Appeal from the Circuit Court of Winnebago County, the Hon.
John E. Sype, Judge, presiding.
CHIEF JUSTICE RYAN DELIVERED THE OPINION OF THE COURT:
Rehearing denied February 1, 1985.
Raymond Lee Stewart was charged in a two-count indictment in the circuit court of Winnebago County with the murders of Willie Fredd and Albert Pearson (Ill. Rev. Stat. 1979, ch. 38, par. 9-1(a)(1)). A jury found defendant guilty on both counts. Following a separate sentencing hearing before the same jury, the defendant was sentenced to death. The sentence was stayed (87 Ill.2d R. 609(a)), pending direct appeal to this court (Ill. Const. 1970, art. VI, sec. 4(b); 87 Ill.2d R. 603). For the reasons set forth below, we affirm defendant's conviction and sentence.
As shown by affidavits filed for the purpose of procuring search warrants, several murders and armed robberies were committed within a few days in the cities of Rockford, Illinois, and Beloit, Wisconsin. On January 27, 1981, Willie Fredd and Albert Pearson were shot and killed during the course of an armed robbery of Fredd's Groceries in Rockford. These are the murders involved in this case. On January 28, 1981, a Clark gasoline station in Rockford was robbed and a 17-year-old named Kaiser was slain with four gunshot wounds to his chest and one to his head. On January 29, 1981, the E-Z Go gas station in Rockford was robbed and two victims were murdered by multiple gunshot wounds. On February 2, 1981, the Radio Shack at Beloit Plaza in Beloit, Wisconsin, was robbed and two men were murdered. One victim had five gunshot wounds to his body and the other four.
The defendant was convicted of the murder of Kaiser in the circuit court of Winnebago County and was sentenced to death. This court affirmed his conviction and sentence in People v. Stewart (1984), 104 Ill.2d 463 (Stewart I). The defendant was convicted in the circuit court of Rock County, Wisconsin, of two counts of first-degree murder and one count of armed robbery for the Radio Shack robbery and killings in Beloit, and was sentenced to life imprisonment on each count of murder and an indeterminate term not to exceed 20 years on the armed-robbery count.
On January 27, 1981, at approximately 1 p.m., Willie Fredd and Albert Pearson were shot to death in Fredd's Groceries in Rockford, Illinois. There were no eyewitnesses to the shootings. At trial, Belinda Jarrett testified that she left Fredd's Groceries shortly before one o'clock on the day of the murders. As she crossed the street in front of the store, she observed an older maroon-colored automobile with a black top, yellow license plates, and a broken front grill speeding toward her. Although she could not identify the driver, she stated that she saw the car turn and drive toward a parking lot located behind the store.
Additional evidence established that on January 22, 1981, defendant had returned to Illinois after visiting his cousin, Florence Crosby, in Greensboro, North Carolina. Upon his return, defendant registered at the Westward Motel under the name of Alan Spaulding. The motel was located approximately two blocks from Fredd's Groceries. When defendant checked out of the motel on January 30, 1981, Delores Perdue, the motel manager, observed him drive off in a maroon-colored automobile. Katherine Waldvogel, a maid at the motel, was also present when defendant checked out and stated that she saw defendant enter and drive away in a maroon and black automobile with Wisconsin license plates. Subsequently, while cleaning defendant's room, Waldvogel and another maid found a laundry receipt with the name "Stewart" written at the top and a T-shirt containing the initials "R.S." These matters will be discussed in more detail later.
The evidence confirmed that defendant was the owner of a 1970 black-over-maroon Mercury with yellow Wisconsin license plates. It also showed that on February 4, 1981, defendant executed a 24-hour rental contract for a U-Haul trailer which he attached to his Mercury. Two days later, as a result of mechanical problems, defendant had the Mercury and U-Haul towed to his brother-in-law's home in Sycamore, Illinois. There he removed the trailer from the Mercury and hitched it to a red and white Buick Electra 225 which also belonged to Stewart. He then drove to Crosby's home in Greensboro, North Carolina.
