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June 4, 1997


Appeal from the Circuit Court of Cook County. 93 CR 9143. Honorable Daniel J. Kelley, Judge Presiding.

Rehearing Denied August 1, 1997. Released for Publication August 21, 1997.

The Honorable Justice Cahill delivered the opinion of the court. Gordon and Leavitt, JJ., concur.

The opinion of the court was delivered by: Cahill

The Honorable Justice CAHILL delivered the opinion of the court:

Thomas Alksnis was convicted of residential burglary after a jury trial and sentenced to 20 years in prison. He raises multiple issues on appeal, from jury selection to sentencing. We affirm.

Before trial, defendant challenged several jurors for cause. He challenged prospective juror Leslie Hyland because she and her father had been victims of crimes. The challenge was denied. Defendant's counsel then used a peremptory challenge to excuse Hyland. Subsequently, defendant told his attorney he did not want to use his last peremptory challenge on Hyland. Defendant's counsel moved to withdraw that peremptory challenge. The trial court refused.

With his peremptory challenges exhausted, defendant challenged Carol Schweig because she had twice been a victim of residential burglary for which no one was apprehended. When asked if she could put those incidents aside and view this case with an open mind, she said "I don't know" and "I would hope so." At defendant's request, the court brought Schweig into chambers for additional inquiry. She said that although she was angry about the burglaries, she could give defendant a fair trial. The trial court rejected the challenge for cause.

Just before trial, the prosecutor entered the courtroom with a cart containing files relating to defendant, three relating to other cases. Defendant claimed this cart was three paces from the jury box and that two alternate jurors walked by it. The prosecutor claimed he saw none of the jurors look at the cart. The court determined that only one of the files was visible and asked the prosecutor to cover it. Noting that defendant had not been prejudiced, the trial court continued with the trial.

Frank Kasluga testified at trial that he returned home from shopping on April 7, 1993, to find one of the panes of glass in his side door broken and glass on the floor. In his bedroom he saw that a drawer had been pulled out and its contents spilled.

Scott Manchester and Don Bannon testified that they were at Manchester's house across the street from Kasluga's house on April 7, 1993, when several children came in and said someone was across the street breaking into Kasluga's house. Manchester and Bannon ran outside and saw a man wearing faded blue jeans, a black jacket and a red baseball cap approaching the side door of Kasluga's house. They saw him take off his cap, place it against the window on the door, and break the window. Then he put his arm through the broken window, opened the side door and entered the house. Manchester went inside and called 911. A little later they saw the man run out the front door of Kasluga's house. Manchester and Bannon identified defendant in a police station lineup, and again at trial as the man who ran out of Kasluga's house.

Manchester further testified that, after watching defendant exit Kasluga's house, he chased him down an alley and into a yard. While defendant was in the yard, Manchester told him to freeze. Defendant turned toward Manchester and approached him, saying, "Don't come by me. I'm going to let you have it." Defendant then sprayed mace at Manchester, who covered his face as defendant ran past him. Manchester resumed the chase through another yard, into a park and across several baseball fields until he lost sight of defendant.

Officer Andrew Wallace testified that he responded to a call of a burglary in progress at Kasluga's address. While searching the area, Wallace saw defendant come out from under some stairs. Wallace told him to stay where he was, but defendant fled. Other officers soon found him hiding in a dollhouse in another backyard. Defendant was arrested and read his Miranda warnings. Defendant then stated that he had been in the area shopping and that his car had broken down on the way to his father's house. He could not give the officers his father's address.

Officer Robert Anderson also testified that he responded to a call of a burglary in progress at Kasluga's house. He spoke to two teenagers, who gave him a description of some 14 to 16 year olds, which he subsequently broadcast. Five minutes later, Manchester arrived and gave Anderson his description of the man he chased: a male white, 30 to 32 years old, 6 feet tall, 155 pounds, wearing a black jacket and blue jeans, with acne on his face. Anderson then broadcast that description. He entered Kasluga's house and found glass on the floor and a drawer turned upside down in the bedroom. The State rested.

Defendant introduced several close-up pictures of himself taken by the police on the day of his arrest. He then asked that he be allowed to show his face to the jury to demonstrate the condition of his face. The trial court ruled that a display of defendant's face to the jury would be testimonial and subject to cross-examination. Later at a hearing on defendant's motion for a new trial, the court ruled that the condition of defendant's face 28 months after the incident was not relevant.

