APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT
525 N.E.2d 112, 170 Ill. App. 3d 839, 121 Ill. Dec. 306 1988.IL.788
Appeal from the Circuit Court of Calhoun County; the Hon. Cecil J. Burrows, Judge, presiding.
JUSTICE KNECHT delivered the opinion of the court. LUND, J., concurs. JUSTICE McCULLOUGH, Concurring in part and Dissenting in part.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE KNECHT
Following a bench trial, the defendants, Bruce C. Bradney (Bruce) and Linda Bradney (Linda), were convicted of residential burglary (Ill. Rev. Stat. 1985, ch. 38, par. 19-3) and theft over $300 (Ill. Rev. Stat. 1985, ch. 38, par. 16-1). They appeal, contending: (1) evidence concerning the recovery of various items of stolen property from Linda Bradney's automobile should have been suppressed because the stolen property was not seized pursuant to a search warrant or as part of a valid inventory search; (2) the State did not disprove their affirmative defense of voluntary intoxication beyond a reasonable doubt; (3) the results of electrophoretic analysis of dried bloodstains found at the scene of the offenses and in Linda Bradney's automobile were improperly admitted; (4) the State did not establish an adequate foundation for testimony concerning the frequency of blood characteristics in the general population; (5) the State did not establish a proper chain of custody for blood specimens drawn from the defendants; (6) in imposing sentence, the circuit court did not give proper consideration to various mitigating factors; and (7) they are each entitled to 592 days of sentence credit for the time they were incarcerated after their arrests and prior to being sentenced for the present offenses.
The victims of the offenses of which the Bradneys were convicted were Ralph and Genevieve Moses, who reside in a rural area of Calhoun County near Golden Eagle. Upon returning home at approximately 8:30 p.m. on the evening of June 8, 1985, after spending the afternoon and early evening in Alton, the Moses discovered their home had been burglarized. On the following day, Ralph Moses talked with neighbors and discovered that during the previous afternoon, an unfamiliar brown automobile had been seen on both the Moses' property and on the nearby property of Marvin Gelber. It was determined that automobile belonged to Linda Bradney. On the basis of this information, Linda's automobile was seized in Alton on June 10, 1985. Discovered in Linda's automobile was personal property which had been stolen from the Moses' residence. Marvin Gelber made an in-court identification of the Bradneys as the occupants of the unfamiliar brown vehicle. The above evidence, together with evidence supporting an inference bloodstains found in the Moses' residence on the evening of the burglary may have consisted of Bruce's blood, constituted the principal links in the chain of circumstantial evidence which the State presented in support of the charges against the Bradneys. Additional evidence pertinent to the issues presented for review will be set out in relevant portions of this opinion. I. Search of Automobile
As a preliminary matter, we note in determining whether the circuit court properly ruled upon the Bradneys' motion to suppress evidence, we may consider evidence presented at their trial, in addition to that presented at the hearing on their motion to suppress. (People v. Braden (1966), 34 Ill. 2d 516, 216 N.E.2d 808.) In view of our decision with respect to this issue, the evidence introduced at the Bradneys' bench trial is of greater relevance than that introduced at the hearing on their motion to suppress evidence.
At Bradneys' bench trial, Mary Ellen Freidel testified she is related by marriage to the Moses, and lives about a half-mile down the road from the Moses' residence. On June 8, 1985, she and two of her small children left their home at about 4:30 p.m., in order to go to church in Grafton. On their way to Grafton they passed the Moses' residence and noticed a car backed into the Moses' driveway. The car was parked at a point closer to the Moses' residence than guests of the Moses normally park. The back of the car was open. Freidel described the automobile as "a small, brown, older model car." Upon hearing of the burglary of the Moses' residence on the following morning, Freidel supplied Genevieve Moses with information concerning the vehicle which she had seen in their driveway on the previous afternoon.
