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People v. Kalwa

June 30, 1999


The opinion of the court was delivered by: Justice Quinn

Appeal from the Circuit Court of Cook County

Honorable Fred G. Suria, Judge Presiding.

Following a jury trial, defendant Donald Kalwa was convicted of first degree murder and armed robbery and was sentenced to concurrent prison terms of 100 years' and 30 years', respectively. Defendant had two trials. On July 18, 1995, following a bench trial, defendant was convicted of first degree murder and armed robbery. However, defendant was granted a new trial because, after defendant waived a jury but before trial, defense counsel discovered that a fingerprint previously thought to be unsuitable for comparison was comparable and did not match defendant's fingerprints. Defendant's second trial began on May 20, 1996, and after a retrial with a jury, defendant was again convicted of first degree murder and armed robbery. Defendant appeals, contending that: (1) he should be granted a new trial because he was taking psychotropic medication during the trial but never received a fitness hearing; (2) the State failed to prove beyond a reasonable doubt that the offense of armed robbery occurred in Cook County, as charged in the indictment; and (3) the trial court erred in instructing the jury that it could find defendant guilty of armed robbery if the offense occurred in either DuPage or Cook County. For the reasons that follow, we affirm defendant's convictions.

The following pertinent facts were adduced at defendant's jury trial. During the summer of 1993, the victim, Rachel Rachlin, responded to an advertisement defendant placed in the newspaper seeking a female roommate. Defendant lived in a one-bedroom apartment in Westmont, Illinois, which is in DuPage County. Rachel moved into defendant's apartment in the middle of July.

On August 17, 1993, approximately one month after moving in with defendant, Rachel told her best friend, Mary Ann Dzibula, that she was unhappy with the living arrangement and wanted to move out. That same day, Vince Adamus, Rachel's ex-boyfriend, had dinner with her and he testified that was the last time he saw her alive.

On September 1, 1993, Rachel's vehicle was found in a remote parking lot at O'Hare Airport. Rachel's body was found in the trunk of the car buried under a pile of dirt. Rachel's death was apparently caused by three gunshot wounds to the head. Her head was wrapped in a large white plastic bag. The vehicle was photographed and dusted for fingerprints. A note and a Britannia men's watch, with hair wrapped around the winding stem and band and bloodstains on its face, were recovered from the vehicle.

Randy Caruso testified that on August 20, 1993, he owned and operated a limousine service and received a dispatch just before 2 p.m. that he was to pick up a passenger named John Noble at O'Hare Airport and take him to Westmont. Caruso testified that when he arrived at Terminal One and called for John Noble, defendant approached and said he was "Don" and was going to Westmont. Defendant told Caruso that he was not from Westmont but was in town visiting friends. Caruso dropped defendant off in Westmont. On September 3, 1993, Caruso spoke with police officers and on September 14, 1993, identified defendant in a lineup.

Kuriakose Matthew, assistant director of aviation parking facilities at O'Hare Airport, testified that, according to records, Rachel's car first appeared in a remote parking lot on August 20, 1993. The "people mover" transported persons from that parking lot to Terminal One.

Vince Adamus testified that on August 20, 1993, he received a message from a woman who said that, while walking, she found a check with his telephone number on it. Adamus and Rachel had accounts at the Evanston Bank and Rachel's checks had his address and telephone number printed on them. This check was made out to defendant in the amount of $400.

Patricia Egerdahl testified that on the morning of August 21, 1993, she was walking down Fairview Avenue around 59th Street in Downers Grove. She saw a check in the street and picked it up. She called the telephone number on the check and left a message. She turned the check over to the police.

The victim's mother, Roslyn, testified that she went to her daughter's apartment on August 24, 1993, with Westmont police and spoke to defendant. Defendant told Roslyn that Rachel had moved out and taken all of her belongings with her. Defendant also told Roslyn that he had seen Rachel's car in the apartment complex late on the night of August 20. The police recovered numerous items belonging to Rachel in defendant's apartment, including a jewelry box, a filing cabinet containing the victim's correspondence, a lamp and a telephone.

