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March 31, 1994



Petition for Leave to Appeal Denied October 6, 1994.

Murray, Gordon, McNULTY

The opinion of the court was delivered by: Murray

PRESIDING JUSTICE MURRAY delivered the opinion of the court:

After a jury trial, defendant David Biro (Biro) was found guilty of the April 7, 1990, murders of Stephen and Nancy Langert in Winnetka, Illinois. In addition, he was found guilty of intentional homicide of an unborn child, home invasion and burglary. Biro, who was just 16 years old at the time the crimes were committed, was tried as an adult and sentenced to natural life in prison. He now appeals his conviction and sentence, requesting a new trial on the basis of certain alleged evidentiary errors or, in the alternative, a new sentencing hearing. For reasons that follow, we affirm Biro's convictions, but remand for further sentencing.

On the night of April 7, 1990, Nancy Langert, who was three months pregnant, and her husband Stephen, were murdered in their Winnetka townhouse. The contested issue at Biro's trial was whether the evidence indicated that it was Biro who committed these murders, and in the course of doing so, committed the additional crimes of home invasion, burglary and intentional homicide of an unborn child. On appeal, Biro does not challenge the fact that there was sufficient evidence that he committed the crimes. He argues instead that he was denied a fair trial due to the admission of certain evidence which he feels was more prejudicial than probative. He also assigns error tothe court's ruling to disallow certain evidence. Specifically, the issues brought before this court by Biro are: (1) whether he was unfairly prejudiced by the admission of evidence of other crimes or bad acts, (2) whether he was unfairly prejudiced by the State's cross-examination of him and his father regarding a lack of parental supervision, (3) whether his constitutional right to remain silent was impugned by references and comments made by the prosecutor during closing argument, (4) whether the trial court allowed unfounded, hearsay rebuttal evidence to be admitted, (5) whether the trial court erred by refusing to allow Biro's counsel to solicit testimony concerning the course and scope of the police investigation into the Langert murders, which went far afield before focusing on Biro, (6) whether the trial court erred by admitting photographic exhibit # 84 into evidence, and (7) whether it was unconstitutional to impose a mandatory natural life sentence on a minor who had not had the benefit of a transfer hearing pursuant to the Juvenile Court Act.

Before addressing these issues, we shall briefly recount the facts of this case:

On April 7, 1990, Stephen and Nancy Langert went to dinner in Chicago with Nancy's parents, Lee and Joyce Bishop. After dinner, between 10:15 and 10:30 p.m., the Langerts drove the Bishops to their Winnetka home and then proceeded to their townhouse located at 722 Oak Street in Winnetka. This was the last time the Langerts were seen alive. The next day Mr. Bishop found the Langerts' dead bodies in the basement of the townhouse. Stephen had been shot once, in the back of the head, and Nancy had been shot twice, in the chest and in the abdominal region.

Mr. Bishop summoned the police, triggering an intensive police investigation into the murder of Stephen and Nancy Langert. As a result of their investigation, the police learned that a neighbor, Lorraine Rosenberg, whose townhouse shared a common wall with the Langert townhouse, heard a loud noise shortly after 10:30 p.m. on the night of April 7, 1990. Also, at the scene of the crime, the police discovered: that the glass from a sliding glass door at the rear of the Langert townhouse had been cut and the pieces of glass stacked neatly on a welcome mat; that Nancy Langert's purse had been emptied in the middle of the townhouse living room, but that a large amount of cash was left untouched; a spent bullet found on the floor near the door to the basement; a pair of handcuffs found on Stephen Langert's wrist; a single black glove found behind the townhouse; and an overturned metal shelving unit in the basement of the townhouse, which contained what appeared to be some writing in blood.

The intensive police investigation, which continued for two months, generated well over 900 pages of reports. Yet, despite all of the police efforts, they were no closer to finding the Langerts' killer. Then, on October 4, 1990, two New Trier High School students walked into the Winnetka police station and spoke to police sergeant Patricia McConnell. One of those students, Phu Hoang (Phu), revealed that a friend of his, another New Trier student by the name of David Biro, had confessed to him that he had committed the Langert murders. Based upon information from Phu, Biro was arrested and search warrants for David Biro's bedroom were obtained. Executing the warrants, the police recovered a number of articles which circumstantially connected Biro to the murders, including a glass cutter, several pairs of handcuffs, and a Waltham .38 caliber handgun.

At trial, Phu was the State's key witness. He testified that in July of 1990 Biro confessed to him that he murdered the Langerts. In subsequent conversations Biro provided Phu with a number of details regarding the killings which correlated to the actual crime. Although Phu's testimony, alone, was sufficiently damaging, the State was also able to show that the gun found in Biro's room had been stolen by Biro just prior to the murders and that weapons testing revealed that it was the murder weapon. In addition, the State was able to show that, at 9 p.m. on the night the murders took place, Biro had been seen in the vicinity of the Langert townhouse, that the glove found at the scene contained traces of secretions which were consistent with Biro's blood type, and that Biro had in his possession a glass cutter and handcuffs of the same brand found on Stephen Langert.