Before trial, the State sought to bar admission of a police radio tape with descriptions of the burglary suspect. No transcript of the tape appears in the record, but defendant claims on appeal that the tape contains different descriptions of the suspect. The trial court admitted the tape to show conflicting descriptions of the perpetrator. After Officer Anderson testified, the State renewed its motion since Officer Anderson admitted he broadcast two different descriptions. The defense then asked that the tape be played, not only to show that different descriptions had been given, but also to impeach Manchester's testimony. The court limited the playing of the tape to the parts indicating that two different descriptions of the perpetrator were broadcast.

In closing argument, while discussing Manchester's identification of defendant, the prosecutor told the jury that "when you get as close as Scott Manchester got to his face[,] you can see acne on his face." Defendant claims that the prosecutor was standing close to defendant and looking at his face as he said this.

Defendant tendered an instruction for the lesser included offense of criminal trespass, which the court refused. The jury returned a verdict of guilty.

Defendant's motion for a new trial was denied.

At the sentencing hearing, the court received a presentence report and heard testimony from Detective Joseph Kirchens and Officer William Sotak about two pending cases: an attempted burglary charge and a residential burglary charge. The court said it would not consider the attempted burglary offense. After considering the presentence report and the residential burglary charge along with mitigation, the court sentenced defendant to 20 years in prison.

Defendant first argues on appeal that the trial court erred in holding that a display of defendant's face to the jury for demonstrative purposes would be testimonial and a waiver of defendant's fifth amendment right against self-incrimination. At trial, the court said:

"If the defendant were to get up on today's date about two and a half years after the date of the offense and display his face to the members of the jury to show that he does not have any acne or pock marks today would be testimonial in nature and he would be subject to cross examination as to how his face looked back on the date of the incident."

In denying defendant's post-trial motion, the court said "as to the display of the defendant's face, the threshold issue is that of relevance. I don't believe it was relevant to have the jurors view what his face appeared like two years after the alleged incident."

Courts that have addressed whether a defendant's display of a physical characteristic constitutes a waiver of his fifth amendment rights have found that if the prosecution may compel a defendant to display a physical characteristic on the ground that it is nontestimonial, the defendant's decision to present such evidence is not a waiver of his rights against self-incrimination. See, e.g., United States v. Bay, 748 F.2d 1344 (9th Cir. 1984), modified on reh'g, 762 F.2d 1314 (9th Cir. 1985); State v. Gaines, 937 P.2d 701, 1997 Ariz. App. LEXIS 37, No. 96-0380 (Ariz. App. March 13, 1997); People v. Shields, 81 A.D.2d 870, 438 N.Y.S.2d 885 (1981); State v. Tillett, 351 So. 2d 1153 (La. 1977). However, the traditional law of real or demonstrative evidence still applies to a court's decision to allow the display. People v. Ward, 193 Ill. App. 3d 677, 681, 550 N.E.2d 576, 140 Ill. Dec. 691 (1990). The party offering the evidence must establish relevancy. Ward, 193 Ill. App. 3d at 682. The trial court questioned the relevancy of the condition of defendant's face 28 months after the offense. Defendant did not make an offer of proof to support his contention that his face was in the same condition at trial as it had been 28 months earlier. Nor did he make an offer of proof that his facial condition at trial would confirm the appearance of his face in the photographs taken of him on the day of the crime.

This case is similar to United States v. Bay, 748 F.2d 1344 (9th Cir. 1984), modified on reh'g, 762 F.2d 1314 (9th Cir. 1985). In Bay, the court held that a defendant's display of tattoos was non-testimonial and would not subject the defendant to cross-examination. In a modified decision on request for rehearing, the court addressed the prosecution's argument that there had been no foundation to establish that the defendant had tattoos at the time of the crime. The court observed that if a foundation had been laid showing that the tattoos were on the defendant's hands at the time of the robberies, those physical characteristics would have been admissible without subjecting the defendant to cross-examination. Bay, 762 F.2d at 1315-17.

The Appellate Court of Massachusetts addressed this issue when a defendant was denied the opportunity to display a tattoo on his hand at trial 11 months after the offense. The court reasoned:

"If we should take the view that the hand could supply its own foundation and constitute evidence of the condition of the hand at the time of the robbery, then the display of the hand would clearly have had a testimonial component and constituted an election by the defendant to testify." ...

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