On cross-examination, Freidel stated she did not immediately call the police when she saw the car in the Moses' driveway because she at first thought it belonged to one of the Moses' grown children. She acknowledged the brown car could have been in the Moses' driveway for some reason other than the burglary, and the burglary of the Moses' residence could have occurred before or after she saw the brown car in the Moses' driveway.
Marvin Gelber, a resident of Creve Coeur, Missouri, testified he owns a farm about 1 1/2 miles from the Moses' residence. Gelber was at his farm on the afternoon of June 8, 1985. At approximately 3:45 or 4 p.m. on that afternoon, one of his workmen called Gelber's attention to the presence of strangers on his property. Gelber proceeded to the entrance of his farm, where there is a small, white four-room house which was at that time unoccupied. There he saw a light brown two-door Pinto hatchback automobile. Also present were a white woman with straight dishwater-blond hair and a white man with a small thin mustache. Gelber inquired what they were doing there, and they replied they wanted to rent the white house. Gelber stated the house was not for rent and said there was no "for rent" sign, but the couple insisted they wanted to rent the white house. Gelber thought this was odd, and jotted down the license plate number of the brown automobile as it was backing up. On the following day, Gelber informed Ralph Moses of the previous day's incident involving the strangers on his property, and also provided Moses with the license plate number of the brown Pinto automobile which had been on his property on the previous day. Gelber made an in-court identification of the Bradneys as the strangers he had seen on his property on the afternoon of June 8, 1985.
Ralph Moses testified that on the day following the burglary of his residence -- June 9, 1985 -- he was informed Mary Ellen Freidel had seen a car in the Moses' driveway between 4:30 and 5 p.m. on the previous day. He subsequently talked with Freidel. He also talked with Gelber, and Gelber gave him the license number of the brown car he had seen on his property on the previous day. After obtaining the license plate number from Gelber, Moses called the Calhoun County sheriff's department and requested a check be run on that number.
Calhoun County sheriff Richard Meyer testified the license plate number which Gelber wrote down and which Moses relayed to the sheriff's department was for a vehicle registered in the name of Linda Bradney. On June 10, 1985, Meyer turned that information over to the Alton police department because the "[license] plate number come back [ sic ] to Alton area."
Detective Sergeant Raymond H. Galloway of the Alton police department testified on the basis of information the Bradneys were wanted by the Calhoun County and Madison County sheriff's departments, he, on June 10, 1985, issued a dispatch to the effect the Bradneys were to be arrested. The Bradneys were arrested on the same day, and their Ford Pinto automobile was towed to the Alton police department.
Sergeant Don Lovell of the Alton police department testified that on June 10, 1985, he received information from Sergeant Galloway the police were seeking a brown Pinto hatchback automobile, and Bruce and Linda Bradney were being sought with reference to that automobile. Lovell kept the Bradneys' automobile under surveillance for a brief period of time, observed the Bradneys enter the vehicle, and followed the Bradneys for several blocks. He was preparing to stop the Bradneys when they pulled over.
When the Bradneys exited their vehicle, Sergeant Lovell placed them under arrest. He transported Linda to the police station, and another officer transported Bruce Bradney to the station. Linda Bradney's automobile was towed to the police station and secured in the basement garage.
Mary Ellen Freidel further testified that on June 10, 1985, Trooper Thomas Jacobs transported her to the Alton police department, where she identified a vehicle which she saw in the police garage as that which she had seen at the Moses' residence on the afternoon of June 8, 1985.
Sheriff Meyer stated he was present while items were removed from the Bradneys' vehicle at the Alton police department. He thought Ralph Moses identified items as they were removed from the vehicle.
Ralph Moses testified that on June 10, 1985, he was summoned to the Alton police department, where he was met by Sheriff Meyer, Sergeant Galloway, and another officer with whom he was not familiar. At the police department, Moses saw a brown Ford hatchback automobile bearing the license number which Gelber had provided him. While Moses was at the police department, the brown Pinto hatchback was searched by Galloway, assisted by an individual whom Moses did not know. Among the items discovered in the automobile were cameras, jewelry boxes, and binoculars which were among the items missing from the Moses' residence. The car also contained items which did not belong to the Moses.
