length coat recovered from the defendant's Buick automobile as the one worn by the man he had seen at the gas station. Human blood stains and gunshot primer residue were found on both sleeves of the coat. The defendant admitted at trial that he had been staying, under a fictitious name, at a Rockford motel at the time of the murder. There was unchallenged testimony by a ballistics expert that Kaiser was killed by bullets fired from the gun later found in the defendant's suitcase. The defendant admitted that he had purchased the gun in July of 1980 but said that he had sold the gun a month later to Jimmy Jones, who lived in Rockford. He testified that he has bought the gun back from Jones on February 3, 1981.
A witness, however, who lived in Rockford for 14 years on the block where the defendant said Jones lived testified that he had never heard of Jimmy Jones. The defendant testified that he had not purchased any .38-caliber ammunition in December 1980, but a prosecution witness said that he had sold .38-caliber Smith & Wesson Special ammunition to the defendant on December 5, 1980.
The defendant's fingerprint was found on the door in the gas station where Kaiser was killed. The door had been washed the day before his murder.
Six days after Kaiser's murder the defendant rented a U-Haul trailer in Rockford and attached it to a black and maroon Mercury automobile with Wisconsin license No. SC 4801. The rental contract showed that the trailer was to be rented for one day. On February 6, 1981, the Mercury had broken down in De Kalb, and it, with the U-Haul trailer attached, was towed to a house in Sycamore. (It was later established that the defendant's brother-in-law lived in the house.) Within two days the trailer had been taken away as well as a red-and-white Buick that had been parked in the driveway. Later that month, the defendant arrived at the Greensboro, North Carolina, home of Florence Crosby, his first cousin, driving a red-and-white Buick with a U-Haul trailer attached.
On February 21, 1981, the defendant was arrested outside Crosby's apartment building as he was about to enter the Buick. The arresting officers had a Federal arrest warrant for unlawful flight to avoid prosecution. The basis for the Federal charge was that the defendant had fled from Illinois to avoid prosecution for an armed robbery committed by him in Rockford on November 24, 1980. Following the arrest, Leonard Bogaty, a special agent of the Federal Bureau of Investigation, had a conversation with Crosby and following that went to a bedroom of the apartment where he gathered and took items of property belonging to the defendant. The items, including a radio scanner and a large brown suitcase, were brought to the Greensboro police station. A warrant to search the property taken from the apartment was obtained from a United States magistrate later that day. Bogaty found a loaded .38-caliber revolver in a black leather holster inside the suitcase. A search was also made of the Buick under the same warrant. Special Agent Henry Phillip of the Federal Bureau of Investigation found in it, among other items, a three-quarter-length, tan coat and a copy of the U-Haul trailer-rental contract.
The next day Bogaty went to the residence of Charlie Benton, the defendant's uncle, in Whitsett, North Carolina, which is a short distance from Greensboro. Benton stated that a U-Haul trailer which was sitting in the front yard was placed there by the defendant. The trailer was towed to the Greensboro police station and was searched after a warrant had been obtained. Among the property found in the trailer was a box of .38-caliber ammunition, a plastic ammunition carrier, and the defendant's driver's license.
The defendant first contends that the circuit court erred in denying his pretrial motion to suppress the evidence seized under the authority of the two search warrants. He contends that the affidavits attached to the complaints for the warrants were insufficient to establish probable cause to believe that the items sought under the warrants would be found in the places to be searched.
The complaint for a warrant to search the defendant's Buick and luggage was supported by the affidavit of Special Agent Henry M. Phillips of the Federal Bureau of Investigation. The affidavit related that the defendant was suspected of committing six (sic) homicides (actually seven homicides as later detailed in the affidavit) during the course of four armed robberies over a seven-day period in early 1981; that witnesses had identified the defendant as having been in the areas where the offenses were committed and that his Mercury automobile was seen at the site of one of the incidents; that the bullets removed from the six victims were fired from the same weapon and were either .38-caliber, .357-caliber, or 9-mm projectiles; that a Realistic police scanner and a multi-band scanner had been stolen during one of the armed robberies; that the defendant had fled from Illinois and had gone to North Carolina in a red-and-white Buick; that the defendant had been arrested at and his vehicle was located at an address described as Benton's home in Greensboro (actually Crosby's home); that a search of the home was conducted with consent and that a Realistic police scanner was found among the defendant's property in a bedroom; and that the defendant fit descriptions provided by witnesses of a suspect in the vicinity of the armed robberies. The complaint for a warrant to search the U-Haul trailer was supported by the affidavit of Special Agent Thomas J. Brereton of the Federal Bureau of Investigation and incorporated the Phillips affidavit by reference. The Brereton affidavit provided the following additional information: that the defendant rented a U-Haul trailer on February 4, 1981, in Rockford; that a relative of the defendant observed the trailer being towed by a Buick driven by the defendant in Greensboro; that Benton stated that the defendant left the trailer at his residence in Woodset (sic) and that he, Benton, had observed the defendant's personal property inside the trailer; that the return of the trailer to the U-Haul Corporation was 16 days overdue; and that Benton authorized the Federal Bureau of Investigation to take possession of the trailer. A copy of the U-Haul rental contract was also attached to the Brereton affidavit.
