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07/10/89 the People of the State of v. John Britz

July 10, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

JOHN BRITZ, JR., DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

541 N.E.2d 505, 185 Ill. App. 3d 191, 133 Ill. Dec. 423 1989.IL.1086

Appeal from the Circuit Court of Sangamon County; the Hon. Simon L. Friedman, Judge, presiding.

APPELLATE Judges:

JUSTICE LUND delivered the opinion of the court. McCULLOUGH, P.J., and GREEN, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LUND

On January 26, 1988, defendant John Britz, Jr., was found guilty by a jury sitting in Sangamon County of committing the offense of murder, in violation of section 9-1 of the Criminal Code of 1961 (Criminal Code) (Ill. Rev. Stat. 1987, ch. 38, par. 9-1). He was subsequently sentenced to 25 years' incarceration. He now appeals, alleging (1) he was not proved guilty beyond a reasonable doubt; (2) the court improperly conducted jury voir dire ; (3) impermissible eavesdropping evidence was admitted; and (4) the prosecutor made improper closing argument. We affirm.

Defendant was originally convicted for this offense in April 1983. This court reversed and remanded, finding error with the jury voir dire, and that a statement given on July 12, 1979, should have been suppressed. (People v. Britz (1984), 128 Ill. App. 3d 29, 470 N.E.2d 1059.) Our supreme court affirmed this reversal. (People v. Britz (1986), 112 Ill. 2d 314, 493 N.E.2d 575.) On the initial retrial in May 1987, the jury became hung, and a mistrial was declared. The trial resulting in the present conviction commenced on January 19, 1988.

The State's evidence established that on June 9, 1979, T.M. was found shot to death at a Clark gas station in Springfield. He was discovered lying on his back near the right front tire of his van. His billfold was found lying open near his body without any money in it. Next to the left front tire was a screwdriver, a removed hubcap, and an air hose.

T.M. had a single bullet wound to his upper right shoulder. There was little blood. Expert testimony established he was shot with a .22 caliber bullet which went through his shoulder, both lungs, and his heart. He may have died immediately. If not, he could have moved only a short distance. The muzzle of the weapon would have had to have been held between several inches and two feet of the shoulder. The path of the bullet is consistent with T.M. being in a kneeling or crouched position at the time he was shot.

Bernard Ebel lives in the second house south of the gas station. At 5:30 a.m. on the morning of June 9, 1979, he was sitting on his back porch when he heard one gunshot. A few minutes later, he observed a person cut across the backyard of his neighbor to the north, go to the alley behind his house, and follow the alley south to Fourth Street. He described the person as a white male approximately 17 to 21 years of age, of medium height, and with dark hair over his ears. He did not get a view of the person's face and could not identify him.

Harold Goff was interviewed by police on June 9, 1979. Since he died before trial, his statement was introduced. On June 9 at 5:05 a.m., he was at the Lucky Lady Laundromat where he worked. Next to the building in the parking lot, he saw a white male, 19 to 21 years of age, around 5 feet 8 inches tall. The youth was clean shaven with black hair brushed back on the sides. The youth had a long-barrelled, .22 caliber gun holstered to his side. When asked what he was doing, the youth just shook his head. Goff reentered the laundromat and, several minutes later, noticed the youth was gone. The laundromat was located in the same complex as a Kroger Store and was two to three blocks from the scene of the murder. Goff was later shown a photographic lineup, which did not include a picture of defendant, and picked someone else. In 1982, Goff was again asked to help but stated his eyesight was too bad to identify anyone positively.

On June 11, 1979, Cheryl Penman, a counselor with the Youth Services Bureau, took a call from defendant on the bureau's hot line. The bureau counsels juveniles with drug and alcohol problems. On that day, defendant called four or five times. Around 10 p.m., he called saying he had been doing PCP, also known as angel dust, and had been picked up the night before as a suspect in this murder. He told her he looked a lot like the composite picture and repeatedly asked, "Do you think I could have done it?"

Penman and Bart Quick, a psychologist with the bureau, met briefly with defendant the next day. During that day, defendant called the bureau in excess of 100 times. Once he was upset and told Penman he had killed before and would kill again if she related to anyone the conversation they had about the shooting. Around 6 p.m., he called back. Penman directed Quick to pick up the extension phone. Quick placed his hand over the mouthpiece and listened. They heard defendant say, "I was the one," in discussing the instant offense. Quick opined that, even though defendant was then 19, his actions were more age-appropriate for a 12-year-old.

Approximately two years later, Penman saw defendant in a bar where he was drinking. He told her that he had fooled Detectives Marcia Lange and William DeMarco and had committed the offense.

By June 22, 1979, defendant was a suspect in the crime because he matched the composite of the perpetrator, and he had made the comments to Penman. Marcia Lange, the detective in charge of the investigation, got Penman to reluctantly cooperate with an eavesdropping procedure. An order was entered, and 10 telephone conversations between Penman and defendant, which took place between July 3 and July 13, 1979, were taped.

The conversations revealed that defendant, insisting that Penman misunderstood his earlier comments, continually denied any involvement in the shooting. He exhibited a keen knowledge of guns. He also expressed a fear about police taping his telephone conversations. Penman repeatedly told defendant she was concerned about him, and he should get his problems off his chest. She also appealed to his masculinity, at one point, telling him she found his police involvement exciting. Finally, on July 12, she urged defendant to meet her at the police station and to talk with the police. Late that night, he agreed to do so and, after speaking with the police for an hour, he left.

Around 3 a.m. on July 13, 1979, defendant contacted the police and wished to speak with Lange. She and chief-of-detectives DeMarco met defendant at the station. Defendant did not appear under the influence of drugs or alcohol. After waiving his Miranda rights, defendant stated that he could not remember what he was doing or where he was on the night of the murder. He then stated, "I think I could have been the person who killed him." He went on to say only he and God really knew what happened that night. After the interview, defendant left.

The next day, July 14, around 12:20 p.m., defendant, who was in custody on unrelated charges, again asked to meet with Lange and DeMarco. He stated he remembered being at the Clark gas station on the night of the murder and, also, being at the Kroger parking lot prior to that time. He remembered having a weapon in his possession, which may have been in its holster. He also remembered hearing a shot and running down the alley southward.

On July 15, defendant instigated another interview with Lange and DeMarco. Also present was Detective John Tolley. Defendant stated, "I know I did it." He did not know why, explaining he was messed up on PCP at the time of the shooting. He remembered having a .22 caliber revolver, seeing the victim kneeling by his right rear tire, hearing a shot, and seeing the victim fall face forward. He stated he was four to six feet away from T.M. when he shot him. He remembered taking T.M.'s wallet, removing money, and dropping it near the body. He then fled south down the alley and, eventually, ...


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