On cross-examination, Moses testified before Linda Bradney's automobile was opened, one could see duffel bags and a suitcase, which were closed, through the glass. As items were removed from the car's hatchback, Moses looked at them and identified some items as being his.
Trooper Thomas F. Jacobs of the Illinois State Police stated that on June 10, 1985, he transported Mary Freidel and her small daughter to the Alton police station to enable them to identify a vehicle which the Alton police department had impounded. The impounded automobile was a light brown 1975 Ford Pinto. Freidel identified that vehicle in Jacobs' presence. Jacobs personally viewed the vehicle and observed one suitcase and two bags in the vehicle's back compartment. These articles were still in the vehicle when Mary Freidel identified it. Jacobs further testified that after Freidel identified the vehicle, Ralph Moses looked into the automobile's back glass, hesitated a moment, saw a brown suitcase in the back of the vehicle, and said, "Hey, that looks like my suitcase." Sergeant Galloway opened the vehicle so Moses could get a better look at it, and Moses said, "That's my suitcase." Galloway then opened a bag, and a camera was immediately exposed. Ralph Moses said, "[There's] my camera."
Sergeant Galloway testified that when Linda Bradney's vehicle was brought to the police department, he, Sergeant Lovell, Sheriff Meyer, and Officer Hickman were present. Mary Freidel and her daughter arrived later. Galloway was present when the Freidels examined Linda Bradney's car and identified it. According to Galloway, Linda Bradney's vehicle was a hatchback, and one could see into the large rear back window very plainly. Ralph Moses looked into the vehicle's rear window and said, "[That] looks like my suitcase." At that time, Moses was not able to see any of the items inside the suitcase. Galloway then proceeded to open the suitcase and duffel bags which were in the rear section of Linda Bradney's vehicle. Upon Galloway opening one of the duffel bags, Moses stated, "[That's] my camera." Galloway then took the articles found in Linda Bradney's automobile to an investigation room, where he "inventoried the items out on the table." Galloway removed the suitcase and duffel bags from Linda's vehicle because, "I had merchandise taken from the Calhoun County burglary."
Elmer Hickman, a patrolman with the Alton police department, testified he accompanied Linda Bradney's vehicle from the location of its seizure to the Alton station. When he turned the vehicle over to Sergeant Galloway in the basement of the police station, it contained suitcases, duffel bags and other items.
On August 9 and 13, 1985, Bruce and Linda Bradney filed motions to exclude evidence, in which they alleged their constitutional rights under the United States and Illinois Constitutions were violated by a wrongful seizure of their persons and Linda's automobile. At the hearing on these motions, the State contended the Bradneys were properly arrested and Linda's automobile was properly seized on the basis of probable cause to believe the Bradneys were guilty of residential burglary. The State further argued Linda Bradney's automobile was searched as a result of an inventory of the vehicle and pursuant to a lawful arrest. The Bradneys' attorneys argued the removal of items from Linda's automobile constituted an illegal search and seizure as opposed to a valid inventory search. They further argued (1) the search of Linda Bradney's automobile was not incident to an arrest, (2) no exigent circumstances which would have justified a warrantless search, such as the imminent destruction of evidence, were present, and (3) the plain view doctrine was inapplicable because there was no way of knowing what was in the duffel bags until the contents thereof were examined.