In People v. Gacy (1984), 103 Ill.2d 1, 21, we said:
"In reviewing the sufficiency of the complaint [for a search warrant] we are guided by the Supreme Court's statement in Spinelli v. United States (1969), 393 U.S. 410, 21 L.Ed.2d 637, 89 S.Ct. 584, `that only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause, Beck v. Ohio [(1964), 379 U.S. 89, 96, 13 L.Ed.2d 142, 147-48, 85 S.Ct. 223, 228]; that affidavits of probable cause are tested by much less rigorous standards than those governing the admissibility of evidence at trial, McCray v. Illinois [(1967), 386 U.S. 300, 311, 18 L.Ed.2d 62, 70, 87 S.Ct. 1056, 1062]; that in judging probable cause issuing magistrates are not to be confined by niggardly limitations or by restrictions on the use of their common sense, United States v. Ventresca [(1965), 380 U.S. 102, 108, 13 L.Ed.2d 684, 688, 85 S.Ct. 741, 745]; and that their determination of probable cause should be paid great deference by reviewing courts, Jones v. United States [(1960), 362 U.S. 257, 270-71, 4 L.Ed.2d 697, 708, 80 S.Ct. 725,735-36].' (393 U.S. 410, 419, 21 L.Ed.2d 637, 645, 89 S.Ct. 584, 590-91.)"
A showing of probable cause means that the facts and circumstances within the knowledge of the affiant are sufficient to warrant a person of reasonable caution to believe that an offense has occurred and that evidence of it is at the place to be searched. (People v. Free (1983), 94 Ill.2d 378, 400; People v. Francisco (1970), 44 Ill.2d 373, 376.) It is not contended that there was insufficient evidence to believe that several offenses had been committed. Instead the defendant argues that it was unreasonable to believe that evidence of the crimes would be found 800 miles from the scenes of the incidents and at least 19 days after their commission. Since he had disposed of the Mercury automobile, he says, it is illogical and offends common sense to assume that he would not have disposed of other evidence of the offenses as well. We must reject this argument.
First, the somewhat abstract argument is not impressive. Responding abstractly, we cannot say that a reasonable person would readily ascribe common sense and logical reasoning to one who engaged in a bizarre crime spree as the defendant evidently did. Too, even if a person such as the defendant would have disposed of instruments, such as a car, employed in the commission of the offenses, it is not unreasonable to assume that he would not be as ready to dispose of the property for which he, according to the affidavit, may have killed seven people. As the affidavits stated, the defendant had with him a radio scanner similar to one stolen during one of the armed robberies. (Although the radio scanner had not been positively identified as the one that was stolen, it is not required that a complaint or affidavit for a search warrant show beyond a reasonable doubt that the warrant should be issued. (People v. Free (1983), 94 Ill.2d 378, 400.) A reasonable person might readily assume that a radio scanner found among the defendant's property was the one stolen during one of the armed robberies.) Too, and importantly to this contention, the affiants were aware that the reason that the defendant had abandoned his Mercury automobile was because it was not in an operable condition. "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." (People v. Free (1983), 94 Ill.2d 378, 400.) Even if one assumes a want of particularity in the affidavits, the agents' reasonable and good-faith belief, although a possibly mistaken one, that the searches were authorized under the warrants, insulated the searches from a motion to suppress. United States v. Leon (1984), 468 U.S. ___, 82 L.Ed.2d 677, 104 S.Ct. 3405; United States v. Beck (11th Cir. 1984), 729 F.2d 1329.
"Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants." (United States v. Ventresca (1965), 380 U.S. 102, 109, 13 L.Ed.2d 684, 689, 85 S.Ct. 741, 746.) Read in a common-sense and realistic fashion, the affidavits contained sufficient specificity in light of the totality of the circumstances to justify the issuance of the search warrants. There was a substantial basis for the magistrate's finding of probable cause. (Massachusetts v. Upton (1984), 466 U.S. ___, 80 L.Ed.2d 721, 104 S.Ct. 2085.) We consider that the trial court's denial of the defendant's motion to suppress was not manifestly erroneous. See People v. Garcia (1983), 97 Ill.2d 58, 74; People v. Free (1983), 94 Ill.2d 378, 401.
