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January 30, 1997


The Honorable Justice Harrison delivered the opinion of the court.

The opinion of the court was delivered by: Harrison

The Honorable Justice HARRISON delivered the opinion of the court:

In the circuit court of Lake County a jury found the defendant, Aldwin McNeal, guilty of three counts of first degree murder (720 ILCS 5/9-1(a)(3) (West 1994)) in the deaths of each of two persons, Cory Gerlach and Perry Austin, and two counts of armed robbery (720 ILCS 5/18-2(a) (West 1994)). Prior to trial defendant's case was severed from that of his codefendant, James Woods. At a separate sentencing hearing, the jury found defendant eligible for the imposition of the death penalty and determined further that there were no mitigating factors sufficient to preclude the imposition of that sentence. The circuit court sentenced defendant to death accordingly and to a concurrent term of 30 years in prison for the conviction of armed robbery of Cory Gerlach. Following a hearing the circuit court denied his post-trial motion for a judgment of not guilty notwithstanding the jury's verdict or for a new trial or a new sentencing hearing. The cause comes directly to this court for review (Ill. Const. 1970, art. VI, ยง 4(b); 134 Ill. 2d R. 603), where defendant presents eight issues for our consideration. For the reasons that follow, we affirm the judgment of the circuit court.

We turn first to defendant's contention that the trial court erred in denying his motion to suppress as physical evidence a handgun recovered during a warrantless search of one of his garbage cans located outside the townhouse in which he resided. Although the armed robbery and murders of which defendant has been convicted occurred on or about April 7, 1994, the defendant was not implicated in these offenses until tests that were performed upon the handgun seized from his garbage can during an unrelated incident on April 20, 1994, indicated that it was the weapon used to shoot Gerlach and Austin. Defendant maintains that the officer's warrantless search of the garbage can and seizure of the handgun violated his fourth amendment rights because he maintained a reasonable expectation of privacy in the contents of the garbage can, which was situated, he argues, within the curtilage of his residence. The can was sitting on grass about two feet from the sidewalk and was leaning against the back of his townhouse, near the back door and, it seems, near a barbecue grill. Marked with the number of his townhouse, the can had to be wheeled to the edge of the alley in order for the garbage collector to empty it of trash.

At the hearing on his motion to suppress the handgun as evidence, the State argued, as it does here, not only that the defendant had no expectation of privacy in the contents of the garbage can but also that there had been exigent circumstances justifying the officer's search of it. In denying the motion, the trial court found that because the garbage can was located so near the sidewalk the defendant did not have a reasonable expectation of privacy in items placed in it. The court made no finding concerning exigent circumstances to justify the search. However, even if we assume, without deciding, that the defendant did have a reasonable expectation of privacy as to the property seized from the garbage can and to the area searched as being within the curtilage of his dwelling, it is clear that the exigencies of the situation justified the officer's warrantless search of the can and his seizure of a paper bag containing the handgun from it.

At the hearing on this motion, Officer Terry Richards of the Zion police department testified that at about 8:50 p.m. on April 20, 1994, he received a call directing him to the alley behind the defendant's townhouse, which was one of four units in the building. He drove a marked squad car and wore a police uniform. Upon his arrival in the alley, he spoke immediately with two females who met him there. The two told him that they had been in the alley with defendant when an argument had ensued between defendant and one of them, Sophia Degraffenreid, in which defendant had punched Sophia in the neck and had thrown her to the ground. Defendant had asked her if she was going to call the police and had told her he was going to his apartment to get a gun. The two then called the police and, when they saw the squad car come into the alley, went back into the alley, approached Officer Richards, and told him about the incident with defendant.

As they did so, the officer stood with his back to the building containing defendant's townhouse. The officer testified that the two then told him that "Aldwin McNeal had just come out, saw the police, dropped a bag into the garbage can and went back into the door real quick." They described the bag as a brown paper one. Officer Richards then walked over to the apartment and the garbage can, which was, as we have said, about two feet from the sidewalk, opened the can, and saw a brown paper bag resting on top of another bag of garbage near the top of the can. He removed the brown paper bag, opened it, and found a loaded 9 millimeter handgun inside. He unloaded the weapon, secured it, and attempted to make contact at the door of 2136 Hebron, which was defendant's address at the time. When he knocked on the door, James Woods and a woman named Andrea Green answered it.

