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People v. Andersen





Appeal from the Circuit Court of Cook County; the Hon. Maurice D. Pompey, Judge, presiding.


In a jury trial defendant Daniel Andersen was convicted of attempting to rape and then murdering Cathy Trunko. He was sentenced to concurrent prison terms of 30 and 55 years for those respective crimes. On appeal defendant contends: (1) a series of incriminating statements by him should have been suppressed because (a) they resulted from an arrest made without probable cause, (b) defendant made them while in an intoxicated state, (c) they were tainted by an improperly obtained statement that was suppressed; (2) the statement that was suppressed was then improperly allowed into evidence; (3) the trial court erred in barring evidence of defendant's history of alcoholism; (4) defendant's guilt was not proved beyond a reasonable doubt.

We affirm.

Prior to trial defendant moved to suppress a series of incriminating statements made by him following his arrest. At the hearing on that motion the following pertinent evidence was introduced. Chicago police officer James Bednarkiewicz testified that on January 23, 1980, at about 11 p.m. he was told by Officer Michael Riley that defendant was in possession of a weapon and was driving a silver Pinto. It was stipulated that if called to testify Officer Riley would have stated that earlier that evening defendant's mother telephoned him to obtain his help in bringing home the defendant, who was drunk and driving.

At about 1:30 a.m. on January 24, 1980, Officer Bednarkiewicz and his partner, Officer Paul Nielsen, stopped a silver Pinto driven by a person subsequently identified as Norman Venegas. A search of Venegas and the car produced no weapons. Nielsen drove the Pinto to defendant's house at 5119 South Hermitage in Chicago, while Bednarkiewicz drove the squad car to the same location, with Venegas in the back seat.

On arrival Bednarkiewicz saw the defendant walking toward him. Defendant did not immediately respond to his order to put his hands on a parked car, so Bednarkiewicz forcibly turned him around against the car. A search of the defendant produced no weapon. While Riley remained with the defendant, Bednarkiewicz spoke to defendant's mother at the house. He asked if she wanted defendant left with her or taken in to the station. Defendant's mother said she was having trouble controlling defendant; he was in a mixed-up state of mind and kept coming in and out of the house, causing a disturbance. She signed a disorderly conduct complaint against him, and defendant was handcuffed and placed in the squad car for the five-minute ride to the Ninth District police station. Venegas was taken to the station in another squad car.

In the car Bednarkiewicz twice asked defendant what he had done with the weapon. Defendant denied any knowledge of a weapon and said he had been out drinking with some friends. Defendant asked for a cigarette and was told he could have one at the station. No further conversation occurred until the car arrived at the station parking lot. Defendant then stated, "I stabbed her." Bednarkiewicz asked, "Who?" and defendant responded, "Cathy." Nothing more was said until they all entered an office at the station. There defendant's handcuffs were removed and he was given a cigarette. (On cross-examination, Bednarkiewicz stated that defendant was handcuffed with one hand to a locker.) Bednarkiewicz informed defendant for the first time of his Miranda rights, and defendant stated that he understood them and wished to waive them. Defendant responded to booking questions concerning his name, address and date of birth. He was then asked how he had stabbed Cathy. He demonstrated that he had stabbed her once on one side of the chest and twice on the other side. He was asked what he had done with the knife and stated he had thrown it on Hermitage.

Bednarkiewicz admitted that on the police report he had checked the box indicating that defendant was intoxicated when arrested. (On this standard form two other boxes indicate an arrestee was either sober or had been drinking.) When he initially stopped defendant, Bednarkiewicz could smell alcohol on his breath, and defendant was belligerent and loud. Based on this, it was his opinion that the defendant had been drinking. However, at the police station defendant was calm and gave understandable responses that were in context.

According to Bednarkiewicz, defendant was kept at the station until 3:20 a.m. Defendant never asked for food or water, was not promised any food if he talked, and was not given incorrect facts concerning Cathy's murder. Nobody struck the defendant.