The defendant relies principally upon United States v. Bailey (9th Cir. 1972), 458 F.2d 408, in arguing that a search far removed in time and distance from the scene of an offense must be more closely scrutinized. The court in Bailey granted a motion to suppress evidence of searches conducted six weeks after the bank robbery concerned and more than 100 miles away from the bank. But the factual circumstances in Bailey are different from those here. In Bailey, there was no indication that the defendant owned the car that was searched or that he had been seen in it before his arrest. Moreover, the police knew that the car had no connection with the robbery because Bailey's co-defendant admitted that she had borrowed the car from a friend about a month after the robbery. The court also suppressed evidence gathered from a search of a house at which the defendants had been seen once, but there was no indication that they were more than casual social guests. The decision in Bailey is in contrast to the same court's holding in Porter v. United States (9th Cir. 1964), 335 F.2d 602. There the court refused to suppress evidence taken in a search of the defendant's auto six weeks after the commission of the offense. The affidavit supporting the warrant was held to be sufficient because, inter alia, it disclosed that the automobile was owned by the defendant, that the evidence sought was not on the defendant's person when he was arrested, and because the auto had an out-of-State license plate. The identification of the defendant as the owner of the auto was said to be evidence of great importance. For these reasons, the court said, and because the defendant had not yet settled in the community, the most likely place to look for the evidence sought was inside his car. Similar to Porter and in contrast with Bailey, the Federal Bureau of Investigation here knew that the Buick was owned by the defendant and that he had been seen in it prior to his arrest. The car had a verified connection with the robberies and homicides; it was, too, the vehicle used to commit the Federal offense for which he was arrested, viz. unlawful flight to North Carolina. The defendant had apparently made at least his temporary residence in his relative's home. (The defendant testified at trial that one reason he had returned to Rockford from North Carolina in January 1981 was "to receive all of my belongings that I was going to take to North Carolina to move there and stay there.") Certainly he was more than a "casual social guest." Because he had brought his belongings from Illinois to North Carolina and because he was not carrying evidence of the offenses on him when arrested, it was not unreasonable to conclude that there was a fair probability that the evidence sought would be found in the car, in the U-Haul trailer, or in his luggage.
The defendant also claims that, even if the search warrants were properly issued, the trial court should have granted the defendant's motion to suppress the evidence seized from Florence Crosby's apartment because, he alleges, it was obtained without consent during a warrantless entry. The Phillips' affidavit stated that the defendant "was residing at 600-C Banner Street, the residence of CHARLIE BENTON, and they [sic] executed a waiver form and advised and showed officers the location of STEWART'S property." At the suppression hearing, Benton testified that he had never lived at 600-C Banner Street and that he was not at that address on the date of the arrest. Florence Crosby, also called by the defendant to testify, stated that she lived in the apartment in front of which the defendant was arrested. Their testimony, the defendant asserts, constituted a prima facie showing that the search of Crosby's home was made without consent.
Section 114-12(b) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 114-12(b)) imposes on the defendant the burden of proving that the search and seizure were unlawful. (See also People v. Berg (1977), 67 Ill.2d 65.) The defendant has not made this showing. The testimony of the defendant's witnesses at the suppression hearing merely showed that the Phillips' affidavit was erroneous as to who lived at 600-C Banner Street. This is immaterial as to the question of whether the search of the apartment was consensual. Florence Crosby was not asked whether she consented to the search of her apartment. Phillips' statement, in his affidavit, that agents had obtained consent to search Crosby's apartment was not effectively rebutted.
We would observe, too, that in reviewing the denial of a motion to suppress, a reviewing court is free to look to trial testimony as well as the evidence presented at the hearing on the motion to suppress. (People v. Caballero (1984), 102 Ill.2d 23; People v. Conner (1979), 78 Ill.2d 525, 532; People v. Braden (1966), 34 Ill.2d 516, 520.) That one may conclude that Crosby did consent to the search of her apartment is apparent from the record. Leonard Bogaty, one of the agents of the Federal Bureau of Investigation who made the defendant's arrest, testified:
"Q. After Mr. Stewart was taken from the scene by the officers, what did you do?
A. I went to the apartment.
Q. And when you got to the apartment door what did you do?
A. I had a conversation with Florence Crosby.
Q. And after your conversation with Florence Crosby where did you go or what did you do?
A. I went to a bedroom in that apartment and gathered Mr. Stewart's person [sic] belongings that he had in that bedroom."