In its order denying the Bradneys' motions to exclude evidence concerning the items found in Linda's automobile, the circuit court found a search and inventory of the vehicle was performed without the benefit of a search warrant. The court further found two duffel bags and a suitcase were in plain view through the hatchback window of Linda's automobile, and Sergeant Galloway indicated Ralph Moses spotted a suitcase which Moses thought belonged to him. Relying on the facts the Bradneys were properly arrested for burglaries in Calhoun and Madison Counties, and two duffel bags containing unknown articles together with a suitcase at least tentatively identified by a victim were visible in the back of Linda Bradney's automobile, the court concluded the police had reasonable grounds to believe Linda's vehicle contained the fruits of a burglary committed in Calhoun County. Relying on United States v. Ross (1982), 456 U.S. 798, 72 L. Ed. 2d 572, 102 S. Ct. 2157, the court held the fact the stolen property was recovered from containers was immaterial. The court further held the fact the search was not conducted immediately upon seizure of Linda's automobile was of no consequence in view of the Supreme Court's decision in United States v. Johns (1985), 469 U.S. 478, 83 L. Ed. 2d 890, 105 S. Ct. 881. Also, the court held Linda's automobile was properly searched as a result of an inventory of the items contained in the vehicle.
On July 15 and 16, 1986, Bruce and Linda filed motions for reconsideration of the circuit court's decision with respect to the admissibility of evidence concerning the items found in Linda's automobile. The basis for this motion was some of the law enforcement officers who testified for the State in the present case testified at a Madison County trial involving the Bradneys to the effect no inventory search of Linda's automobile was performed at the Alton police department on June 10, 1985. At a hearing on these motions, the State's and the Bradneys' arguments centered on the question of whether the June 10, 1985, search of Linda's automobile was a valid inventory search. The court denied these motions, holding an inventory search of Linda's vehicle was performed on June 10, 1985. The court also noted, with respect to its ruling on the Bradneys' previous motions to exclude evidence, "the inventory rationale was not the only reason for not suppressing the seizure," and found "the arresting officers had information which would lead them to reasonably believe that [Linda's] vehicle was transporting contraband."
The arguments of both the Bradneys and the State as to the question of whether the circuit court should have suppressed evidence stolen property was discovered during the search of Linda's automobile concentrate on the issue of whether the items stolen from the Moses' residence were discovered during a valid inventory search of Linda's vehicle. Additionally, the State contends Linda's automobile was properly seized, since at the time the automobile was impounded, the Bradneys were suspects in residential burglaries. The State also argues a search warrant for the Bradney's automobile could not have been obtained since it was not certain it contained stolen items (the burglary having occurred two days earlier), and the police thus could not have stated with specificity the items for which they would be searching. In their reply argument, the Bradneys contend the Moses could easily have described the items missing from their home with sufficient specificity to enable them to be listed on a valid search warrant.
Although the focus was on the issue of whether the police performed a proper inventory search of Linda's vehicle, we believe the question of whether the police had probable cause to believe Linda's vehicle contained stolen property was sufficiently presented in the circuit court proceedings to enable us to consider that issue on appeal. We conclude the police properly searched Linda's automobile on the basis of probable cause to believe it contained stolen property. Therefore, we need not consider whether the police performed a valid inventory search of Linda's vehicle. Also, since the Bradneys did not in their opening brief assert the initial seizure of Linda's vehicle violated their constitutional rights, we need not consider whether the police acted properly in seizing Linda's vehicle before it was towed to the Alton police station. See 107 Ill. 2d R. 341(e)(7) (points not argued in appellant's opening brief are waived).
Observation of that which is in plain view does not constitute a search. (People v. Davis (1965), 33 Ill. 2d 134, 210 N.E.2d 530.) The viewing of items contained in an automobile from a location at which the person observing the objects has a lawful right to be is not a search of the vehicle. (People v. Exum (1943), 382 Ill. 204, 47 N.E.2d 56.
