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03/24/94 PEOPLE STATE ILLINOIS v. DAVID J. BATAC

March 24, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
DAVID J. BATAC, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Du Page County. No. 90-CF-18. Honorable John J. Nelligan, Judge, Presiding.

Rehearing Denied April 26, 1994. Petition for Leave to Appeal Denied October 6, 1994.

McLAREN, Inglis, Geiger

The opinion of the court was delivered by: Mclaren

JUSTICE McLAREN delivered the opinion of the court:

The defendant, David Batac, was charged by indictment with first-degree murder (Ill. Rev. Stat. 1989, ch. 38, par. 9-1(a)(1), (a)(2) (now codified, as amended, at 720 ILCS 5/9-1(a)(1), (a)(2) (West 1992))), and conspiracy to commit first-degree murder (Ill. Rev. Stat. 1989, ch. 38, par. 8-2 (now codified, as amended, at 720 ILCS 5/8-2 (West 1992))) in the death of Anthony Fioti, Sr., who was fatally shot by a crossbow and arrow outside his Villa Park home. Prior to trial, the conspiracy count was dismissed on a motion of the State. Following unsuccessful motions by the defendant to have a search warrant and his statements suppressed, the matter proceeded to a jury trial. The defendant was found guilty of first-degree murder and sentenced to 45 years in prison. Following unsuccessful post-trial motions for a new trial and reduction of his sentence, the defendant timely filed this appeal. We affirm.

Officer James Orlowski of the Villa Park police department testified at trial that he responded to a reported shooting at 204 South Myrtle, Villa Park, shortly after midnight on July 18, 1990, where he discovered the victim lying on the sidewalk near the back porch of the residence. The victim was bleeding and in pain from two wounds in his back and stomach. Orlowski said the victim told him that he had been shot with an arrow and that he pulled the arrow out of his body before the officer arrived. The victim said he was shot while standing on his back porch and that he saw his assailant standing in a garden area directly west of his porch. The victim told Orlowski that he needed blood and oxygen. Orlowski found an arrow that apparently was used in the attack immediately west of where the victim was lying. Orlowski noticed that vegetation in the garden area was trampled.

Officer John Szkolka of the Villa Park police department testified that he also responded to the reported shooting and functioned as backup to Orlowski. Szkolka said he spoke with the victim, who told him that he knew who attacked him but that he would tell the officer the assailant's name later. Szkolka rode with the victim to Loyola Hospital, where the victim died soon after arriving. The victim did not name his assailant before dying. Barbara Fioti, the victim's wife, was present at the scene of the shooting when Orlowski arrived. She was also indicted for first-degree murder and conspiracy in this matter, but she was tried separately, and her case is not part of this appeal.

Officer Raymond Fisher of the Villa Park police department testified at trial that he was assigned to execute a search warrant at the defendant's home at 523 North Craig, in Lombard, on July 31, 1990. Fisher was accompanied by three other officers from the Villa Park police department, a uniformed Lombard officer, and assistant State's Attorney John Elsner. Fisher said he found some letters, a telephone address book, and two photographs. He also found two receipts in a garbage can in the upstairs bathroom, one of which had Barbara Fioti's name written on it and the other bearing the defendant's name. Fisher said he then searched a second bedroom, where he found some torn receipts and items from a mortgage company. Fisher said he also recovered some photos and a manual titled ABCs of Bow Hunting and a copy of Bear Archery '89 magazine. Fisher said he also found an owner's manual for a Bear and Jennings compound crossbow and instructions for the assembly of a devastator front sight for a compound bow. Fisher also found a letter that linked the defendant and Barbara Fioti romantically.

Detective Scott Schroeder of the Villa Park police department testified that he was present when the defendant was arrested and that the defendant was read his Miranda warnings ( Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602) at that time. Schroeder said that when the defendant arrived at the police station, he was searched and again read the Miranda warnings. Schroeder said that on the morning of August 1, 1990, he and Assistant State's Attorney Elsner drove the defendant to the Cal-Sag Canal on U.S. 45, where the defendant claimed he had discarded his crossbow. The item was found there and taken as evidence.

Detective Ralph North of the Villa Park police department testified that the defendant told him he followed the victim for about one month prior to the fatal attack and watched his movements. North said the defendant told him he only wanted to scare Anthony Fioti, intending to wound him but not to kill him.