John Theis, the maintenance man for the apartment complex, testified that on August 20, 1993, between 8 and 9 a.m., he saw defendant carrying furniture and other items to the garbage area near his apartment complex. Theis recovered a mattress, a television, a watch and a pearl ring with diamonds. Late on August 21, 1993, Theis saw defendant put black plastic bags into the garbage at the apartment complex. From these bags, Theis recovered a word processor, a color television and a telephone.

Norma Fazio, an officer for St. Paul Federal Bank, testified that on August 20, 1993, at the Downers Grover branch, defendant signed the back of a check from the victim's account made out to defendant for $600, deposited $450 into his account, and received $150 in cash. Defendant cashed two checks belonging to the victim; one which was made out to cash for $150 and another one made out for $200 on August 22, 1993. Fazio also identified a check from the victim made out to defendant for $390 dated August 21, 1993.Dorothy Myer, vice president of Evanston Bank, testified that Rachel's account had a balance of $1056.06 on August 19, 1993, and a balance of $54.83 on September 3, 1993. Rachel's last automated teller transaction was on August 19, 1993. One check from the victim's account was dated August 20, 1993, and was made out to Commonwealth Edison in payment of defendant's electric bill. Other checks from the victim's account paid defendant's phone bill and a newspaper bill. On August 24, 1993, a stop payment order was received by telephone, stopping payment on the victim's check made out to a mattress store. Defendant's telephone number was listed on the order as a reference number.

Jeanne Brundage, a handwriting and printing examiner for the Illinois State Police Crime Lab, testified that she compared various items with known handwriting samples of Rachel and defendant. In Brundage's opinion, Rachel's check found in Downers Grove and made out to defendant for $400 had a simulation of Rachel's handwriting for her endorsement, and defendant's actual signature as a second endorsement. The check made out to defendant for $600 dated August 20, 1993, had a simulation of Rachel's signature, defendant's genuine signature and pictorial similarities to Rachel's known writing as to the other entries. The other checks testified to by Myer also contained simulations of Rachel's signature.

Jim Jilek, the keeper of records for Ameritech, testified that the last call on Rachel's telephone line on August 19, 1993, was at 10:06 p.m. The first call on that line on August 20, 1993, was made to directory assistance at 8:15 a.m., followed by several calls to the Evanston Bank. No calls were made on August 21 or 22. On August 23, 1993, calls were placed to information at 4:34 and 4:38 p.m. and to the Evanston bank at 4:35 p.m. The last call on August 23, 1993, was at 4:38 p.m.

Westmont police sergeant Robert Smith testified that he executed a search warrant on defendant's apartment on September 2, 1993. In addition to the property mentioned previously, a white plastic bag similar to the one wrapped around the victim's head was found. Smith testified that he asked defendant to cooperate in the investigation and defendant replied, asking why he should cooperate as he would only "fry by himself." Defendant then asked Smith if his Star Wars posters would fit in an 8 foot by 12 foot prison cell. Defendant denied being at O'Hare Airport recently.

Chicago police detective Richard Schak testified that on September 2, 1993, he interviewed defendant. Defendant told Schak that the mattress recovered from the garbage was his. Defendant denied ever signing the $400 check recovered on the street. Defendant also denied that Kathy Southcott ever gave him a Britannia watch. Defendant said that the victim's property was all gone when he came home one day. After Schak asked defendant why the victim was killed, defendant became teary-eyed and said that it was not anything like an argument or sex, but he could not tell Schak what it was about. Schak also asked defendant why defendant would put her in dirt, and defendant said it was to hide or mask the odor. Defendant was allowed to go home after this interview.

Schak testified that he then spoke to Randy Caruso, who identified defendant's picture from a photo array. Schak next talked to handwriting expert Jeanne Brundage. After this, on September 9, 1993, Schak secured an arrest warrant for defendant. Schak testified that after he arrested defendant, defendant asked why so many police came to arrest him. Defendant said the police were acting as if he were Jeffrey Dahmer and that this was the killing of only one girl and was not that big of a deal.

Mark Goldman testified that in July 1993 he sold the victim the mattress recovered from the garbage.

Kathy Southcott testified that she dated defendant from 1989 to 1994 and that she gave defendant a Britannia watch for Christmas, 1992. She identified the Britannia watch found in the victim's ...

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