On February 21, 1981, agents from the Federal Bureau of Investigation arrested defendant in the parking lot outside Crosby's apartment as he was about to enter the Buick. The arrest was made pursuant to a Federal arrest warrant which had been issued for unlawful flight to avoid prosecution. The warrant was issued on February 20, 1981, and was based on information that defendant had fled Illinois after committing an armed robbery in Rockford several weeks before the incident involved in this case.
Shortly after the arrest, Special Agent Leonard Bogaty of the Federal Bureau of Investigation went to Crosby's apartment. Following a brief conversation with Crosby, Bogaty went to a bedroom shared by defendant and Crosby's young son and removed a number of defendant's items, including a large brown suitcase, a Polaroid camera and a camera case.
Later that day, FBI agents obtained a search warrant for defendant's suitcase and Buick. In the suitcase they found a loaded .38-caliber R&G revolver and a camera power pack. Among the items recovered from the Buick were a copy of an airline ticket dated January 22, 1981, in defendant's name; a U-Haul rental contract; a manila envelope containing personal papers; and a tan three-quarter-length man's coat with an unspent .38-caliber Smith & Wesson cartridge in the pocket. A number of witnesses testified at trial that the coat was similar to one that defendant had worn on previous occasions.
The next day, February 22, 1981, Agent Bogaty went to the home of Charlie Benton, defendant's uncle, in Whitsett, North Carolina, approximately five miles from Greensboro. Agent Bogaty observed the U-Haul trailer in the yard and inquired whether Benton had any objection to the FBI removing the trailer. Benton stated that he did not object, and the trailer was taken to the Greensboro police department, where it was searched the following day after agents obtained a search warrant. In the trailer, agents found a .38-caliber Smith & Wesson revolver and matching ammunition. Tests performed on the Smith & Wesson revolver determined that it was the weapon used to kill Fredd and Pearson. Tests were also performed on the tan coat recovered from the Buick. They revealed the presence of human blood in five areas, as well as gunshot powder residue on both sleeves.
With respect to the Smith & Wesson revolver and camera equipment found in defendant's possession, Cornelius Jones testified that in December 1980 he was robbed in the parking lot of a lounge in South Beloit by a black man armed with a .32- or .38-caliber snub-nose revolver. When showed the .38-caliber R&G revolver recovered from defendant's suitcase, Jones stated that it looked like the same type of weapon that was pointed at him. Jones identified the Smith & Wesson revolver, Polaroid camera and attachments as the items taken from him during the robbery. He also stated that, because the assailant wore a ski mask, he was unable to identify him; however, following the robbery, he observed a red and white Buick Electra 225 drive out of the parking lot.
The defendant has raised 27 grounds for reversing his conviction and sentence. Many of these are divided into subissues. He first contends that factual misstatements were intentionally inserted in the warrant affidavits to deceive the magistrate, or that they were inserted with reckless disregard for the truth. Thus, he argues that the evidence obtained pursuant to the warrants should have been suppressed under Franks v. Delaware (1978), 438 U.S. 154, 57 L.Ed.2d 667, 98 S.Ct. 2674.
