Appeal from the Circuit Court of Du Page County; the Hon. Carl
F.J. Henninger, Judge, presiding.
JUSTICE STROUSE DELIVERED THE OPINION OF THE COURT:
The defendant, Chris Rogers, was charged in a two-count indictment with the murder of Brenda Almanza in violation of section 9-1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, pars. 9-1(a)(1), (2)). Following a jury trial, he was convicted of murder and sentenced to an extended term of 55 years' imprisonment. Defendant appeals from the judgment of conviction and sentence.
The relevant facts reveal Glen Ellyn police officer Roger Lilly found Brenda's car in the parking lot of an apartment complex located across the street from the College of Du Page. Brenda had been missing since she left the college at 9:30 p.m. the night before. The passenger side window was shattered and there were five holes in the interior of the passenger door. Brenda's body was found in the trunk. The autopsy revealed that she had been shot five times and died from internal bleeding caused by the shooting.
On April 13 and 14, Laurie Moake and Arlene Grosso, who both worked at the apartment complex where Brenda's car and body were found, received two telephone inquiries concerning the location of the car. They then contacted the police and consented to having a wire tap placed on their phone. The first recording was made around 12:30 p.m. on April 14, 1983. The police told Moake and Grosso to tell the caller that the car had been towed to Midwest Auto. The recorded telephone conversations were later played during defendant's police interrogation and during the trial.
After defendant's arrest, he filed a number of motions, including, "Motion to Suppress Eavesdropping Recordings and Fruits Thereof," and "Motion to Suppress Confessions and/or Admissions."
Du Page County Circuit Court Judge Charles Norgle testified at the hearing on the motion to suppress eavesdropping recordings that on Saturday, April 16, 1983, he received a call at his home from Assistant State's Attorney Peter Dockery concerning an eavesdropping order. The judge had no personal recollection of the substance of their conversation, but remembered telling Dockery that there was a sufficient basis for approving the emergency use of an eavesdropping device and that Dockery should bring the "proper document" to Norgle's courtroom on Monday. No notes were made of this telephone conversation. Dockery was not asked to swear to his representation made over the telephone.
Judge Norgle also stated that while he had no independent recollection as to the time he gave oral approval for the eavesdropping device on Saturday, April 16, the notice he signed on Monday, April 18, put the time he gave oral authorization as being 12:20 p.m. on April 16.
Assistant State's Attorney Dockery testified that on April 16, he received a call from Police Chief James Mullaney around 10 a.m., who related the facts about the murder investigation including the tape recorded telephone conversations at the apartment complex where the car and body were found. Dockery then called Assistant State's Attorney Thomas Knight, who told him that the period during which judicial approval had to be obtained was about to expire. Dockery then attempted to contact several judges to obtain approval and around 12:15 p.m. reached Judge Norgle. The remainder of his testimony corroborated that of Judge Norgle's.
Knight also testified at the motion that police officer Robert Velon contacted him around noon on Thursday, April 14, and told him that the apartment complex had received phone calls from one caller who had been asking about Brenda's car. Knight did not speak to Dockery until Saturday, April 16.
On Monday, April 18 at 1:30 p.m., Judge Norgle started his court call. At 2 p.m., the State's witnesses appeared, and, Knight, Velon, Laurie Moake and Arlene Grosso swore before Judge Norgle that the information in their affidavits was true. The judge entered an order at 2:23 p.m. approving the use of the eavesdropping device.
After hearing argument, the court noted the "strong public policy" that eavesdropping would not be tolerated unless it was approved by the court pursuant to statute. The court continued that while "there is some lack of memory and some slight dispute as to the exact time sequence involved," the oral application was made 10 minutes before the expiration of the 48-hour time limit imposed by statute. The court concluded that the failure to file a written application did not violate the spirit and intent of the statute to warrant suppression.
Dr. Lyle Rossiter, a psychiatrist, who examined defendant on the day of his arrest at the assistant State's Attorney's request, testified at the motion to suppress admissions. His interview of defendant, which lasted an hour and a half, revealed that defendant looked chronically depressed and weary. Rossiter testified further that defendant's answers to his questions were relevant and coherent and that he appeared alert and well-oriented. Rossiter determined that defendant's moderate depression could be a symptom of a number of mental illnesses, but he did not determine whether there was any indication of a psychosis, neurosis, or personality disorder. Such a determination would require more examining and testing. However, Rossiter did not detect anything that would impair defendant's ability to understand his rights.
Dr. Robert McFarland, a clinical psychologist, administered a number of tests to defendant during three sessions totaling 6 1/2 hours. As a result of these tests and a review of defendant's record, McFarland concluded that defendant had borderline intellectual functioning. Defendant's IQ was 74, which placed him in the bottom 3 or 4% of the population. McFarland concluded that defendant was unable to intelligently exercise his Miranda rights. In reaching his opinion, defendant was given three tests personally devised by the doctor to assess defendant's understanding of his Miranda rights. Defendant received a score of 21 out of 40 points in defining 20 words taken from the Miranda warnings. On the second test, defendant was able to explain each Miranda sentence without difficulty. Only on the third test, in which defendant was asked to explain the implication of the Miranda principles, did the psychologist feel that defendant's answers were unsatisfactory.
Officer Mullaney testified that he advised defendant of his Miranda rights at the time of his arrest. Defendant told ...