Officer Richards did not search the other of defendant's garbage cans, explaining, "They said he stepped out, opened up the garbage can, set the bag in there, went back inside, so I checked that garbage can." Officer Richards was familiar with this area from his duties as a police officer and knew that children live, as he said, "in that entire block" and that members of the public, including children, use the sidewalk near the garbage can regularly at that time of the evening. The defendant was not arrested concerning any conduct alleged with respect to Sophia Degraffenreid on April 20, 1994.

The physical entry of the home is the chief evil against which the fourth amendment is directed. Payton v. New York, 445 U.S. 573, 585, 63 L. Ed. 2d 639, 650, 100 S. Ct. 1371, 1379-80 (1980). A basic principle of fourth amendment law is that searches and seizures inside a home without a warrant are presumptively unreasonable. Payton, 445 U.S. at 586, 63 L. Ed. 2d at 651, 100 S. Ct. at 1380. The curtilage, that is, the land immediately surrounding and associated with the home, has been considered part of the home itself for fourth amendment purposes, and courts have extended fourth amendment protection to it. Oliver v. United States, 466 U.S. 170, 180, 80 L. Ed. 2d 214, 225, 104 S. Ct. 1735, 1742 (1984). "In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant." Payton, 445 U.S. at 590, 63 L. Ed. 2d at 653, 100 S. Ct. at 1382. Between the intrusiveness of entries to search and entries to arrest no constitutional difference exists. People v. Abney, 81 Ill. 2d 159, 166, 41 Ill. Dec. 45, 407 N.E.2d 543 (1980). "Any differences in the intrusiveness of entries to search and entries to arrest are merely ones of degree rather than kind. The two intrusions share this fundamental characteristic: the breach of the entrance to an individual's home." Payton, 445 U.S. at 589, 63 L. Ed. 2d at 652-53, 100 S. Ct. at 1381.

The State bears the burden of demonstrating exigent need for a warrantless search or arrest. People v. Foskey, 136 Ill. 2d 66, 75, 143 Ill. Dec. 257, 554 N.E.2d 192 (1990). Where the facts and the credibility of the witnesses are undisputed, as here, the question of whether exigent circumstances are present is a question of law, subject to consideration by this court de novo. Abney, 81 Ill. 2d at 168. While each case must be decided on the basis of the facts presented ( Abney, 81 Ill. 2d at 173), factors that this court has considered relevant to a determination of exigency in circumstances involving warrantless entry into a private residence to effectuate an arrest include whether: (1) the crime under investigation was recently committed; (2) there was any deliberate or unjustified delay by the police during which time a warrant could have been obtained; (3) a grave offense was involved, particularly a crime of violence; (4) there was reasonable belief that the suspect was armed; (5) the police officers were acting on a clear showing of probable cause; (6) there was a likelihood that the suspect would escape if he was not swiftly apprehended; (7) there was strong reason to believe the suspect was in the premises; and (8) the police entry was made peaceably, albeit nonconsensually ( People v. Williams, 161 Ill. 2d 1, 26, 204 Ill. Dec. 72, 641 N.E.2d 296 (1994)). Insofar as these factors are relevant to the circumstances involved in Officer Richards' search of the defendant's garbage can, we consider them here, bearing in mind that the fundamental guiding principle is reasonableness, in accord with constitutional provisions governing searches and seizures ( Williams, 161 Ill. 2d at 26). No list of factors bearing on exigent circumstances is exhaustive ( Foskey, 136 Ill. 2d at 75), and these factors are merely guidelines rather than cardinal maxims to be applied rigidly in each case. People v. White, 117 Ill. 2d 194, 216-17, 111 Ill. Dec. 288, 512 N.E.2d 677 (1987). To determine whether the police acted reasonably, the court must look to the totality of the circumstances confronting the officers at the time the entry was made. Williams, 161 Ill. 2d at 26. These circumstances must militate against delay and justify the officers' decision to proceed without a warrant. Foskey, 136 Ill. 2d at 75.

In the instant case, the officer had reason to believe that in his presence defendant was furthering the criminal activity under investigation. Officer Richards engaged in neither deliberate nor unjustified delay during which time a search warrant could have been obtained. Indeed, he acted immediately upon hearing that the defendant had emerged from his residence, seen the police, dropped a brown paper bag into the garbage can, and retreated hastily inside. A crime of violence was involved in which, after having allegedly punched Degraffenreid in the neck and thrown her to the ground, defendant had inquired whether she was going to call the police and had told her that he was going to his apartment to get a gun. This conduct and threat had prompted the call to police. Very shortly after having made this threat, the defendant was observed to engage in behavior consistent with carrying it out. Having probable cause to believe that a crime was being committed and that the garbage can contained evidence of crime, the officer peaceably lifted the lid of the garbage can, removed the brown paper bag, examined its contents, and found a loaded handgun.

