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08/17/88 the People of the State of v. George Duncan

August 17, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT

v.

GEORGE DUNCAN, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

527 N.E.2d 1060, 173 Ill. App. 3d 554, 123 Ill. Dec. 422 1988.IL.1264

Appeal from the Circuit Court of Peoria County; the Hon. James M. Bumgarner, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE STOUDER delivered the opinion of the court. SCOTT and BARRY, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE STOUDER

The defendant, George Duncan was tried for the beating death of Yvette Searle in 1980. The jury returned a verdict of guilty of murder on May 30, 1980. The conviction was affirmed on appeal. (People v. Duncan (1981), 97 Ill. App. 3d 896, 424 N.E.2d 67.) At his trial, the defendant testified in his own defense.

On October 1, 1985, the defendant was granted habeas corpus relief by the United States District Court for the Central District of Illinois. (United States ex rel. Duncan v. O'Leary (C.D. Ill. Oct. 1, 1985), No. 84 -- 2368, aff'd (7th Cir. 1986), 806 F.2d 1307.) The Federal court ruled that the first trial was tainted by a conflict of interest which the defendant had not adequately waived. The court ordered that the defendant be retried for the offense. United States ex rel. Duncan v. O'Leary (C.D. Ill. Oct. 1, 1985), No. 84 -- 2368, aff'd (7th Cir. 1986), 806 F.2d 1307.

On retrial, the defendant filed a pretrial motion to suppress evidence. The motion was granted in part. The prosecution filed a motion in limine for a ruling on the admissibility of the defendant's testimony from his first trial. The court ruled that the testimony could not be used except for impeachment purposes. The prosecution requests that this court review the trial court's order in limine as to the defendant's prior testimony.

On February 19, 1980, the defendant went to his brother Chris' home and asked if someone could be unconscious from 6 a.m. until approximately 2:30 p.m. that same day. Chris, an officer with the Peoria police department, indicated that he did not believe so. The defendant then asked his brother to accompany him to his apartment to look at the body of his girlfriend, Yvette Searle. Chris Duncan then called the police department and advised them he would be late because of family problems. Upon arriving at the apartment, the defendant unlocked and opened the door and let his brother in. Chris Duncan observed the body of Yvette Searle on the bed, partly covered with a blanket. He checked for a pulse and found none. Chris then pulled back the blanket and observed bruises on the victim's body and face. He told the defendant he thought Yvette was dead.

Chris Duncan looked around the apartment and commented that the apartment was a mess. As the defendant began to straighten up the apartment, Chris told him to stop because the room was a crime scene and the lab was going to have to take pictures of the room.

On the advice of his brother, the defendant then drove with his brother to the police station. At the station, the defendant was turned over to Lieutenant Stenson. The defendant was directed to an interview room. Lieutenant Stenson called other officers into his office to discuss returning to the crime scene. On the advice of James Murphy, the police legal advisor, Murphy, Chris Duncan and a number of other officers returned to the defendant's apartment at about 3:30 p.m. A number of items that were in the officers' plain view were collected. Murphy advised against collecting any other items that were not in the parties' plain view without a search warrant.

A search warrant was obtained at 10 p.m. on the same day. However, nothing was seized with this warrant due to inadequate lighting in the defendant's apartment. A second warrant was obtained the following day, at which time a complete search was conducted.

On November 9, 1987, the trial court granted in part the defendant's motion to suppress all the items seized at the apartment during the second entry of Chris Duncan and the other police officers. The court made an exception to this ruling however, holding that the body itself and any photographs taken were admissible. The court also ruled on the the State's motion in limine to determine the admissibility of the defendant's testimony at his first trial. The court ruled the testimony could not be used except for impeachment purposes.

Initially, the people argue that the trial court was in error in holding that the evidence obtained during the second entry into the defendant's apartment was inadmissible. The State's initial justification for the warrantless seizure is that the items seized were in plain view. This theory was argued before and rejected by the trial court. The trial court noted correctly that in order for the plain view exception to the warrant requirement to operate, the officers must lawfully be on the premises. In the present case the police were not legally upon the defendant's property. Although it is correct that Chris Duncan, the defendant's brother and a Peoria police officer, was ...


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