As noted earlier, two Federal search warrants were issued; both were supported by affidavits of agents of the Federal Bureau of Investigation. The affidavit of Henry Phillips served as a basis for the warrant to search defendant's Buick and suitcase. The affidavit of Thomas Brerton, which incorporated the Phillips affidavit and supplemented it, supported the warrant authorizing a search of the U-Haul trailer. The focus of defendant's argument is on statements contained in the Phillips affidavit. Phillips had stated that he had personally received information from Illinois law-enforcement officials concerning six homicides committed during the course of four armed robberies. The affidavits, as noted earlier, set out seven homicides. He further advised the magistrate that ballistic evidence furnished by the Illinois Division of Criminal Investigation Laboratory had determined that all the homicides were related. With respect to the Fredd and Pearsons murders, the affidavit provided:
On January 27, 1981, two black males, WILLIE FREDD, and ALBERT PEARSON, were shot and killed during the course of an armed robbery of Fredd's Grocery Store [sic] at Rockford, Illinois, and that from witnesses who were at the location of the robbery shortly prior to the discovery of the victims it was determined that the perpetrator had been operating a maroon 1970 Mercury with Wisconsin license and that this vehicle was observed behind Fredd's Grocery Store [sic]. Additional investigation determined that RAYMOND LEE STEWART was staying at the Westwood Motel [sic] and was registered under an alias however, was identified by motel personnel from his photograph.
RAYMOND LEE STEWART was arrested in 1972 [sic] for armed robbery as a result of the identification of WILLIE FREDD. Further investogation [sic] by said officers identified STEWART as having been operating a 1970 maroon Mercury with Wisconsin license while at this motel."
It is undisputed that the quoted language contains a number of factual misstatements. The statement attributing the description of the automobile to "witnesses who were at the location of the robbery" was inaccurate since that information was supplied by only one witness, Belinda Jarrett. Also, the description of the automobile was an embellishment of the description given by Jarrett. In reality, she did not know the year or make of the vehicle, nor did she positively state that it had Wisconsin license. Rather, in her statement to police, she described the vehicle as an older maroon-colored automobile with a black top, broken front grill and yellow license which she thought to be Wisconsin. Lastly, attributing the Mercury to the "perpetrator" was inaccurate, as there was nothing in Jarrett's statement that tied the Mercury to the individual who committed the murders. These misstatements, defendant argues, were included deliberately or with reckless disregard for the truth to bolster the facts upon which the magistrate was to make a probable-cause determination.
To further support his contention, defendant cites two additional misstatements. The first was contained in a separate portion of the Phillips affidavit dealing with an armed robbery on January 29, 1981, at the E-Z Go gas station in Rockford. The affidavit stated that two victims had been murdered and that bullets removed from the bodies were identical to bullets removed from Fredd and Pearson. Actually, however, only one person was murdered during the robbery. The second erroneous statement provided that, "[a]t the time of his arrest, [defendant] was residing at 600-C Banner Street, the residence of CHARLIE BENTON [sic], and that they [sic] executed a waiver form and advised and showed officers the location of STEWARTS property * * *." In reality, Florence Crosby resided at the Banner Street address and consented to a search of her apartment; Benton lived a short distance away in Whitsett, North Carolina.
Under Illinois law, prior to Franks v. Delaware, a defendant was precluded from attacking the veracity of sworn statements contained in a search warrant affidavit. (See People v. Laws (1981), 84 Ill.2d 493, 504.) Franks v. Delaware provided a limited exception to this general rule. There is still a presumption of validity with regard to a search warrant affidavit. (Franks v. Delaware (1978), 438 U.S. 154, 171, 57 L.Ed.2d 667, 682, 98 S.Ct. 2674, 2684.) To overcome the presumption of validity, a defendant must make a substantial preliminary showing that false statements were deliberately included in the affidavit, or included with a reckless disregard for the truth, and that the statements were necessary to a finding of probable cause. If these conditions are met, the defendant is entitled to an evidentiary hearing where he must prove his allegations of perjury or reckless disregard for the truth by a preponderance of the evidence. He must also show that, if the false statements are excised, there is insufficient material remaining to establish probable cause. Franks v. Delaware (1978), 438 U.S. 154, 171-72, 57 L.Ed.2d 667, 682, 98 S.Ct. 2674, 2684-85. See also People v. Laws (1981), 84 Ill.2d 493, 505.