Prior to ascertaining the contents of the paper bag, Officer Richards could not know with certainty whether the bag contained the gun defendant had said he was going to get from his apartment or whether defendant might be yet in the process of making good on his promise to obtain it with the result that the complainant and, possibly, her companion as well as others might be in danger of attack with it by the defendant. Although defendant argues that the officer could have assured the safety of passersby had he remained where he was while others attempted to secure a warrant to search the garbage can, such an approach could not have alleviated any danger that during such time the defendant might, in fact, be armed, as he had said he would be, and might injure others. The officer limited his search to the garbage can in which defendant had reportedly deposited the brown paper bag and to the brown paper bag itself, in accord with the principle that warrantless police action must be strictly circumscribed by the exigencies that justify its initiation ( Abney, 81 Ill. 2d at 173-74). We conclude that under the totality of the circumstances confronting the officer at the time the entry into defendant's garbage can was made, the officer acted in a reasonable fashion. Because exigent circumstances justified his decision to proceed without a search warrant, there was no constitutional infirmity in the warrantless search and seizure challenged here. Therefore, the trial court did not err in denying defendant's motion to suppress the handgun as physical evidence.

Some of the evidence adduced at trial includes the following. The bodies of the two victims, who were friends, were found lying face down on the floor in the back of Maude's Pizza in Waukegan at about 3 a.m. on April 8, 1994, when friends of Cory Gerlach noticed that the lights were on and stopped to see if Cory, who was the manager there, was cleaning the restaurant. Both men had been shot in the back of the head, Austin at near contact or very close range and Gerlach at contact range with the bullet passing first through his right hand, which had been raised to the back of his head. Usually Maude's closed between 11:30 p.m. and midnight. Between 11:20 and 11:30 p.m. on April 7, Gerlach bought a six-pack of beer from a neighboring bar and liquor store and visited with the bartender for about five to seven minutes. At about 11:34 p.m. a person parked in front of the liquor store heard a "bang."

Defendant's wife, Regina, identified the handgun retrieved from their garbage can as defendant's. She testified to having entered a plea of guilty to the "felony charge of unlawful use of weapons" in this case because she had bought bullets for defendant on April 5, 1994, at his request. On April 7 defendant and James Woods, who was living with the McNeals at the time, picked her up from work in Waukegan at about 10:45 p.m. in her automobile, a black Mustang that had been blue. Defendant, who was wearing a blue pullover, is taller and thinner than Woods. As Regina McNeal drove, defendant said that he had to make a stop and told her to drive into an alley, which was located near Maude's Pizza. She thought that he was going into the nearby liquor store and stopped the car near it. However, defendant said he was not going into the liquor store and "had to do something that he had to do right then and there." She responded by saying that she wanted him to take her home because she "didn't want to get caught up in his bullshit." When he said he could not take her home, that what he had to do he had to do then, she and defendant argued. Upon his instructions, she backed the car down the alley under a light pole and into a space near a row of stores. As defendant and Woods were getting ready to leave the car, defendant told Woods to "get the stuff." When Regina told defendant she was leaving, he told her to take the car. As defendant and James Woods were getting out of the car and going toward the trunk and as she herself was about to get out of the car, she observed a light on in a third-floor apartment and a woman in the window. Defendant and Woods then went in the direction of a business, and Regina walked north about a mile and a half to the home of defendant's brother Tyron and his wife.

At their home Regina told Tyron's wife, Cecilia, that she and defendant had argued and asked if she could use their telephone to call a cab. After calling the cab, she and Cecilia talked for about 20 or 30 minutes, whereupon defendant arrived and told her to come with him. After calling the cab to cancel it, she left with defendant, who was in her car with James Woods. In the car Regina noticed on the driver's side of the back seat what she thought was some stereo equipment, which she had not seen before defendant's arrival at Tyron's house. On North Avenue defendant, who was driving, stopped by the side of the road, and he and Woods "threw some things out." When the three arrived home, she went to bed, but defendant and Woods went out. She recognized the stereo receiver that was in evidence as one she had first noticed in her apartment about two days after this incident.