Probable cause for a search exists where, on the basis of all known circumstances, "there is a fair probability that contraband or other evidence of a crime will be found in a particular place." (Illinois v. Gates (1983), 462 U.S. 213, 238, 76 L. Ed. 2d 527, 548, 103 S. Ct. 2317, 2332.) Once the police have probable cause to believe an automobile contains contraband or stolen property, they may search any containers found in areas of the vehicle which they have probable cause to believe may contain contraband or stolen property. (United States v. Ross (1982), 456 U.S. 798, 72 L. Ed. 2d 572, 102 S. Ct. 2157; United States v. Caroline (D.C. Cir. 1986), 791 F.2d 197.) Some Federal courts have limited the Ross decision to the extent police may not search an entire vehicle if they have probable cause to believe only a specific container within the vehicle holds contraband and have no basis for believing a search of other areas of the vehicle may turn up contraband. In such situations, a warrant is required in order to search the suspect container. (E.g., United States v. Williams (D.C. Cir. 1987), 822 F.2d 1174; United States v. Mazzone (7th Cir. 1986), 782 F.2d 757, cert. denied (1986), 479 U.S. 838, 93 L. Ed. 2d 84, 107 S. Ct. 141.) If the police have probable cause to believe an area of an automobile contains contraband or stolen property, the fact they focus their search on a specific container or containers found within that area is of no consequence. McKinney v. State (1987), 184 Ga. App. 607, 362 S.E.2d 65.
A search of a properly seized automobile premised on probable cause to believe it contains contraband need not occur immediately upon seizure of the vehicle. Rather, the police may remove the automobile from the scene of its seizure and search it and closed containers found therein at a different location. United States v. Johns (1985), 469 U.S. 478, 83 L. Ed. 2d 890, 105 S. Ct. 881; United States v. Weber (11th Cir. 1987), 808 F.2d 1422.
In the present case, Mary Freidel identified Linda Bradney's automobile as the vehicle which she saw at the Moses' residence on the day it was burglarized. Additionally, law enforcement officers were aware Marvin Gelber had on the day of the burglary seen the same vehicle on his property, which is located near the Moses' residence, under highly suspicious circumstances.
Ralph Moses did not testify he identified a suitcase in Linda Bradney's automobile as belonging to him before the vehicle was searched. Nevertheless, both Detective Galloway and Trooper Jacobs testified Ralph Moses (while looking into Linda Bradney's automobile from a vantage point at which he had a lawful right to be) made a statement to the effect, "[That] looks like my suitcase" before the police searched the vehicle. The circuit court specifically relied upon this uncontroverted facet of Sergeant Galloway's testimony in holding the police had reasonable grounds to believe Linda Bradney's automobile contained fruits of a crime prior to searching it. This portion of Sergeant Galloway's testimony is corroborated by the testimony of Trooper Jacobs of the Illinois State Police. Trooper Jacobs' only role in the investigation of the burglary of the Moses' residence was to transport Mary Freidel and her daughter from their Calhoun County home to the Alton police department and back, so they could view Linda Bradney's vehicle at a time when the Calhoun County sheriff's department was apparently shorthanded. Thus Jacobs was for practical purposes an unbiased and impartial witness to the events leading up to the search of Linda Bradney's automobile.
Because Ralph Moses tentatively identified a suitcase in Linda Bradney's automobile as belonging to him and the vehicle had been seen in proximity to the time and place of the burglary of the Moses' residence, the police had probable cause to believe property stolen from the Moses' residence was located throughout Linda's automobile and to search any containers which they found in the vehicle, including the duffel bags in which property stolen from the Moses' residence was discovered (see Mazzone, 782 F.2d 757 (police who observed what they believed were drugs being handed to occupants of van and car had probable cause to believe searches of all areas of those vehicles might turn up additional drugs, drug paraphernalia or proceeds of other drug sales)). For the above reasons, we hold the circuit court properly denied the Bradneys' motions to suppress the evidence property stolen from the Moses' residence was found in Linda Bradney's automobile. II. Voluntary Intoxication
At the Bradneys' trial, Bruce Bradney testified he began using alcohol at the age of 16. He failed ninth grade because of alcohol usage. As a teenager, he used alcohol as often as he could get people to supply it. Bruce also outlined his drug usage, which began with the inhalation of Benzedrine in 1957 while in the military. At that time Bruce discovered by swallowing inhalers he could consume large quantities of alcohol over a two- to three-day period. When stationed in Germany he took Preludin, a drug which was then legal and cost 35 cents for 20 pills. He stated Preludin is a derivative of Benzedrine and is a powerful amphetamine. While in the ambulance service at Fort Dix he had ample supplies of alcohol and received amphetamines from the Army hospital. At that time Bruce "started soaking them [nasal inhalers] down and injecting them into [his] arms." As a result Bruce has practically no circulatory system left. During his military service, Bruce suffered from memory loss following overindulgence in alcohol and drugs. He has experimented with heroine, cocaine and morphine.
