Appeal from the Circuit Court of Franklin County; the Hon.
Bruce D. Irish, Judge, presiding.
JUSTICE KASSERMAN DELIVERED THE OPINION OF THE COURT:
Defendant, William R. Bondi, was convicted by a jury in the circuit court of Franklin County on a charge of murder under section 9-1(a)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, par. 9-1(a)(1)) and was sentenced to a term of natural life imprisonment.
On appeal defendant contends: (1) that the circuit court improperly denied his motion to suppress evidence seized in a warrantless search of defendant's property, (2) that the prosecutor's comments during closing argument deprived defendant of a fair trial, and (3) that the circuit court abused its discretion in sentencing defendant to a term of natural life imprisonment.
Since defendant does not challenge the sufficiency of the evidence against him, a complete recitation of the facts adduced at trial is unnecessary; however, those facts related to the issues raised by defendant are detailed below. We first address defendant's contention that the circuit court improperly denied his motion to suppress evidence seized in a warrantless search of defendant's property.
On Monday, December 31, 1979, Genevieve Bondi was reported missing by her cousin, Dorothy Hopkins. Genevieve Bondi's body was found three days later in a shallow grave on property owned by her and her husband, the defendant, approximately 300 feet from their place of residence. A post-mortem examination indicated that the cause of death was either a small caliber gunshot wound to the left side of the head penetrating into the brain, a skull fracture at the left forehead, or a combination of both injuries. The pathologist who conducted the examination testified that the skull fracture occurred prior to the death of the victim and that it was not the result of the bullet which inflicted the gunshot wound but that it resulted from independent causes. The record establishes that the search for Genevieve Bondi had been conducted without a warrant and without the consent of the defendant, who, by the time the search was commenced, was no longer present in the State. Based on these facts, defendant requested the trial court to suppress the body of the victim and various items of personal property discovered during the search.
• 1 The Illinois courts have had occasion to address the issue raised by defendant's assertions in this regard and have held that no warrant is necessary when, as here, the authorities' entry into and search of the premises was for the purpose of providing aid to persons or property in need thereof. (See People v. Clayton (1975), 34 Ill. App.3d 376, 339 N.E.2d 783; People v. Brooks (1972), 7 Ill. App.3d 767, 289 N.E.2d 207.) Evidence of crime discovered during such an entry may be legally seized without a warrant. Coolidge v. New Hampshire (1971), 403 U.S. 443, 29 L.Ed.2d 564, 91 S.Ct. 2022; People v. Clayton (1975), 34 Ill. App.3d 376, 379, 339 N.E.2d 783, 785; People v. Brooks (1972), 7 Ill. App.3d 767, 777, 289 N.E.2d 207, 214.
The fourth amendment to the United States Constitution (U.S. Const., amend. IV) proscribes all unreasonable searches and seizures. "`[S]earches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment subject only to a few specifically established and well-delineated exceptions.'" (Mincey v. Arizona (1978), 437 U.S. 385, 390, 57 L.Ed.2d 290, 298-99, 98 S.Ct. 2408, 2412, quoting Katz v. United States (1967), 389 U.S. 347, 357, 19 L.Ed.2d 576, 585, 88 S.Ct. 507, 514.) The issue raised by defendant's appeal involves one such exception.
• 2, 3 Entry and search of premises for the purpose of providing aid to persons or property in need thereof is permitted without a warrant under the so-called "emergency" doctrine. (Mincey v. Arizona (1978), 437 U.S. 385, 390, 57 L.Ed.2d 290, 298-99, 98 S.Ct. 2408, 2412; People v. Free (1983), 94 Ill.2d 378, 395-96, 447 N.E.2d 218, 226.) The basic elements of this exception to the warrant requirement under the fourth amendment have been summarized in the following manner:
"(1) The police must have reasonable grounds to believe that there is an emergency at hand and an immediate need for their assistance for the protection of life or property.
(2) The search must not be primarily motivated by intent to arrest and seize evidence.
(3) There must be some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched." (2 W. LaFave, Search & Seizure sec. 6.6(a), at 469 (1978).)
Applying these guidelines to the case at bar, we conclude: (1) that the fact that Genevieve Bondi was reported missing gave the authorities reasonable grounds to believe that she might be in imminent danger of death or serious bodily harm, (2) that as such the primary intent of the search of the premises was to locate her and provide assistance to her, not to seize evidence against the defendant, and (3) that her residence and the property surrounding it were the most likely places to search for evidence of the whereabouts of a missing occupant.
We reject defendant's contention that because the victim was dead by the time her body was discovered, no emergency existed which would justify the warrantless intrusion which resulted in the discovery. Until the body was unearthed and identified as that of Genevieve Bondi, it was essential that the search for her continue and to continue with sufficient haste. These facts bring the instant search within the scope of the emergency doctrine. It is for this reason that the excavation of the burial site was within the permissible scope of the authorities' search for Genevieve Bondi. In the context of their search for the missing woman, the presence of the fresh diggings which marked her grave provided sufficient grounds for the authorities to investigate. This excavation is different in no substantive way from the entry and search of the premises in People v. Brooks (1972), 7 Ill. App.3d 767, 289 N.E.2d 207, in which the odor of a deceased body led the authorities to enter an apartment without a warrant. We conclude, therefore, that the circuit court's denial of defendant's motion to suppress was proper.
• 4 We next address defendant's claim that he was deprived of a fair trial by various comments the prosecutor made during closing argument. Defendant urges that reversible error occurred when the prosecutor stated that defendant murdered his wife because she would not divorce him, when the prosecutor misstated the testimony of a psychologist who testified as a defense witness, and when the prosecutor impugned defendant's motive for surrendering himself to authorities by stating that defendant did so in order to be able to return and inherit his wife's property. Defendant further contends that the prosecutor made inflammatory statements to the jury to the effect that the victim had been buried alive; and finally, defendant objects to the prosecutor's characterization of defendant's trial tactics as smoke screens.
Defense counsel objected only to the prosecutor's comment concerning the defendant's wife's refusal to grant defendant a divorce. However, that comment was later ably rebutted at trial when defense counsel pointed out to the jurors that there was no evidence to support the prosecutor's statement. We can therefore conclude that the statement was not a significant factor in the jury's determination and accordingly does not warrant reversal. (See People v. Moore (1973), 55 Ill.2d 570, 576-77, 304 N.E.2d 622, 625.) Any error resulting from the remaining allegedly prejudicial remarks is waived by defendant's failure to object thereto unless the comments are so inflammatory that defendant could not have received a fair trial or so flagrant as to threaten deterioration of the judicial process. (People v. Owens ...