At a pretrial suppression hearing, the trial court afforded defendant a full evidentiary hearing to substantiate his claim of improper conduct. Among the witnesses called by defendant were Patrick Young, special agent of the Illinois Department of Law Enforcement, and Laverne Pickett, a detective with the Rockford police department. Young and Pickett were responsible for gathering the information concerning the series of armed robberies and homicides and relaying it to FBI agents Phillips and Brerton. Both Young and Pickett denied that they informed the Federal agents that the "perpetrator" was operating a 1970 maroon Mercury with Wisconsin license. Rather, they testified that they informed Phillips and Brerton that a witness had observed an older maroon-colored vehicle with yellow license, which she thought to be Wisconsin, pull into the parking lot behind Fredd's Groceries. As to the discrepancy between the information they supplied and the statements which appeared in the affidavit, Pickett testified:
"The only thing that I know is that I discussed with the agents that the witness they [sic] observed had a particular color older vehicle, with what she thought was Wisconsin plates; and I also discussed with the agents that we had determined that our suspect drove an older vehicle, which was a 1970 Mercury, maroon color, with Wisconsin plates. Now, how it came out on the affidavit that the witness said that, I don't know * * *."
At the conclusion of the evidence, the trial court ruled that the defendant had failed to sustain his burden of establishing either a deliberate falsehood or reckless disregard for the truth. The court also found that, viewing the affidavit as a whole, even if the misstatements were omitted, there was still sufficient information to support a probable-cause finding.
It is well established that a trial court's ruling on a motion to suppress will not be set aside unless manifestly erroneous. (E.g., People v. Long (1983), 99 Ill.2d 219, 231; People v. Williams (1974), 57 Ill.2d 239, 246.) From our review of the record, we conclude that the trial court did not err in refusing to suppress the evidence obtained pursuant to the search warrants. There was no evidence that the misstatements were deliberately inserted in the affidavit to deceive the magistrate or that they were the product of a reckless disregard for the truth. Indeed, the evidence only showed that there were, in fact, a number of incorrect statements.
Defendant argues that the use of the term "perpetrator," by itself, establishes an intentional falsity or reckless disregard for the truth. At the hearing, defendant conceded that the term originated with Phillips, since he argued to the court that neither Young nor Pickett used the word perpetrator when they relayed their information to Phillips. Yet Phillips was not called to testify regarding how the word came to be included in his affidavit. Thus, all we are left with is defendant's assertion that it was a deliberate falsehood or reckless disregard for the truth. Franks makes it clear, however, that mere conclusory allegations are insufficient to overcome the effect of sworn statements in an affidavit. A defendant must prove by a preponderance of the evidence his charge of perjury or reckless disregard for the truth. 438 U.S. 154, 156, 57 L.Ed.2d 667, 672, 98 S.Ct. 2674, 2676.
Defendant further asserts that the number of factual misstatements evinces reckless conduct. Again, there is nothing in the record to substantiate this allegation. Moreover, we are mindful of the Supreme Court's admonition that search warrant affidavits are to be "tested and interpreted by magistrates and courts in a commonsense and realistic fashion." (United States v. Ventresca (1965), 380 U.S. 102, 108, 13 L.Ed.2d 684, 689, 85 S.Ct. 741, 746.) This approach was utilized by the trial court when it properly considered the circumstances under which the affidavits were prepared. (See United States v. Ciammitti (6th Cir. 1983), 720 F.2d 927, 932; United States v. Young Buffalo (9th Cir. 1979), 591 F.2d 506, 511.) The court observed that "masses of information were being transmitted through large numbers of people" regarding the four armed robberies and six homicides. Considering that all the information had to be synthesized, sifted, condensed, and relayed to FBI agents unfamiliar with the crimes, it is not unreasonable that certain inaccuracies were included in the affidavits. Viewed in this light, we cannot say the trial court erred in concluding that the misstatements were not intentional or the result of a reckless disregard for the truth.