Norman Venegas, a "close friend" of the defendant, testified that around noon on January 23, 1980, defendant came to Venegas' place of work drunk. He also drank two beers while there but was able to carry on a conversation with Venegas and had no difficulty speaking. They again met at midnight at the Red Mist Tavern, where they drank for an hour. Venegas recalled that defendant drank three beers, three shots of blackberry brandy, and one shot of vodka. They drove around the neighborhood, sharing two marijuana cigarettes, and then returned to the Red Mist, where they each had another shot and a beer. Because defendant was "pretty well intoxicated," Venegas took defendant's car home, leaving defendant at the bar. At this time defendant was still able to talk, but his voice was very deep and difficult to understand.

On the way to defendant's house Venegas was stopped by the police, who thought he had a gun. When Venegas was subsequently transported to defendant's house, he saw the police twisting defendant's arm behind his back. They questioned defendant about a girl who had just been murdered in the neighborhood. Defendant was crying, saying that he knew the girl. According to Venegas, the back windows of the squad car were rolled down, and he put his head out the window to yell at the police to leave defendant alone.

After being held on the street for about 15 minutes with his arm twisted, defendant was handcuffed and driven away. Venegas was taken to the police station and for a time was placed in a room with the defendant. Defendant, who was "pretty well intoxicated," and had both hands handcuffed to a locker, kept asking for water but was told by the police to shut up. Defendant's throat was hoarse. After several hours Venegas was given a traffic ticket and sent home. He recalled that the day after Cathy was killed the defendant had told him he knew who killed her. Defendant was drunk, and when Venegas inquired further, defendant told him it was none of his business.

Ray Lasky, a friend of the defendant since the age of five, testified that defendant began drinking at the age of 13 and frequently drank to excess. On January 23 at the Red Mist the defendant was "getting kind of wild," so Lasky drove him home. During this ride defendant, who was drunk, talked incoherently about owning gold and silver mines. On arrival at defendant's house, defendant asked Lasky to stay while he went to see what the police wanted. He walked over to the police and began talking to them, at which point Lasky drove away.

Defendant's mother testified that defendant had had a problem with alcohol for a long time. On January 23, 1980, he had been drunk early in the day and she again saw him drinking between 2 and 3 p.m. That evening defendant's former employer called her to report that defendant was driving up and down the sidewalk. She called Officer Riley, a family friend, asking him to bring defendant home. Later that evening the police came to her home. At about the same time, she saw the defendant walking or running up. In her opinion he was very drunk, although he ran without stumbling and she could understand his speech. Officer Bednarkiewicz came inside her front hallway and told her that defendant was wild and drunk. If she signed a complaint, defendant could sober up in jail. Through her picture window she could see another officer twisting defendant's arm and saying "You're the guy that did it." A person in the back of the squad car was telling the police to stop hurting the defendant. The windows of the car were rolled up.

Defendant's brother, Mark, testified that he was at home with his mother that evening and saw the police grab the defendant and twist his arm. The drapes on the picture window were closed, but he could see out through a side window. His mother was reluctant to sign the complaint, but the police told her the defendant would be released the next day. Mark testified that earlier, at about 7 p.m., the defendant had been drunk. Defendant was shouting and he could smell alcohol on his breath. However, he did not actually see the defendant drinking at any time that day.

Alex Salazar, defendant's friend for eight years, testified that in the early morning hours of January 24, 1980, he was at the Ninth District police station charged with criminal damage to property. He shared a lock-up cell with the defendant for about three hours starting at 2:30 or 3 a.m. Defendant's eyes were bloodshot, the right side of his face was red, and he appeared to be intoxicated. The defendant was unable to complete a conversation and kept asking who Salazar was. Defense counsel subsequently recalled Salazar to the stand and attempted to elicit from him a statement that he was mistaken as to the date of his incarceration, that it had been the following morning, but the trial court sustained the State's objection to this as attempted impeachment of counsel's own witness.

