Appeal from the Circuit Court of Cook County; the Hon.
Rosalind M. Crandell, Judge, presiding.
PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
Following a jury trial, defendant was convicted of two counts of concealment of a homicidal death and sentenced to consecutive terms of five years for each count. On appeal, he contends that (1) the trial court erred in denying his motions to suppress (a) evidence relating to the discovery of the bodies and (b) statements he made to the police thereafter, which were obtained in violation of his constitutional rights; (2) the trial court erroneously (a) prevented defense counsel from raising the affirmative defense of compulsion in his opening statement, (b) excluded evidence relating to violent acts committed by and against one of the victims, and (c) gave an improper jury instruction on the definition of compulsion; (3) he was denied a fair trial by certain remarks made by the prosecutors; and (4) the imposition of consecutive sentences was improper.
The charges arose from the discovery by police, on September 3, 1983, of the bodies of Joanne Seaquist, a friend of defendant, and John Kuba, his uncle, in the trunk of Kuba's car in a rental unit of "The Lockup," a self-storage facility in Northbrook, Illinois. Defendant, lessee of the unit, was arrested the following day and charged with concealment of their homicidal deaths.
Prior to trial, defendant filed motions to suppress (a) all evidence relating to the discovery of the bodies and (b) the statements he made to the police following his arrest.
At the hearing on the motion to suppress the evidence, defendant called as witnesses Cook County sheriff's police officers McHenry and Bettiker, who testified, in substance, that when they arrived at The Lockup in response to a call from the manager, Sigel Roush, they saw a white, 1968 Chevrolet inside unit G-10, the door to which had been opened by Roush prior to their arrival. Evidence technicians entered the unit and, without a search warrant, forced open the locked trunk, inside of which they found the badly decomposed bodies of Kuba and Seaquist. Based upon information from Roush that defendant was the lessee of the unit in which the car was found, a complaint was filed and a warrant issued for his arrest. Following argument by counsel, the trial court denied defendant's motion to suppress the evidence, finding that because he did not own the car he lacked standing to challenge the legality of the warrantless search.
At a separate hearing on defendant's motion to suppress statements he made during custodial interrogation, Officer Bettiker reiterated his testimony regarding the circumstances of the discovery of the bodies on September 3, and further testified that defendant was arrested in Iowa City, Iowa, later that night and interviewed by him and Officer Betz the following afternoon. According to the officers, whose testimony was essentially the same, when defendant, whom they had questioned on prior occasions regarding the whereabouts of Kuba and Seaquist, was brought into the interview room at the Johnson County, Iowa, jail, they informed him that the remains of Kuba and Seaquist had been found and that they wished to speak with him about the case. His Miranda rights were read to him from a preprinted form, which he was then given to read. Although he indicated that he understood the warnings, he refused to sign or initial the form acknowledging receipt of them, stating that his attorney had advised him not to sign anything. When asked if he was willing to discuss the case, he replied, "My attorney told me that I shouldn't talk to you," but when the officers inquired whether that meant he did not wish to answer any questions, he replied, "Well, I was told not to talk to you but that doesn't mean I don't want to. You haven't asked me any questions yet. What am I being charged with?" They informed him that he was under arrest for concealing the homicidal deaths of Kuba and Seaquist, and when he denied any knowledge thereabout, they gave him a copy of a statement made by Roush the previous day. At one point while reading it, he commented, "My life is worth more than $98," presumably referring to a comment by Roush that he thought it strange that someone would pay a monthly storage fee of $98 for a car barely worth that amount. Although he agreed to answer many of their questions, on five to seven occasions he refused, specifying as his reason two or three times that he did not wish to respond to the particular question until he spoke to his attorney. Upon each such refusal, they ceased questioning him and began preparing to leave the room, but every time they did so, defendant reinitiated the conversation, usually by asking a question. While alone with Betz, when Bettiker left to get some coffee, defendant "sobbed a little bit." The interview was terminated approximately 10 minutes after Bettiker's return when defendant stated that he no longer wished to talk to them and asked to be allowed to see his girlfriend. Prior thereto, defendant had not, at any time during the 1 1/2-hour interview, expressed any desire to leave the room or to make any telephone calls.