Bruce further testified that on May 29, 1985, he was released from Menard Correctional Center, and Linda drove him to Alton. En route they stopped at a bar near the prison and had "a couple of drinks and bought a six-pack of bottles." From that date through June 8, 1985, Bruce drank and consumed alcohol on a daily basis. At first he only intended to celebrate his release from prison with Linda and their landlady in Alton. However, on the morning following his release, he discovered Linda had just been denied early release from parole. As a result, the couple would have to remain in Madison County instead of moving to Iron Mountain, Missouri, in order to start a new life as they had planned. In Madison County, "people . . . were not particularly happy with us to begin with . . . I knew that it would be just a matter of time before they would find some reason to throw me in jail like they did before. The more I thought about it the more I drank. The more I drank the more I wanted some pills."
Bruce also injected drugs during the period between his release from prison and June 8, 1985, and his house and Linda's car were full of used syringes. Bruce had no memory concerning where he was or what he did on June 8, 1985. Bruce had $500 upon his release from prison, but upon his arrest had only $8 or $9, and Linda had $13.
Linda testified she began drinking at the age of 12 and as a child became intoxicated two to three times per week. She "did uppers and downers" during that time. She first began experiencing blackouts or memory losses as a result of intoxication while a teenager. As an adult she could "drink two or three quarts of Mad Dog 20/20 [Mogan David 40-proof wine]." She further stated she could drink "up to a case and half of beer by [herself]." She drank heavily when she was depressed.
Linda stated that on May 29, 1985, she drove to Menard Correctional Center to pick up Bruce. She brought two six-packs of beer with her, and they stopped on the way home to buy Mad Dog wine . From then until June 8, 1985, she consumed alcohol in the form of Southern Comfort, Mad Dog wine, beer, gin, and rum, and became intoxicated on a daily basis. She also consumed Placidyl and Valium pills during the same period. Linda stated she has no present memory of what happened on June 8, 1985.
On cross-examination, Linda stated she remembered last consuming drugs and alcohol on May 30, 1985. When asked whether she recalled consuming any drugs or alcohol after that date, she replied, "[Only] my apartment when I woke up is nothing but beer cans and empty wine bottles."
The Bradneys also presented an evidentiary deposition of Dr. Robert Carroll, a physician specializing in neuropsychiatry. Approximately 10% to 20% of Dr. Carroll's practice is devoted to alcohol and drug treatment.
Carroll testified as to the effects of alcohol and Valium on the human mind and body. He was then asked hypothetical questions concerning a hypothetical man possessing Bruce's characteristics, who had consumed the amount of alcohol Bruce claimed to have consumed during the 10-day period preceding and including June 8, 1985. When asked whether, at the tail end of such a drinking spree, the hypothetical man's ability to reason would be impaired, Carroll responded:
"I would say that his ability to reason would be impaired, although, all functions of, all brain functions, may not be impaired; for instance, he may be able to walk, talk, communicate with others, drive a car, appear conscience [ sic ]. Other brain functions, personality functions could be impaired such as judgment, emotion, level of provocation, value system, inhabitions [ sic ]."
Carroll was next questioned concerning a hypothetical woman who consumed the amount of alcohol and drugs Linda claimed to have consumed during the 10-day period preceding and including June 8, 1985. Carroll implied his answers would be similar to those he gave for the hypothetical ...