On April 23, 1994, officers searched defendant's apartment and found in the living room of it Gerlach's Yamaha stereo receiver, the serial number of which had been scratched off. The model number of the receiver, which was identified as Gerlach's, was the same as that on the owner's manual to such a stereo unit found at Maude's Pizza.

Cecilia McNeal testified that at about midnight or in the early morning of April 8, 1994, defendant's wife came alone to her house, asked to call a cab, and waited for it to arrive. When the defendant arrived later in a "blue" car, came in the house, and asked Regina to come with him, Regina did so. Although Regina called the cab company back upon Cecilia's request, the cab had already arrived.

The parties stipulated that if the taxicab driver dispatched by Lake County Transportation were called as a witness, he would testify that on April 7, 1994, at 11:51 p.m. a telephone request was received for a taxicab to be sent to 2205 North Jackson Street in Waukegan, which is the address of Tyron and Cecilia McNeal, to pick up Regina McNeal, to take her to the 2100 block of Hebron Avenue in Zion, which was the address of Regina and defendant at the time. When the driver arrived at 2205 North Jackson, within five minutes of having received the dispatch at 12:07 a.m., he found no one outside waiting for a cab. However, at 12:15 a.m. the driver received a communication from headquarters canceling the request.

The parties stipulated further that if Marge Ponzio were called as a witness, she would testify that on or about April 9, 1994, she was walking along North Avenue between Yorkhouse Road and Blanchard Road when she found a book of checks with the business name of Maude's Pizza, a check-cashing card bearing the name of Cheryle Brown, who was the owner of Maude's Pizza and the mother of Cory Gerlach, several business cards of Cheryle Brown, a roll of pennies, and other miscellaneous items. The items she found were entered into evidence.

Penny Lee Hill testified that at the time in question she lived in a third-floor apartment in a building connected to Maude's Pizza. A light illuminated the parking lot for her building. At about 11:15 to 11:20 p.m. on April 7, 1994, she was sitting near the window in her living room while watching a movie on television, when she noticed what appeared to be a two-door black car driving down the alley with its lights off. The car proceeded to the other side of a telephone pole and then backed in. After the car backed in, the witness saw two men come away from the car, turn around, and then face the car, as though they were talking to someone. She saw nothing in their hands at that time. The taller and thinner of the two men wore a "bluish-colored coat" with a hood, which he put up as he was looking around. The two men walked in the direction of Maude's Pizza.

The witness called 911 and when the police responded, spoke with them; the police were in the area for about 5 or 10 minutes. A "couple minutes" after the police left, she saw the shorter of the two men walking empty-handed, followed shortly thereafter by the taller of the two carrying what appeared to be "pieces to stereos." The taller man opened the door to the passenger side of the car, moved the bucket seat forward, and put what he was carrying in the back seat. The taller of the two started the car and drove into the alley towards Jackson, not turning his lights on until he reached Jackson where he turned north. At the police station the witness later identified this vehicle, which was Regina McNeal's Mustang. The witness never saw a third person leave the vehicle or walk down the alley. Around the time the two men walked away from the car, however, the witness looked away to watch television for a "couple minutes."

Mary Bearden, who is the mother of defendant's daughter, testified that shortly after 1 a.m. on April 8, 1994, defendant came to her apartment and asked her if she would hold some stereo equipment. When she refused to do so, he left.

Jimmy Gilmore, who had dated defendant's mother, testified that "some days" before the defendant was arrested on April 26, 1994, the witness had asked him what had happened and that defendant had responded, in the words of the witness, "They drove there during the time when he was going to pick up his wife and they went in and something was said or whatever, anyway, they ended up in the back room or something, and that's when he told me that he shot the people." At a later time defendant indicated that he had taken out of Maude's Pizza, Gilmore stated, "some stuff that I had bought from Woods, and I asked him did it come out of there and he said yeah." The witness said that a Yamaha receiver was part of the "merchandise" that he had bought. The defendant indicated further to the witness that he had covered his face when he had gone into Maude's Pizza; that James Woods had been present; that the gun had been "some inches or so" from the victims when defendant shot them; that when he shot the victims, they were lying on the floor and defendant was holding them down with his foot; and that one of the victims, in the words of the witness, "had tried to pull up or ...

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