Defendant testified that Officers Bettiker and Betz had questioned him several times concerning the disappearance of Kuba and Seaquist prior to his arrest and knew that he had consulted with and retained trial counsel as his attorney. He acknowledged that he received and understood the Miranda warnings; that he was neither abused nor threatened by either of the interrogating officers; and that he had answered some of their questions. He further testified, however, that although he repeatedly (8 to 10 times) told them that he had been advised by his attorney to remain silent and would not answer any questions without counsel present, they eventually "wore him down" by asking one question after another and causing him to feel he would be kept there until he answered them. Having been awake all night, he was very tired, and also emotionally upset and worried, particularly about his girlfriend a college student whom he had come to Iowa to visit and at one point toward the end of the interview, when Officer Bettiker was out of the room, he began to cry. The only questions he asked concerned the reason for his arrest, how long he would be held in Iowa, his girlfriend's welfare, and whether he would be allowed to see her.
On cross-examination, defendant stated that he had received two or three telephone calls and had placed one prior to making any statements in Iowa; that he had been arrested and questioned by the police on past occasions, including once in relation to an aggravated-battery charge of which he was subsequently acquitted; that each time he refused to answer a question posed by the officers, he explained that he would not do so "without my lawyer present"; and that although they occasionally arose from their chairs and moved about the room, at no time did they terminate the interrogation or prepare to leave. After argument and the presentation of legal memoranda by counsel, the trial court denied defendant's motion to suppress his post-arrest statements, finding that they were voluntarily made after a knowing and intelligent waiver of his constitutional rights.
At trial, Ed Kuba, defendant's uncle and the older brother of John Kuba, testified that defendant and John lived in the Glenview house owned by his deceased father's estate, of which he was the executor. The last time he spoke to his brother was on March 24, 1983, when John, whose hobby was racing cars, called to tell him about a "hot rod" he had recently purchased. On Saturday morning, March 26, he and his wife went to look at the car. As they drove up to the house, they saw John's white, 1968 Chevrolet parked in the driveway, but when asked, defendant stated that John was not home, adding that he had left the house with "a couple of guys" at about 2 o'clock that morning. Upon entering the garage to look at the new car a red Chevrolet Nova he noticed numerous auto parts John had purchased for it strewn about the floor and that the engine was running. Defendant explained that he had taken the car for a "little test spin." On March 28 or 29, he asked defendant about certain rumors that he had sold some of the parts for John's new race car. Defendant responded that he did so because John owed him some money. When he and his wife arrived at the Glenview house, at about 8:30 a.m. on Easter Sunday, April 3, defendant met them at the door, fully awake and clothed, and once again stated that he had not yet heard from John. The following day, Monday, April 4, Ed returned to the house while defendant was away to "look around." The 1968 Chevrolet was still in the driveway, and after determining that none of John's other personal possessions or clothing were gone, he called the Cook County sheriff's police to report his brother missing. At the request of the police, who informed him that Joanne Seaquist was also missing, he returned to the house on April 5 or 6 to look for items that might belong to her. Although he did not find any, he did notice what appeared to be dried blood on the garage floor and before leaving, he scraped some of it into a folded paper which he later gave to Officer Peterson of the Vernon Hills police department. He also noticed that the Chevrolet was no longer in the driveway. Defendant later told him that it had been stolen but that he had not reported the theft because it was not his car. A few days later, he gave the Cook County sheriff's police written permission to search the house.
On cross-examination, Ed Kuba admitted to a conviction for attempted theft nine years earlier and also acknowledged that his brother sold cocaine for a living and that it was not unusual for him to leave the house late at night with strangers. He denied, however, that John frequently stayed away from home for long periods of time; that he (Ed) had suggested to Officer Bettiker in a late March conversation that John may have been hiding from unknown persons to whom he owed large sums of money; or that he told the police that John had returned home on Friday, April 1. He stated that, upon information given to him, he told the police that John had returned home on Friday, March 29, but when shown a calendar establishing that March 29, 1983, was a Tuesday, he conceded the inaccuracy of that information.
Gary Campbell testified that he had known John Kuba, with whom he shared an interest in racing cars, for about six or seven years, and that shortly after reading a newspaper report that John was missing, he learned that defendant had been driving the Nova and selling parts John had purchased for it. When he warned defendant that John would be very angry, defendant replied, "Don't worry about it. John's dead."
David Pinter, a supervisor at United Parcel Service (UPS), testified that defendant did not come in to work on Thursday, March 31, and that when he reported for his regular 2:30 to 7:30 a.m. shift the following day, April 1, he appeared to be "kind of shaken up." Defendant told him that he thought that his uncle's body had been found and made some reference to funeral arrangements.