Defendant next contends that the trial court erred in refusing to quash the search warrants on the ground that certain information was deliberately omitted from the affidavit in a calculated effort to deceive the magistrate. According to defendant, had the information been included, the magistrate would not have found probable cause to issue the search warrant.
At the suppression hearing, defendant introduced 47 police reports dealing with the investigation of the four armed robberies and six homicides to support his claim that exculpating information was intentionally withheld from the magistrate. He also called Randall Oldenburger, a Rockford police officer, to testify concerning information he had received from two couples, Mr. and Mrs. Kunde and Mr. and Mrs. Satness, who allegedly drove together past Fredd's Groceries around the time of the murders. After considering the evidence, the trial court, applying the test set forth in Franks v. Delaware, ruled that defendant had failed to make a substantial preliminary showing of a deliberate attempt to withhold information for the purpose of deceiving the magistrate.
This court has not previously addressed the question whether a search warrant can be invalidated on the basis that material facts were omitted from the supporting affidavit. In Franks v. Delaware, the Supreme Court dealt solely with the situation where false statements were intentionally or recklessly included in the affidavit. The court observed "it would be an unthinkable imposition upon [the magistrate's] authority if a warrant affidavit, revealed after the fact to contain a deliberately or recklessly false statement, were to stand beyond impeachment." (438 U.S. 154, 165, 57 L.Ed.2d 667, 678, 98 S.Ct. 2674, 2681.) We believe that this principle applies with equal force to the intentional omission of information necessary to a probable-cause determination. United States v. Willis (9th Cir. 1981), 647 F.2d 54, 58; United States v. Martin (9th Cir. 1980), 615 F.2d 318, 329; United States v. Dorfman (N.D. Ill. 1982), 542 F. Supp. 345, aff'd (7th Cir. 1982), 690 F.2d 1217; People v. Hothersall (1981), 103 Ill. App.3d 183; People v. Reynolds (1981), 96 Ill. App.3d 79; People v. Townsend (1980), 90 Ill. App.3d 1089; 2 W. LaFave, Search and Seizure sec. 4.4 (Supp. 1984).
Undoubtedly, not all omissions, even if intentional, are sufficient to invalidate an affidavit. (See, e.g., United States v. Mankani (2d Cir. 1984), 738 F.2d 538; United States v. Martin (5th Cir. 1980), 615 F.2d 318; Schmid v. State (Alaska 1980), 615 P.2d 565; State v. Lehnen (La. 1981), 403 So.2d 683.) Indeed, an affiant may have omitted facts on the reasonable belief that they were immaterial or privileged (People v. Kurland (1980), 28 Cal.3d 376, 618 P.2d 213, 168 Cal.Rptr. 667), or he may have found that they could not be substantiated. As a result, we emphasize that mere allegations are inadequate to overcome the presumption in favor of the affidavit's validity. The defendant must show that the information omitted was material to the determination of probable cause and that it was omitted for the purpose of misleading the magistrate.
Turning to defendant's allegations in this case, we note initially that his position is somewhat paradoxical. On the one hand, he concedes that a large investigative file had to be condensed for the purpose of preparing the search warrant affidavits, and that the police were not required to set forth all the information they had accumulated. Yet, were the authorities to include all the facts which defendant alleges were necessary to a probable-cause determination, they would have had to include virtually every piece of information relating to the investigations of the four armed robberies and six homicides. Clearly, such a requirement would be impractical and unreasonable given that search warrant affidavits "are normally drafted * * * in the midst and haste of a criminal investigation." United States v. Ventresca (1965), 380 U.S. 102, 108, 13 L.Ed.2d 684, 689, 85 S.Ct. 741, 746.
Defendant relies heavily on the statements given to the police by the Kundes and Satnesses. He argues that the affidavit failed to mention that the Satnesses observed a maroon Ford station wagon parked in front of Fredd's Groceries around the time of the murders.