One thus can infer that it was Crosby who consented to the search of her home. Bogaty's statement was unrebutted. (Parenthetically, we would observe that the State made a motion to supplement the record on appeal with a copy of a consent form signed by Florence Crosby authorizing Bogaty to search her apartment on February 21, 1981. The defendant objected to the motion. Because of our disposition of the consent issue above, we need not consider here the State's motion to supplement.) The trial court's refusal to suppress the evidence seized from Crosby's apartment was not manifestly erroneous; we must uphold that ruling. See People v. Williams (1974), 57 Ill.2d 239, 246.
The defendant next contends that the prosecution's exclusion by peremptory challenges of five veniremen who expressed conscientious or religious scruples against the death penalty resulted in an unconstitutionally selected jury. Its five peremptory challenges, the defendant says, produced a jury from which the prosection had swept all who expressed scruples against capital punishment and which was "uncommonly willing to condemn a man to die" in violation of Witherspoon v. Illinois (1968), 391 U.S. 510, 20 L.Ed.2d 776, 88 S.Ct. 1770. The defendant also cites Swain v. Alabama (1965), 380 U.S. 202, 13 L.Ed.2d 759, 85 S.Ct. 824, generally, as a basis for challenging the prosecution's use of peremptory challenges.
The defendant did not object to the peremptory challenges during voir dire. Nor did he raise the present claim in any of his post-trial motions. Thus, the issue has been waived. (See People v. Roberts (1979), 75 Ill.2d 1, 10.) The defendant, however, argues that his counsel's failure to preserve the alleged error is evidence of ineffective assistance of counsel. We must disagree. Ineffective assistance of counsel is not shown by a failure to preserve for review an issue which previously has been decided adversely to the claim of error. (People v. Lewis (1981), 88 Ill.2d 129, 156.) It is clear that the prosecution did not have to show cause for or explain the exercise of its peremptory challenges. (People v. Davis (1983), 95 Ill.2d 1.) Thus, the defendant's trial counsel did not have to make what would have been a fruitless objection.
In Dobbert v. State (Fla. 1982), 409 So.2d 1053, the Supreme Court of Florida considered a contention similar to the one the defendant now makes. The defendant there, as here, relied on Witherspoon and Swain. After first holding that peremptory challenges may be exercised freely and without explanation or justification, the court went on to say that in any event the defendant had waived any right to challenge the jury by his failure to object to the State's peremptory challenges. In a later proceeding (Dobbert v. Strickland (M.D. Fla. 1982), 532 F. Supp. 545), the district court, in denying habeas corpus relief, agreed that the defendant had waived the issue and held also that the defendant would not be entitled to relief even if the principle of waiver were not applied. The court said: "Witherspoon is clearly inapplicable to the case at bar * * * [Swain] cannot, even by analogy, be considered controlling here." (532 F. Supp. 545, 561-62.) Similarly, in Jordan v. Watkins (5th Cir. 1982), 681 F.2d 1067, the court held that Witherspoon is inapposite to [a similar peremptory-challenge argument] because it applies solely to the use of challenges for cause. We concur with those evaluations. (See also Jones v. State (1979), 243 Ga. 820, 256 S.E.2d 907; Cf. Adams v. Texas (1980), 448 U.S. 38, 48, 65 L.Ed.2d 581, 592, 100 S.Ct. 2521, 2528 (court cited peremptory challenges as example of permissible exclusions having nothing to do with capital punishment).) There is no evidence that the resulting jury here was biased in favor of a death sentence. (See People v. Tiller (1982), 94 Ill.2d 303, 322.) One may note that "[j]ust because the jurors were not opposed to the death penalty does not mean that they were biased in favor of it." People v. Ramirez (1983), 98 Ill.2d 439, 460.
In Witherspoon v. Illinois (1968), 391 U.S. 510, 20 L.Ed.2d 776, 88 S.Ct. 1770, the Supreme Court held that prospective jurors could not be excused for cause simply because they had scruples against capital punishment. The defendant here contends that venireman Cynthia M. Lochen was improperly excused for cause in violation of Witherspoon. During the voir dire examination there was the following discussion:
"THE COURT: Mrs. Lochen, do you have any conscientious or religious scruples against the infliction of the Death Penalty?
JUROR LOCHEN: I'm against it.
THE COURT: Would you automatically vote against the Death Penalty regardless of the facts that were presented during these proceedings?
JUROR LOCHEN: No, not automatically but I just don't believe in it. I would have to know the reasons. I mean I don't know what kind of, you know, murder this was, what the reason is or anything.
THE COURT: Would you automatically vote for the Death Penalty regardless of ...