Mrs. J. Seaquist testified that she last saw her daughter, Joanne, at about 1:45 p.m. on Saturday, April 2, 1983, when she drove her to the Marriott Lincolnshire Resort where she worked as a waitress. At about 11 p.m. that night, Joanne called home and left a message with her other daughter, Jennifer, that defendant, whom she had known since childhood, would be driving her home later. The following day Easter Sunday Jennifer called defendant, told him that Joanne had not returned home, and asked if she was with him. Defendant told Jennifer that at Joanne's request, he had driven her to a bar called the Halfday Inn the previous night and had not seen her since. She (Mrs. Seaquist) also telephoned defendant that day, emphasizing the family's concern and their intention to call the police, but defendant again denied any knowledge of Joanne's whereabouts. Several weeks later, she hand delivered a written plea to defendant for his help in locating Joanne, but he told her that there was nothing he could do.
Officer Peter Peterson testified that on April 5, 1983, the day after Joanne's family reported her missing, he interviewed defendant and, two days later, took a written statement from him. In that statement, which was read to the jury, defendant recounted that on Saturday, April 2, he was at home playing pool with his friend Jon Johnson when, at about 8 p.m., Joanne called and asked him to pick her up. He and Johnson arrived at the Marriott sometime between 11 p.m. and midnight and left, with Joanne, at about 2:30 a.m. Unable to find the bar where they had planned to go, they stopped instead at the Halfday Inn Lounge and, after having one drink, then drove to defendant's house and spent the remainder of the night reminiscing about high school. After Johnson left, at about 5:30 a.m., he offered to drive her home, but on the way, she changed her mind and asked him to take her back to the Halfday Inn because several of her friends frequently met there after finishing their night jobs. He reluctantly agreed, and when they arrived at the bar, she wished him a happy Easter, kissed him goodbye, and then exited the car, waving to him as he drove away. He returned home and slept until late that afternoon. Defendant also related to Peterson that approximately one week earlier, after a chance meeting at the Halfday Inn, his uncle brought Joanne to the house and privately suggested that they both have sex with her, but he refused, explaining to John that Joanne was "not that kind of girl."
Patrick Quillinan, Katherine Owens, and Patty Gaessler, friends of Joanne, variously testified that Joanne, Johnson, and defendant left the bar at the Marriott resort sometime late Saturday night, and that when they questioned him about her subsequent activities, defendant repeated to them what he had earlier told Joanne's family and Officer Peterson.
Sigel Roush, resident manager of The Lockup, where the bodies were discovered, testified that the storage facility contained approximately 400 units of varying sizes and that on April 5, 1983, when defendant inquired about renting a storage space, all but one (G-10) were occupied. Although he explained that the unit was not rentable because cans of cola left by the previous lessee had exploded during the winter, resulting in the spoilage of the syrup, which emitted an extremely bad odor and left stains on the floor, defendant nevertheless stated that he wished to rent the space, and signed a lease for it for the remainder of April. Defendant thereafter submitted rental payments of $98 each month to renew the lease through the end of July, at about which time he (Roush) noticed a very bad odor, unlike anything including the spoiled cola he had ever smelled before, from inside unit G-10. The next time defendant came in to extend the lease, on August 10, he told him about the odor and asked, "What the hell have you got in there?" adding, somewhat facetiously, "It smells like somebody died in there." When defendant responded that there were some old watermelons in the trunk, he (Roush) ordered him to remove them, warning, "Either you get them out or I am going to get them out, but that's got to be cleaned up because we can't rent the [adjoining] unit until you do." Defendant assured him that he would clean the space and paid another three months rent, but upon returning from his vacation two weeks later, his (Roush's) secretary reported that she had not seen defendant and that the odor had become worse. Finally, on September 3, he cut off the lock on the unit and went inside. One of the tires on the Chevrolet stored therein was flat, and the floor was covered with a horrible smelling, sticky, amber fluid which had leaked under the steel wall into the unit G-11. Even though the fluid did not appear to be blood, he nevertheless began to wonder if there might be a body inside the trunk, and, at that point, he closed the door, went back to his office, and called the police to come "to check it out." When the officers arrived, he led them to the unit and reopened the door, whereupon one of them immediately stated, in reaction to the odor, "There's a body in there." Following the removal of the bodies, which he did not witness, he gave a written statement to the police, and, two days later, identified defendant from a photograph as the lessee of unit G-10.
Officer Bettiker testified that when questioned in late April 1983, concerning the disappearance of John Kuba, defendant stated that sometime during the early morning hours of March 26, he was awakened by the sounds of his uncle's footsteps in the kitchen which was directly above his basement bedroom and other persons entering the house. Following a brief conversation, he heard people leaving and neither saw nor heard from Kuba thereafter.
