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People v. Kashney

OPINION FILED DECEMBER 6, 1984.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

ROLAND J. KASHNEY, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. Thomas J. Maloney, Judge, presiding.

JUSTICE ROMITI DELIVERED THE OPINION OF THE COURT:

Following a jury trial defendant Roland Kashney was convicted of the murder of Benjamin Peck and sentenced to an indeterminate term of 30 to 60 years in the penitentiary. Defendant contends that he is entitled to reversal of his conviction and a new trial because: (1) he was improperly arrested without probable cause for murder by police using the pretext of an outstanding warrant on a minor charge and was subsequently coerced into falsely confessing; (2) defendant's motion to rehear his motion to suppress, based on evidence not previously available, should have been allowed; (3) the State improperly impeached the defendant with statements made to psychiatrists examining him pursuant to court order; (4) improper final argument by the prosecution denied defendant a fair trial.

We affirm.

The defendant was charged with the 1970 murder and armed robbery of Margaret Riggins and the 1974 murder and armed robbery of Benjamin Peck. The State's evidence established that the body of Peck was found lying face down on the kitchen floor of his home on September 21, 1974. He had massive wounds on the back of his head and the examining pathologist determined that death was caused by a skull fracture of blunt trauma character. The State introduced the confession of the defendant in which he stated that he came to Peck's house to discuss the sale of a car to Peck. An argument began as they spoke in the kitchen, and defendant struck Peck several times on the head with a wrench. He took several hundred dollars from Peck's person and disposed of the wrench. No fingerprints suitable for comparison were found at the Peck house.

The body of Margaret Riggins was found lying on the floor of her living room on October 5, 1970. Her bedroom drawers had been ransacked, and her purse had been emptied onto the kitchen table. Next to her body was a watch which family members did not recognize. The porcelain top of a toilet tank was found in pieces around her body. The examining pathologist concluded that Riggins died as the result of a cranial cerebral injury with extensive skull fracture. Unidentified fingerprints not matching those of the defendant were found in Riggins' home.

In the defendant's confession, introduced by the State, he stated that he had gone to Riggins' home to sell her a watch. While discussing the watch in her living room, the conversation turned to the subject of religion and became heated. Defendant became angry and after using the bathroom he took the toilet tank top and beat Riggins on the head with it. He then searched the apartment for money and left. (In a tape-recorded confession not included in the record on appeal defendant apparently also admitted to have taken some money.)

The defendant took the stand and denied having committed any of these acts. He testified that he had falsely confessed because of the pressure of satanic forces or demons within the police officers who questioned him. Those forces made him fear for his life. The defendant also presented the testimony of two self-styled experts in the field of demonology, Reverend John A. Nicola, a Catholic priest with a doctorate in sacred theology, and Reverend Lester Sumrall, a Protestant minister who testified that he had engaged in approximately 1,000 exorcisms. Both men testified they believed demons existed. Nicola also testified that he had participated in several exorcisms and had observed people who were terrified by their belief that a third person was possessed by the devil. Sumrall testified that demons were capable of possessing a human being and that others could recognize such possessions.

Also testifying for the defendant were two psychiatrists, Dr. Robert A. Reifman and Dr. Jewett Goldsmith. Reifman testified that in separate court-ordered fitness examinations in August 1977 and March 1978, he had determined that the defendant suffered from a schizophrenic reaction, paranoid type. Reifman described this as a serious mental illness characterized by delusions based on misinterpretation or misperception of reality. Goldsmith had examined the defendant in September 1977 and had made a diagnosis of a chronic paranoid state, which he described as a mental illness characterized by false beliefs or illusions. According to Goldsmith these illusions could be persecutory, causing the individual to become fearful of people he believed could harm him. In October 1979, Goldsmith again examined the defendant and found him to be schizophrenic but in remission.

At the conclusion of the trial the jury found the defendant guilty of the murder of Benjamin Peck but acquitted him on the other charges.

I

• 1 Defendant contends that his confessions should have been suppressed as the products of an improper pretext arrest and subsequent coercive questioning. Defendant concedes that at the time of his arrest the police were aware of an outstanding Wisconsin arrest warrant for him relating to his escape from detention on nonsupport charges. However, defendant contends that the police used this warrant merely as a pretext for arresting him on suspicion of having committed the two murders on which they lacked probable cause to arrest. Because we find that the police clearly did have probable cause to arrest the defendant for murder, we do not reach the issue of what would constitute an improper pretext arrest under Illinois law.

At the hearing on defendant's motion to suppress, arresting officer Frank Radke presented the following testimony relating to probable cause. At 8:30 p.m. on February 22, 1975, he spoke to Sharon Henderson pursuant to a call from her father. The police had been seeking to question her in connection with the murder of Peck (although not as a suspect) and had told her father to call them when she returned to Chicago. Henderson told Radke that she was the defendant's girlfriend and had been Peck's girlfriend. She said the defendant had confessed to her that he had killed Benjamin Peck over the price of an automobile. He also told her he had killed a woman approximately five years earlier in the area of Ashland and Fullerton in Chicago. Upon investigation, Radke determined that Margaret Riggins had been killed in 1970 at 1742 West Altgeld, which was about one block west of Ashland and one block north of Fullerton. Radke testified that Henderson had never given him information in the past. Several hours after Radke obtained this information the defendant was arrested at gunpoint in his home without an arrest warrant for murder having been obtained.

Probable cause is judged by whether the facts and circumstances known to the police would cause a man of reasonable caution to believe that an offense had been committed and the person to be arrested had committed it. (People v. Robinson (1976), 62 Ill.2d 273, 342 N.E.2d 356.) Contrary to defendant's contention there is nothing in this record to suggest that Sharon Henderson was a police informant whose information would thus be subjected to special reliability requirements which have been retained under the totality-of-the-evidence test developed in Illinois v. Gates (1983), 462 U.S. 213, 76 L.Ed.2d 527, 103 S.Ct. 2317, and adopted by the Illinois Supreme Court in People v. Tisler (1984), 103 Ill.2d 226. Citizen informants such as Sharon Henderson have never been subject to the special reliability tests applied to police informants. People v. Hester (1968), 39 Ill.2d 489, 237 N.E.2d 466, cert. dismissed (1970), 397 U.S. 660, 25 L.Ed.2d 642, 90 S.Ct. 1408.

• 2 Absent such special requirements, it is clear that the information obtained by the police in this case gave them probable cause to arrest the defendant for murder. In People v. Goode (1979), 72 Ill. App.3d 798, 391 N.E.2d 156, the police were informed by the defendant's aunt that when confronted with her accusations of having stolen items from her he said if he needed money he would "stick up an I.C. station again." The police then determined that an Illinois Central railroad station had recently been robbed. This court held that this information was sufficient to establish probable cause to arrest the defendant for that armed robbery. In this cause, the police were told by the defendant's girlfriend that he had admitted killing Benjamin Peck. The police were also able to verify that a second killing to ...


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