This description, defendant contends, was not inconsistent with the one furnished by Jarrett. Although it is not entirely clear, defendant's position appears to be that the person responsible for the crimes could have been driving a maroon station wagon, but that reference to this vehicle was intentionally omitted from the affidavit in order to tailor the facts to focus on him. Defendant further points out, in an apparent attempt to link the station wagon allegedly observed by the Satnesses to one of the other murder scenes, that the affidavit failed to include the sighting of a station wagon at the E-Z Go gas station.
It would unduly prolong this opinion to set forth in detail the information supplied to the police by the Kundes and Satnesses. Instead, we simply note that the evidence shows their statements were so fraught with inconsistencies that it was not unreasonable for the police to conclude that the information was unreliable. Moreover, even if we were to assume that the Satnesses had, in fact, seen a maroon station wagon, there is nothing to connect that vehicle, as defendant suggests, to the E-Z Go murder. The police reports pertaining to the E-Z Go homicide investigation reveal that the station wagon observed there was dark blue. (The only other reference to a station wagon at that location was to one owned by the victim.) Under these circumstances, it can hardly be said that this information should have been included in the affidavit or that it could have affected the magistrate's determination of probable cause.
Defendant also alleges that the authorities deliberately omitted contradictory descriptions of cars and suspects observed at the four crime scenes. We have reviewed the police reports submitted by defendant to support his claim and conclude that his argument is unfounded. For the sake of brevity, we will deal with only one example cited by defendant.
He asserts that the affidavit omitted reports of brown automobiles observed at three of the crimes scenes. According to defendant, "[t]he frequency of the reports regarding a brown car would be more probative, because common to a number of locations, than the maroon car described by Jarrett." This necessarily assumes, and defendant implies, that the same brown car was observed at all three locations. An examination of the police reports reveals such is not the case. One of the automobiles, described as a chocolate-brown 1968 Buick, was observed, not at Fredd's Groceries, but at a liquor store a block and a half away more than an hour after the murders. The second vehicle, described simply as medium brown, was reportedly seen at the E-Z Go gas station. Lastly, at the Clark gas station, a witness reported seeing a white-over-brown Chrysler. Thus, there is no merit to defendant's assertion that these sightings were more probative than the vehicle described by Jarrett and therefore should have been included in the affidavit.
Defendant also complains that the affidavit failed to mention the information provided by Jessie Fleming, who claimed to have seen three armed men emerge from Fredd's Groceries minutes before the bodies were discovered. Defendant further notes that Fleming received a "qualified yes" after submitting to a polygraph test. That the police had reason to discount Fleming's information is readily evident after examining the police reports. True, Fleming originally stated that, as he was walking towards Fredd's store, he heard two shots and saw three black males emerge from the store and enter a 1969 cream-colored four-door Chrysler Newport. Fleming stated that two of the men wore mid-length green army coats, the third a long brown coat. During a subsequent interview, however, Fleming's story changed considerably; he stated he saw one black male, wearing a black leather coat, emerge from the store and enter a black or medium blue Buick Electra two-door, allegedly occupied by two other men. He also admitted to fabricating the description of the Chrysler. As to the polygraph test, defendant conveniently neglects to reveal that the police wanted to conduct a second test as Fleming admitted to having had very little sleep and to having smoked marijuana prior to the first test. To argue that Fleming's information should have been included in the affidavit, and that its omission evinces a calculated effort to deceive the magistrate, borders, we think, on the absurd. To so hold would impose upon the police the duty to present to a magistrate every conceivable piece of information, regardless of its reliability, obtained during the course of their investigation. Franks v. Delaware clearly does not require such a result.
The most "glaring omission" defendant argues concerns a pair of paint-stained boots. The search warrant authorized a search for a pair of men's boots based on information in the affidavits that a footprint was left in wet paint at the scene of the E-Z Go homicide. Defendant alleges that the authorities deliberately omitted the fact that a pair of boots, similar to the ones sought, had been recovered from another suspect. He contends that the ...