Upon his arrival at The Lockup on September 3, after being notified that an automobile registered to John Kuba had been located there, he observed that unit G-10 was open and that several officers were inside processing the exterior of the vehicle for fingerprints. As he approached, he recognized the odor emanating therefrom as that of a decomposing human body. After checking the facility's rental records, he called his supervisors and then returned to the storage unit where evidence technicians were in the process of forcing open the trunk. Inside, they found the body of John Kuba lying toward the rear of the compartment and the partially clothed body of Joanne Seaquist wrapped in a sheet identified by Ed Kuba later that day as one from his father's house lying on top of him. Following an interview with Roush, an arrest warrant was issued for defendant on charges of concealing their homicidal deaths.
Officer Bettiker then reiterated his suppression hearing testimony concerning the September 4 interrogation of defendant in Iowa City and further testified as to statements made by him in the course thereof. According to Officer Bettiker, when asked why he put the car in the storage locker, defendant blurted out "[m]y life is worth more than a plugged nickel," adding that if they (the officers) had received a telephone call from someone threatening that they "would end up the same as John," they would have done the same thing. In contrast to the statement he made in April, defendant then told them early in the morning of March 26, two persons came to the house in Glenview requesting to speak to his uncle. After allowing them inside, he went down to his basement bedroom to go to bed, but upon hearing a loud argument taking place upstairs, he got up and hid in a crawlspace, remaining there for a considerable time after the arguing had stopped. By the time he went upstairs, everyone, including his uncle, had gone.
On cross-examination, Officer Bettiker acknowledged that in a mid-April conversation, Ed Kuba told him that his brother may have been hiding from persons to whom he owed large sums of money; and that when defendant was asked, on September 4, "Why the girl?" his response was "she shouldn't have been with John the week before" and had been "in the wrong place at the wrong time."
It was then stipulated that John Kuba died from multiple bullet wounds to the chest; that a .22-caliber bullet recovered from the wall of Kuba's bedroom was fired from the same gun as the bullets removed from his body by the medical examiner; that the cause of Joanne Seaquist's death was ligature strangulation; that, when discovered, both bodies were in an advanced stage of decomposition; and that in response to questions as to why he did not dispose of the car, defendant sobbed and said, "I didn't know what to do."
Defendant then testified that after a chance meeting at the Halfday Inn early one morning in mid-March 1983, John brought Joanne Seaquist whom he had not seen in about 1 1/2 years to the house to see him. John repeatedly urged Joanne to model some lingerie he had obtained from a fashion show, but she refused. After talking for nearly three hours, he (defendant) told her that he was very tired from working all night and drove her home.
Defendant then reiterated that portion of the previously summarized statement he made to Officer Peterson a few days after Joanne was reported missing regarding the events of the night of April 2, beginning with her 8 p.m. telephone call from the Marriott resort to their eventual return to his home. Contrary to that earlier statement, however, defendant testified that shortly after Jon Johnson left, John Kuba who had been gone since March 26 returned home, unshaven and disheveled. After a brief conversation with John, he suggested to Joanne that he drive her home, but John interrupted, saying "Don't worry about it." Tired from a recent trip to Florida, he left John and Joanne sitting in the kitchen and retired to his room. Sometime later, he was awakened by the sounds of persons arguing upstairs in loud voices, one of which he recognized as John's. A few seconds later, he heard several gunshots, whereupon he ran across the basement and hid in a crawlspace from which he could hear footsteps and "a commotion" in John's bedroom directly above him. He remained in the crawlspace for about an hour before going upstairs to investigate. As he was going through the house, checking each room for signs of John and Joanne, the telephone rang. When he answered it, the caller said, "You have a problem now. You have to get rid of the Chevy on the driveway." Unsure of what to do, he continued searching the house for some indication of what had occurred. Within half an hour, the same person called again, stating in a threatening manner, "Hey, you son of a bitch, the car's still in the driveway. You better get it out of there or you're going to end up with them." Although frightened by the threat, he did not follow the caller's directive, thus prompting a third call from another man with a much deeper voice, warning him that if he did not move the car, he would "end up dead and * * * be put in the trunk with them." Because he did not know what had happened to John and Joanne and was frightened and confused, when Jennifer Seaquist called, at about 4 p.m. inquiring as to her sister's whereabouts, he told her what he subsequently told the police, i.e., that he had driven Joanne to the Halfday Inn several hours earlier and had not seen her since. The following afternoon, Monday, April 4, he received a fourth telephone call in which he was told, "This is your ...