Detective Sergeant Dennis Lewis of the Villa Park police department testified that he spoke with the defendant shortly after he was arrested on the evening of July 31, 1990. Lewis said the defendant claimed he had nothing to do with the attack and wondered who planted the incriminating evidence found in his home. Lewis said the defendant asked if he could see Barbara Fioti, who was at the police station at the time. Barbara Fioti was brought into the room where the defendant was being held. Lewis said Barbara Fioti told the defendant to tell the truth; then she collapsed in his lap. Paramedics were called to treat her.

Assistant State's Attorney Elsner testified that he was involved in the questioning of the defendant on the day the defendant was arrested, July 31, 1990, and that the defendant initially denied knowledge of the shooting. Elsner said that at about 9:20 that night he was informed that the defendant wanted to make a statement. Elsner said the defendant consented to having the statement taped. The tape of the statement was played for the jury at trial.

In his taped statement, the defendant stated that he had known the victim for about two years and that he had a romantic relationship with Barbara Fioti. The defendant said he did not intend to kill Anthony Fioti, but wanted to "warn" him in an attempt to keep Anthony Fioti from physically abusing Barbara Fioti. The defendant said the abuse by Anthony Fioti against his wife was severe and increased over a period of months to a point that the defendant became worried that, if he did not intercede, Barbara Fioti would commit suicide in despair. The defendant said that Barbara Fioti often took sleeping pills to escape the trauma of abuse by her husband. The defendant said he bought a crossbow because he did not want to handle a gun or rifle. The defendant said he did not confront Anthony Fioti directly because he believed Fioti carried a gun and was a member of a motorcycle gang. On the night he shot Anthony Fioti, the defendant said he followed Fioti to a location thought to be a gang hangout, then drove to the Fioti home to check on Barbara Fioti. When Anthony Fioti came home, the defendant said he took a position in a garden behind the back porch of the Fioti home and aimed the crossbow at Fioti. The defendant said his knees buckled and the crossbow discharged accidentally; the arrow struck Fioti. The defendant said he then left the location and disposed of the crossbow in a river a few days later.

Following Elsner's testimony and the playing of the defendant's taped statement in open court, the State offered several stipulations and then rested its case in chief. The defendant moved for a directed verdict of acquittal, which was denied.

The defendant did not testify at trial. His father, James Batac, testified that the defendant lived with him at the 523 North Craig residence in Lombard for his entire life except for two years after high school. He also testified that, when the defendant was in high school, he had surgery on both of his knees. Following about seven hours of deliberations, the jury returned a verdict of guilty of first-degree murder. Following a sentencing hearing, the trial court sentenced the defendant to 45 years in prison, and this appeal followed.

On appeal the defendant contends that the trial court committed reversible error when it: (1) denied his motion to quash the search warrant for his and Barbara Fioti's homes; (2) refused to suppress statements made by him that were extracted by authorities in contravention of his constitutional right to remain silent; (3) barred him from producing evidence at trial that would have corroborated certain portions of his taped statement and provide a context for the jury to consider whether his actions in shooting the victim were reckless rather than intentional; and (4) permitted the State during its rebuttal closing statement to present argument that nullified a jury instruction on a lesser-included offense. For the following reasons, we find none of these allegations meritorious.

SEARCH WARRANT

The defendant first claims that the trial court should have quashed the warrant to search his and Barbara Fioti's homes because the warrant lacked specificity and was not supported by probable cause. The trial court determined following a hearing that sufficient probable cause existed to support the search warrant, and thus the defendant's motion to suppress was denied. On appeal, the defendant must show that this determination was manifestly erroneous. ( People v. Galvin (1989), 127 Ill. 2d 153, 162, 129 Ill. Dec. 72, 535 N.E.2d 837; People v. Galdine (1991), 212 Ill. App. 3d 472, 478, 156 Ill. Dec. 595, 571 N.E.2d 182.) The trial court's determination, which was set out in a three-page letter to counsel, carefully weighed the matter and the relevant case authority in reaching its determination. We believe the trial court properly denied the defendant's motion.

