APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE, JOSEPH ROMANO, JUDGE PRESIDING.
Released for Publication January 22, 1998.
Presiding Justice Campbell delivered the opinion of the court. O'brien, J., and Gallagher, J., concur.
The opinion of the court was delivered by: Campbell
PRESIDING JUSTICE CAMPBELL delivered the opinion of the court:
Following a jury trial, defendant, William Lenius, was convicted of first degree murder, attempted first degree murder, aggravated battery, possession of an explosive or incendiary device, and aggravated arson and sentenced to concurrent terms of natural life imprisonment for first degree murder and 30 years for attempted murder, as well as concurrent terms of seven years' imprisonment for aggravated battery and five years for possession of an explosive device. On appeal, defendant cites multiple errors at the pretrial, trial and sentencing phases of his trial. We affirm defendant's conviction.
The record reveals the following relevant facts. On August 31, 1993, Ellen Marshall lived with her parents in a townhome located at 8044-A Lyons, Niles, Cook County, Illinois. At about 12:30 p.m., Ellen went out to her car, parked in a lot just north of the townhome, and noticed a red tool box with a key in the lock on the ground behind the left front tire, partly under her car. Ellen moved the tool box out from behind the tire, then drove away.
Debra Conrad and her family lived next door to the Marshalls, at 8044-B Lyons. Debra was employed as a school bus driver for handicapped students. At about 2:30 p.m., on August 31, 1993, Debra left home to pick up the students. As she neared her van, parked in the vicinity of the space vacated by Ellen's car, Debra noticed a tool box on the ground. Ellen returned to the parking lot and told Debra that she had noticed the tool box earlier and that she had pushed it away from her car. Ellen then went into her home.
Debra approached the tool box, and seeing the key in the lock, tried to turn it. She was not able to turn the key. Debra then left to pick up the students.
Upon her return, between 3 and 3:30 p.m., Debra saw that the tool box was still in the parking lot. Debra picked up the tool box and brought it into her home in order to determine its owner.
Debra's husband, Wayne Conrad, was home sitting on the sofa in the living room. Debra handed the tool box to Wayne. She said that she thought it might belong to a young man who had worked on his car in the parking lot. Debra stated, "Maybe you can open it up and see if the name is in there."
Wayne set the box in his lap. Debra turned to walk from the room to the kitchen, and Wayne said, "I can't get the lock." Debra turned back toward him and replied, "Then let's just forget about it." As she started to turn back toward the kitchen, Wayne said, "I think I got it." Debra turned to face Wayne, and at that moment the box exploded, killing Wayne and the family dog and seriously injuring Debra.
Prior to trial, a combined hearing commenced on defendant's motions to quash arrest and suppress evidence and to suppress statements.
A. Motion to Suppress Statements
Niles police detective sergeant Dennis McEnerney testified that on August 31, 1993, at 11:10 p.m., he had a conversation with defendant in the tactical office of the Niles police department. Also present were Federal Bureau of Alcohol Tobacco and Firearms (ATF) Special Agent Cynthia Beebe and Cook County sheriff's police department officer Rewers.
McEnerney read defendant his Miranda rights. Defendant stated that he did not understand his right to an attorney. McEnerney explained that if at any time defendant would like an attorney, then the police would stop asking questions and defendant would be allowed to consult with an attorney. Defendant signed a form waiving his rights.
At 2 a.m., McEnerney left defendant alone with Agent Beebe. In between 2 and 3:30 a.m., McEnerney ducked his head into the room two or three times. Agent Beebe never left the office between 11:10 p.m. and 3:30 a.m.
At 3:30 a.m., McEnerney reentered the office and Agent Beebe exited. McEnerney had a conversation with defendant for about half an hour. At 4 a.m., McEnerney left Agent Beebe and defendant in the office, returning again at 4:05 a.m. with Assistant State's Attorney (ASA) Kinnerk, to initiate another conversation with defendant. ASA Kinnerk advised defendant of his Miranda rights, and defendant signed a second waiver of rights form. The officers and the ASA then had a second conversation with defendant until 5 a.m., at which time McEnerney and ASA Kinnerk left defendant alone with Agent Beebe.
At no time did defendant request an attorney, nor was defendant promised leniency in exchange for a statement. No officer threatened defendant with either the death penalty, incarceration in the cook County jail, or both. Defendant was provided with food and drink and was allowed to use the bathroom facilities.