Defendant's father testified that he saw the defendant at the Ninth District station at about midnight on January 24, 1980. Defendant's eyes were red, he had a deep voice from a sore throat, the right side of his face was red, and there was a gash on the top of his forehead. He appeared very nervous and said the police would not let him call. However, he also said he did not need an attorney because Detective James Higgins said he was his attorney. Defendant told his father he would soon be released and would be going to California. He did not complain of any police mistreatment.

Defendant's uncle, Father Raymar Boller, a hospital chaplain with the Veteran's Administration, testified that he was familiar with the physical reactions experienced by alcoholics when they stopped drinking. On January 26, 1980, he saw the defendant at the hospital for 45 minutes. Defendant was nervous and sometimes incoherent. He had a cut on his forehead and swollen wrists from the handcuffs. Defendant told Boller he would soon be going to California. He also gave Boller a message for Detective Higgins, written in what he said was a code he and Higgins had devised. It was Boller's opinion that defendant was under the influence of alcohol or other drugs.

Also testifying for defendant at the hearing was Dr. Donald Sellers, medical director of the Lutheran Center for Substance Abuse in Park Ridge. Sellers testified that he was a board-certified psychiatrist specializing in drug abuse with a subspecialty in alcohol abuse. According to Sellers, alcoholism is a disease which creates an uncontrollable compulsion to drink. Under the influence of alcohol people may become totally irrational, unable to perceive reality, and may lose control over their behavior.

Sellers had been told by defendant's mother that defendant had been drinking since the age of 12 and had increasingly used alcohol to excess. Father Boller had told Sellers of his observations of the defendant at the hospital. In two interviews conducted with the defendant in January and February of 1981, defendant had told Sellers that he was drinking every day by the age of 14. Defendant also stated that after being jailed he became delirious and was transferred to a hospital for treatment.

Based on this information, it was Dr. Sellers' opinion that defendant was a chronic alcoholic suffering from toxic brain syndrome at the time of his arrest. Sellers also testified that Actifed, which defendant told him he was taking at the time of his arrest, was a very dangerous drug to take with alcohol. He subsequently testified that combinations of large amounts of alcohol and Actifed could cause delusions and hallucinations.

On cross-examination Sellers admitted that he had not consulted the police or the assistant State's Attorneys who had seen the defendant the night of his arrest. Sellers was recalled by the State and was asked about a hypothetical person who showed no symptoms of toxic brain syndrome from early morning until evening, when a statement from him was transcribed. This person had earlier given inculpatory and exculpatory statements. He was able to make written corrections of the written statement, and he initialed every page. Sellers was also given defendant's statement to read. Sellers testified that he would conclude that the hypothetical person was not suffering from toxic brain syndrome or acute intoxication. Sellers specifically noted that a person suffering from either of these conditions would not be able to sign the signature he saw (on the defendant's statement) unless he had been given medication or alcohol to prevent withdrawal symptoms.

In rebuttal at the hearing, the State introduced the testimony of Detective James Higgins. On January 24, 1980, at about 9 a.m., he met with the defendant for about one-half hour at Area 3 Homicide. He again questioned the defendant at about 3 p.m. and 5 p.m. At 6:40 p.m. a written statement was obtained. Prior to all of these interviews, defendant was informed of his Miranda rights. At about 9 p.m. defendant read a transcription of his statement. He made spelling corrections and at one point changed "shooting" to "stabbing." Defendant initialed every page and signed the last page.

According to Higgins, defendant was not handcuffed except at the start of the first interview. His speech was not slurred, and he displayed no lack of coordination. When taken to the bathroom, he walked normally. He showed no signs of nausea, no hand tremors, and had no difficulty focusing his attention. He spoke in a regular voice and gave responsive and coherent answers. He did not complain of any delusions or hallucinations.

Higgins denied striking defendant or making any promises to him. He noted no bruises on defendant's forehead. Higgins also denied telling defendant any of the details contained in the statement. Just before the 5 p.m. interview, he had shown ...

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