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People v. Shah

OPINION FILED JUNE 30, 1986.

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

v.

KISHOR H. SHAH, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. Richard J. Petrarca, Judge, presiding.

JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:

Following a jury trial defendant, Kishor H. Shah, was convicted of voluntary manslaughter for killing his wife and was sentenced to a five-year term of imprisonment. On appeal defendant contends: (1) certain statements made by him should have been suppressed because defendant's emotional condition at the time the statements were made precluded a voluntary, knowing and intelligent waiver of his rights; (2) defendant's sentence was excessive.

We affirm.

Defendant does not challenge the sufficiency of the evidence adduced at trial. That evidence, which included the inculpatory statements at issue, established that during a violent fight between the defendant and his wife she fell down their basement stairs, sustaining severe head injuries which caused her death over one month later. At the ensuing trial the jury found defendant not guilty of murder, but guilty of voluntary manslaughter.

We first consider defendant's contention that the trial court should have suppressed certain statements made by him. The statements at issue were made: (1) to a fireman and a paramedic at defendant's home on the morning of the occurrence; (2) to Sergeant Gary Konzak later that morning at defendant's home; (3) to assistant State's Attorney Frank Nowicki at the La Grange police station between 2 and 3 p.m. that same day.

At the hearing on defendant's motion to suppress these statements the following pertinent testimony was heard. Officer Arthur Schwaegerman of the La Grange police department testified that he arrived at defendant's home just before the ambulance crew and he overheard defendant's conversation with the paramedic and fireman. The defendant appeared calm and responded to their questions. Schwaegerman summoned his supervisor, Frank Krebs, to the house. At this time the defendant was seated on the floor. He appeared calm although on occasion he would weep quietly. Krebs advised defendant of his rights, and defendant stated that he understood them. At that time Dr. Jawed Fareed arrived. He and the defendant discussed making medical arrangements for defendant's wife. Defendant's conversation with Fareed was coherent.

Subsequently Sergeant Konzak arrived and, on his instructions, Schwaegerman again advised defendant of his rights. Defendant stated that he understood them. For the next 5 or 10 minutes Konzak questioned defendant, who gave understandable responses to all his questions. Defendant appeared calm and was not crying during this questioning. He was then taken to the police station.

Sergeant Konzak testified that when he arrived he heard the defendant making medical arrangements on the telephone. When questioned the defendant seemed quite calm and gave understandable responses to all questions. He did not cry and was never in a hysterical or emotional state. He did not appear to have any difficulty understanding Konzak.

Konzak saw the defendant again at about 1:30 p.m. at the police station, eating lunch in Konzak's office. He permitted defendant to make several telephone calls to inquire about defendant's wife's condition. In these calls, made to his wife's hospital and to the neurosurgeon who operated on her, defendant conversed about his wife's condition using medical terms. According to Konzak, defendant was very calm. At about 2 p.m. assistant State's Attorney Nowicki arrived, informed defendant of his rights, and took a statement from him. During this half hour of questioning defendant gave understandable responses to all questions. He did not weep.

Nowicki testified that defendant indicated he understood all the rights read to him. He then responded to all questions responsively and clearly. He appeared alert, very calm, and very unemotional. Most of defendant's statement was in narrative form.

The only defense witness who saw or spoke to the defendant during any of the questioning at issue was Dr. Jawed Fareed, a pharmacologist and self-described close friend of the defendant. At about 9 a.m. on the day of the occurrence defendant telephoned Fareed and told him that something disastrous had happened. Defendant was crying, grief stricken, and not "collected." At defendant's request Fareed went to defendant's home, arriving about 9:45 a.m. There he saw the defendant who started crying and repeatedly asked Fareed what was going on and what happened to his wife. Fareed found defendant to be incoherent and totally incomprehensible, making unrelated statements and asking the police what they did when they quarreled with their wives. In Fareed's opinion the responses defendant gave to Sergeant Konzak did not make any sense. Defendant told the police about the incident, but also spoke to them of "irrelevant" things. Defendant was taken to the hospital where he signed a form authorizing an operation on his wife. At the hospital he was leaning against walls, crying, and was in a "very shattered" state. Defendant was then taken to the police station where Fareed spoke to him intermittently until about 2 p.m. Defendant asked Fareed about his wife's condition and whether he knew her surgeon. When Fareed left he observed the defendant to be deep in thought, calmed down, but "still somewhat lost."

Attorney Joseph Spiezer, a friend of the defendant who initially represented him in this matter, testified he first saw the defendant on the occurrence date at about 2:30 or 3 p.m. at the police station. Defendant had been crying and began again when Spiezer greeted him. He was totally unresponsive to questions and was hysterical. Several times he slid off his chair onto the floor. His emotional condition remained unchanged all afternoon. At about 5 p.m. after bond was posted defendant was taken to the psychiatric unit of Loyola University Center, accompanied by Spiezer, Dr. Martin G. Lewis, and Susan L. Stakowski.

Dr. Lewis, also a friend of the defendant, first saw him about 5 p.m. Defendant was sitting cross-legged on the floor in a state of agitation and confusion. (On cross-examination Lewis conceded that he had previously seen the defendant sit on the floor on at least one social occasion and that the behavior did occur with people of defendant's East African origin.) Defendant made a series of incoherent, disjointed remarks. He was extremely unstable and in a confused state. He periodically burst into tears. According to Lewis defendant remained in an agitated, emotional condition for four or five days.

Susan Stakowski, another friend of the defendant, who had accompanied Dr. Lewis to see the defendant at the police station, testified that defendant was distraught and not in control of himself. She was unable to carry on a conversation with him. When she saw him two or three days later he was ...


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