Agent Beebe was alone with defendant from 5 a.m. until 7:40 a.m., on September 1, 1993, at which time defendant was placed in the lockup. Sometime in the late morning or early afternoon, after defendant gave a court-reported statement, an attorney arrived at the police station to see defendant.
ATF Special Agent Cynthia Beebe testified that between 11:10 p.m. and approximately 2 a.m., she took handwritten notes of her interview with defendant, Starting around 2 a.m., defendant became "fairly emotional," red-faced, and leaned forward as though he might say something. Agent Beebe advised defendant that if he wanted to, he could speak to either her or Sergeant McEnerney alone. At approximately 2:30 a.m., defendant asked Agent Beebe if he could talk to her alone. McEnerney agreed to leave the room.
After McEnerney left, Agent Beebe ceased taking notes but continued her conversation with defendant. At about 3:10 a.m., Agent Beebe started writing notes again, after defendant agreed that she could do so. At one point, Agent Beebe left the room for three to five minutes to speak with McEnerney. After she returned, she continued taking notes of her conversation with defendant.
At approximately 3:30 a.m., defendant allowed McEnerney to return to the room. Agent Beebe made a written indication of the time of the sergeant's return, and shortly thereafter, she concluded writing five pages of notes. Agent Beebe then gave the notes to defendant to read and sign and then to McEnerney to read and initial. At about 9:30 a.m., defendant gave a statement to Agent Beebe, ASA Kinnerk and Niles police officer O'Sullivan in the presence of a court reporter.
Several weeks after the interviews, Agent Beebe arranged to have her handwritten notes typed for ATF reporting purposes. Agent Beebe photocopied the signatures on the original handwritten notes, cut the signatures out of the photocopies, and taped the signatures to the typewritten pages. Agent Beebe stated that the content of the typed notes is identical to the content of the handwritten notes.
Agent Beebe stated that during the initial conversation with defendant, McEnerney told defendant that a woman had been killed. Based on the sergeant's statement, Agent Beebe was not clear whether the sergeant meant Debra Conrad or Ellen Marshall. Agent Beebe admitted that, at one point, McEnerney said that Ellen Marshall was dead, when Agent Beebe knew that Ellen Marshall was not dead. Agent Beebe was confused by the sergeant's statement, and although she did not interrupt him, she made a note of it. Agent Beebe also wrote that when Sergeant McEnerney went to defendant's apartment, he told defendant that Ellen Marshall was dead. Agent Beebe agreed that it was not true that Ellen Marshall was dead.
Niles police officer Joseph O'Sullivan testified that he was present at the time defendant gave his court-reported statement. At the conclusion of the statement, ASA Kinnerk asked defendant to read and sign the statement. However, when defendant reached page 3 of the statement, defendant looked up, said he did not want to sign any more pages, and requested an attorney. Defendant was immediately removed to the lockup. Defendant never reviewed the entire statement.
At 10:05 a.m., Officer O'Sullivan received a telephone call from a person identifying himself as Bob Griffith, an attorney for defendant. Griffith told Officer O'Sullivan that he had been contacted by defendant's employer. Officer O'Sullivan advised ASA Kinnerk of Griffith's telephone call.
At 10:35 a.m., Officer O'Sullivan received a second telephone call from Griffith. Griffith told Officer O'Sullivan that he did not want anyone talking to his "client." Officer O'Sullivan did not remember whether he told ASA Kinnerk about Griffith's second call. At 12:30 p.m., Griffith arrived at the police station and was brought to meet defendant in the lockup.
Defendant testified that on August 31, 1993, at approximately 11 p.m., he was in custody at the Niles police station. McEnerney told defendant that his fingerprints had been found "all over" the device that had exploded. Defendant replied that that was not possible, and the sergeant stated that the fingerprints matched those in defendant's military records.
Defendant told the authorities that he did not know anything about the crime for which he was arrested, at which time Officer Rewers said, "Fuck him, if he is going to be an asshole, send him down there and they will take care of him." Rewers then left the interview room. McEnerney and Beebe told defendant that if he did not "go along," with what they wanted, they would send him down to Cook County jail and have "certain gangs number me up," and if he "lived through it," it would "be days before anybody heard from [him]."
Defendant stated that he asked to see an attorney after McEnerney read him his rights. McEnerney asked defendant if he could afford an attorney. Agent Beebe told defendant that he would probably get the death penalty if he did not go along with what they said because she was a federal agent and had control over the courts. Agent Beebe promised that if defendant cooperated with the authorities, they would talk to doctors and the judge, and make sure nothing would happen to him.