Biro testified in his own defense, denying that he committed the murders. He admitted stealing the gun and even admitted that it was the gun used in the murders. He claimed, however, that he had given the gun to a friend, Burke Abrams, to sell and that Abrams committed the murders using the gun. Biro further testified that Abrams returned the gun to him at his home at 11 p.m. on the night of April 7, 1990, telling Biro to hide the gun because he had just used it to commit murder.

Biro also admitted that he told several people, including Phu, that he had committed the murders. He claimed, nevertheless, that he had only been joking and that the details of the crime which he had provided to Phu had been obtained from Burke Abrams.

Biro was found guilty of the double murder, home invasion, burglary, and intentional homicide of an unborn child. He was sentenced to imprisonment for his natural life and now brings this appeal.

The first issue raised by Biro is whether he was denied a fair trialby the admission of "evidence of collateral crimes, criminal ideation, and other bad acts." This issue stems from the fact that, at trial, the State produced evidence that Biro broke into New Trier High School on two occasions and stole computer equipment; that Biro told Phu about these burglaries and about a plan to rob a Winnetka bank and kill the employees; that Biro had crime paraphernalia in his bedroom, including a police scanner and tools which could be used for burglary; and that the police found a folder in Biro's bedroom which contained news clippings regarding the Langert murders and other crimes, as well as a handwritten note containing biblical references to Cain and Abel, proclaiming "I kill people."

Biro argues that none of this evidence had any purpose other than to paint him as a person with the propensity to commit crime and, for that reason, it should have been inadmissible. ( People v. McKibbins (1983), 96 Ill. 2d 176, 449 N.E.2d 821, 70 Ill. Dec. 474.) Even where Biro concedes that the evidence might be relevant, Biro claims that the evidence was inadmissible because the probative value was outweighed by its prejudicial effect. People v. Stewart (1984), 105 Ill. 2d 22, 473 N.E.2d 840, 85 Ill. Dec. 241.

The State responds, arguing that all of the contested evidence was properly admitted based upon its probative value, which was not outweighed by its prejudicial effect. If, however, this court should find that the evidence was improperly admitted, the State argues that any error of its admission would be harmless beyond any reasonable doubt.

As a general proposition of law, admission of evidence at trial is a matter left to the sound discretion of the trial court Judge, whose decision will not be overturned on review unless a clear abuse of that discretion is apparent. ( People v. Gonzalez (1991), 142 Ill. 2d 481, 568 N.E.2d 864, 154 Ill. Dec. 643.) Evidence of other crimes or bad acts, though unquestionably inadmissible to show a defendant's propensity to commit crime, is admissible for any number of other appropriate purposes. ( People v. Thingvold (1991), 145 Ill. 2d 441, 584 N.E.2d 89, 164 Ill. Dec. 877.) A trial court's rulings on the admission of evidence, which hinges on its relevancy and its probative value, should be reviewed in context of the circumstances in which the evidence was offered at trial.

This court has reviewed the entire record to understand the manner in which this case unfolded at trial. Having done so, this court feels compelled to comment on the professional manner in which counsel for both the State and the defendant performed. This trial was a textbook example of the step-by-step process of building an overwhelmingly strong case.

With regard to the contested evidence, it is true that much ofit was not relevant to the crimes charged, nor did it add to the State's case. Nevertheless, it is equally clear that the trial court Judge, in each instance, made reasoned decisions regarding the admission of the contested evidence. We can find no abuse of the broad discretionary powers with which the Judge is endowed. Consequently, we find no error in the admission of evidence of which defendant complains on appeal.

The evidence that Biro stole computer equipment from New Trier High School, as well as the evidence that Biro planned to rob a bank, was brought out by the State during redirect examination of Phu, after the State requested a sidebar and the trial court ruled the evidence admissible. In determining the admissibility of this evidence, the trial court took into consideration the fact that defense counsel, when cross-examining Phu, focused on the fact that the Langert murders occurred on April 7, 1990, that Phu first learned of Biro's involvement in the murders during a conversation with Biro on July 28, 1990, but that Phu did not report this information to the police until October 4, 1990. Focusing on this delay, defense counsel attempted to show that it was a function of Phu's lack of belief in the veracity of the information. Defense counsel also attempted to portray Phu as a naive youngster whom Biro enjoyed teasing and Biro as an inveterate prankster who loved to shock people. As a result of this trial tactic, the State argued they should be allowed to elicit Phu's testimony that Biro told him about the New Trier burglaries and that Phu had subsequently seen the stolen computer equipment in Biro's room. The State argued that this evidence was now relevant to show that Biro had told Phu about the murders, not as a joke, but because he had come to trust Phu because Phu had not betrayed earlier confidences. Furthermore, the State argued that Phu's failure to report Biro's New Trier burglaries ...

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