Probable cause to support a search warrant is found in a probability of criminal activity, not a prima facie showing, ( People v. Stewart (1984), 104 Ill. 2d 463, 475-76, 85 Ill. Dec. 422, 473 N.E.2d 1227), taking into account the "totality-of-circumstances" of the particular case. ( People v. Tisler (1984), 103 Ill. 2d 226, 245-46, 82 Ill. Dec. 613, 469 N.E.2d 147.) Affidavits or evidence presented in support of the warrant are tested and interpreted in a commonsense and realistic manner. ( People v. Parker (1968), 42 Ill. 2d 42, 45, 245 N.E.2d 487.) Courts that review a determination of probable cause are not to be unduly technical, but must consider the probabilities based on practical considerations of everyday life. People v. Thomann (1990), 197 Ill. App. 3d 488, 495, 143 Ill. Dec. 813, 554 N.E.2d 748.

The United States and Illinois Constitutions, as well as Illinois legislation and case law, require that a search warrant be supported by probable cause and describe with particularity the place to be searched and the persons or things to be seized. (U.S. Const., amend. IV; Ill. Const. 1970, art. I, section 6; Ill. Rev. Stat. 1989, ch. 38, par. 108-7 (now 725 ILCS 5/108-7 (West 1992)).) Our supreme court has held that the probable cause requirement for a search warrant has two dimensions: facts must be related that would cause a reasonable person to believe that a crime has been committed, and those facts must lead a reasonable person to believe that evidence of the crime will be found in the place to be searched. ( People v. Wolski (1980), 83 Ill. App. 3d 17, 21, 38 Ill. Dec. 297, 403 N.E.2d 528.) The degree of particularity required must be determined on a case-by-case basis ( People v. Allbritton (1986), 150 Ill. App. 3d 545, 547, 103 Ill. Dec. 936, 502 N.E.2d 83) and depends on the nature of the case and the material or items to be seized. People v. Casillo (1981), 99 Ill. App. 3d 825, 828, 55 Ill. Dec. 206, 425 N.E.2d 1379.

A minute and detailed description of the property to be seized is not required in an affidavit seeking a warrant, "but the property must be so definitely described that the officer making the search will not seize the wrong property." ( People v. Prall (1924), 314 Ill. 518, 523, 145 N.E. 610; see also Allbritton, 150 Ill. App. 3d at 546-47.) A general description of items to be seized is inappropriate if the investigating authorities have a specific description available to them. ( People v. Mitchell (1978), 61 Ill. App. 3d 99, 102-03.) Additionally, a general description will not suffice when items to be seized will impact a first amendment right, as when books and other papers are sought in an effort to determine whether the ideas or opinions expressed in those books and papers may form the basis of a criminal complaint. Stanford v. Texas (1965), 379 U.S. 476, 485, 13 L. Ed. 2d 431, 437, 85 S. Ct. 506, 511-12; People v. Rixie (1989), 190 Ill. App. 3d 818, 828, 137 Ill. Dec. 428, 546 N.E.2d 52.

A review of the affidavit in support of the search warrant in the present matter discloses that there was sufficient specificity to permit the executing officers to search only for clearly identified, relevant material and to avoid an improper rummaging through the defendant's and Mrs. Fioti's homes. The materials sought, despite the defendant's contention on appeal, were not so vaguely described or open-ended as to constitute a "wish list" used by investigators on a fishing expedition for relevant information.

The search warrant in the present matter was issued by an associate Judge on July 30, 1990, on the strength of a six-page affidavit sworn by Officer Robert Deevey, a detective for the Villa Park police department. Deevey's affidavit detailed the particulars of the shooting of Anthony Fioti. Deevey began his investigation the night of the shooting. He said Barbara Fioti told him that her husband had always given her his paycheck to pay the bills of the home but that, in the last two weeks, he had stopped giving her any money, removed all of their money from the family checking and savings accounts, and opened a new account.

Deevey said he found a bank book and deposit slips in Anthony Fioti's truck, showing that he had recently opened a new account and made a $10,000 deposit. Deevey said that Barbara Fioti denied having an extramarital affair.

Deevey also declared in the affidavit that about five days after the shooting he spoke with a co-worker of Barbara Fioti's, who told him that Barbara Fioti was having an "open relationship" with a man named David J. Batac. She had seen the two "necking," and the defendant often came to their place of business to have lunch with Barbara. The co-worker also told Deevey that Barbara Fioti complained on several occasions that her husband beat her. Deevey said the co-worker told him that the defendant declared on one occasion that he "wanted ...


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