When defendant first entered the interview room, they told him that they were investigating the death of Ellen Marshall. Defendant first learned that was not correct early the next morning. At that time, Agent Beebe said, "I have something to tell you may make you mad, but may make you kind of happy." Then she said that Marshall was not dead. Agent Beebe did not tell him who was, in fact, deceased.
Defendant stated that during the course of the night, and into the early morning hours, he requested an attorney close to a dozen times. At about 2:30 a.m., defendant told the authorities that he wanted to lie down and try to sleep because he was tired. Defendant stated that he was not allowed to sleep.
After the sergeant left, defendant and Agent Beebe had a conversation. Then, Agent Beebe asked defendant to sign a sheet of paper in order to "verify" that she had talked to him. Defendant signed the paper, but he did not read any notes prior to signing anything.
Later, while giving his court-reported statement to the ASA, defendant stopped the proceeding in order to stall for time to acquire representation. Defendant had agreed to give the statement only because he previously had been threatened and denied the right to talk to an attorney. After defendant gave the court-reported statement, he was brought out of the lockup in order to review the typed statement. They handed him one page at a time, he signed only the first two pages, then refused to sign the rest of the statement.
B. Motion to Suppress Evidence
Defendant testified that on August 31, 1993, at approximately 9 p.m., he was in his apartment located at 3321 North Kenneth, Chicago, when the doorbell rang. Defendant descended the rear stairs to answer the door and encountered "at least 10" police officers. Sergeant McEnerney asked defendant if he was Bill Lenius, then told him that they had a search warrant to search his apartment. The sergeant pushed defendant aside, pushed the door open and a few of the officers went upstairs into defendant's apartment. McEnerney did not show defendant an arrest warrant.
The officers entered defendant's apartment ahead of him and without his permission. Two officers remained in the living room, two went into the kitchen, and three went into the bedroom. Defendant asked what was going on, and McEnerney replied that they were "looking for something." McEnerney refused to show defendant a warrant. McEnerney asked defendant to sign a "verification that they were in fact serving said search warrant." Defendant signed the document, although he could not read it because it was covered by another piece of paper.
Defendant stated that the officers recovered and removed various items from his apartment, but he was not given an inventory of the items removed. McEnerney asked whether his truck was parked in front of the building. Defendant did not give police permission to search his truck. When the sergeant asked defendant if he knew anyone in Niles, defendant mentioned his ex-girlfriend, Ellen Marshall. McEnerney replied that Ellen was dead.
Defendant then reached for the telephone to call Ellen's house to find out "what was going on." McEnerney grabbed defendant's arm and pulled him away from the telephone. The sergeant then ordered defendant to accompany the officers to the Niles police station for the investigation of the death of Ellen Marshall. Defendant said he wanted to straighten up his apartment first and stated that he would go to the police station later with a friend. The sergeant refused and told defendant that he had to accompany the officers. Defendant stated that the officers searched his person without advising him of his Miranda rights.
Sergeant McEnerney testified that he learned of the explosion on August 31, 1993, from Ellen Marshall. Ellen also informed officers that, in July 1993, she had received a package, wrapped in brown paper, placed between the screen door and the front door of her parents' home. The return address on the package was "PET Inc," and bore a Chicago address and postmark. Ellen found no listing for such a company in the Chicago telephone directory. Ellen took the package up to her room and unwrapped it and found that it contained a portable stereo-radio. Ellen put the stereo-radio in her closet.
At about 7 p.m., the Cook County bomb squad performed an X ray on the stereo-radio and found that it contained a metal pipe bomb, comprised of a powder ignition source and a motorcycle battery. The components of the bomb included PVC pipe, time caps and nails, bolts through the end caps, and explosive powder. The bomb was powered by an electrical cord. The bomb squad found that the end caps were made from the caps of an Edge shaving cream can. The bomb squad performed a procedure to disarm the bomb and render it safe.
Ellen and her mother, Sybil, told the sergeant that they thought defendant may have directed the bombs at her because Ellen had ended her relationship with defendant. Ellen stated that shortly after she broke up with defendant, she discovered sugar in the gas tank of her vehicle. Ellen confronted defendant, who replied that he would not do anything to her car; he would harm her instead. Ellen also informed the officers that defendant tinkered with motorcycles, that he was in the United States Navy ...