Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois No. 96-CF-1053 Honorable Gerald Kinney, Judge Presiding
The opinion of the court was delivered by: Justice Lytton
A jury found defendant Orrin Dressler guilty of robbery, armed robbery, kidnaping, aggravated kidnaping with a canister of Mace, aggravated stalking and theft (720 ILCS 5/18--1(a), 18--2(a), 10--1(a)(1), 10--2(a)(5), 12--7.4(a)(2), 16--1(a)(1)(A) (West 1996)). The jury found defendant not guilty of aggravated kidnaping with a gun. The judge imposed consecutive sentences of 14 and 11 years for armed robbery and aggravated kidnaping, respectively, and concurrent 5-year sentences for aggravated stalking and theft to run concurrently with the longer sentences. No sentences were imposed for robbery and kidnaping. Defendant raises the following issues on appeal: (1) whether the trial court erred in denying defendant's motion to suppress evidence; (2) whether Mace is a "dangerous weapon" that can support a charge of aggravated kidnaping; (3) whether the court erroneously denied defendant's motion to dismiss charges of kidnaping and theft on speedy trial grounds; (4) whether the State failed to prove a material element of aggravated stalking; (5) whether the trial court erred in overruling defendant's objection to a tape-recorded 9-1-1 call; (6) whether the prosecution of kidnaping and aggravated kidnaping was barred by principles of double jeopardy; (7) whether all charges should have been dismissed for violation of defendant's speedy trial rights; and (8) whether there was a fatal variation between the charges for theft, robbery, armed robbery and aggravated stalking and the proof at trial. We vacate defendant's convictions for aggravated kidnaping, robbery and theft and the sentences imposed for aggravated kidnaping and theft. In all other respects, we affirm. We remand the cause for sentencing on kidnaping.
FACTS AND PROCEDURAL CONTEXT
On February 23, 1996, a search warrant was issued for defendant and the premises he occupied at 11245 South Joliet Road in Lemont, Illinois. The warrant authorized seizure of items allegedly used in the kidnaping, aggravated kidnaping, unlawful restraint and aggravated unlawful restraint of defendant's ex-wife, Cook County sheriff's deputy Mary Jo Senese. The warrant specified the following items: a lady's purse and contents, a Smith and Wesson .357 revolver, a Cook County sheriff's deputy star, car keys for a Toyota, handcuffs and chains. That same day, the police executed the warrant and arrested defendant. He was held without bond on charges of armed robbery, aggravated kidnaping (two counts), robbery, aggravated stalking, unlawful use of a weapon and violation of an order of protection.
On April 22, 1996, the date the cause was initially set for trial, defendant moved for a continuance, which was granted. The trial was also continued on defendant's motion on May 14 and August 19, 1996.
On September 23, 1996, defendant moved to suppress based on the allegedly unlawful seizure of items not specified in the February 23 search warrant. At the hearing on the motion, the police testified that their search of the house in Lemont failed to uncover the gun, purse and star specified in the warrant. However, during the course of their search, the officers found and seized numerous other items from drawers, closets and cabinets which they believed to have evidentiary value. Such items included a wig, which an investigator believed the defendant used as a disguise; a notebook with dated entries naming the victim; a microcassette tape from an answering machine; adult videotapes; and a stack of nude photographs. The officers explained that they thought the videotapes and the photographs might be of value in establishing defendant's "mind set." After taking the matter under advisement, the trial court denied the motion to suppress.
On December 18, 1996, the State filed an amended indictment in 12 counts charging the original felony charges and several new charges, including theft, kidnaping and unlawful possession of explosives. Following several more continuances, defendant moved for a discharge based on violations of his right to a speedy trial. The court denied the motion. Prior to trial, charges of unlawful possession of weapons and explosives were severed. On August 25, 1997, the cause proceeded to trial on the seven remaining felony counts.
Mary Jo Senese testified that she obtained an order of protection against defendant during divorce proceedings that commenced in June of 1995. On the morning of July 28, she filed a complaint in Will County alleging that defendant violated an order of protection because he failed to return certain personal property to her. That evening, while Senese was walking between the garage and her condominium, defendant drove his car toward her at a high rate of speed and nearly hit her.
Around 6:45 a.m. on February 23, 1996, as Senese was about to enter her car for work, a man whom she did not recognize grabbed her, sprayed Mace in her face and forced her into a vehicle. During the ensuing struggle, Senese pulled a wig off the man and recognized the defendant. Defendant handcuffed Senese's hands behind her and removed her service revolver. Defendant then drove her to the house in Lemont, where he handcuffed and chained her to the wall in a small, cement-block room in the basement.
After defendant left the house, Senese worked one handcuff loose and broke another. She proceeded upstairs and called 9-1-1. Over defendant's objection, the tape-recorded 9-1-1 call was played to the jury. The court admonished the jury that the evidence was to be considered solely to show the witness' state of mind at the time.
Senese said she left the house through the bathroom window before the police arrived and ran to a business on the adjoining property. Store manager Karen Bartleman testified that Senese, whom she did not know, entered the business around 11:45 a.m. with handcuffs on both wrists and a heavy chain hanging from one of the cuffs. Bartleman summoned help.
Later that day, after the police had secured defendant's house in anticipation of a search warrant, defendant drove up. He was immediately arrested. Police officers testified that after the warrant arrived, they reentered the house and seized numerous items, including an officer's gun belt and miscellaneous items consistent with the contents of a woman's purse, from the small room in the basement. In a bedroom closet, the officers found a brown wig. They also found a notebook with dated entries, a case containing handcuffs and a small canister of Mace personal defense spray in a dresser drawer. Senese's revolver was subsequently turned over to the police in April 1996 by defendant's son, Robert, who said he found it in the house under defendant's bed.
After the State rested, defendant testified on his own behalf. He admitted that he drove by Senese's condominium in Orland Park on the evening of July 28, 1995, but he denied that he tried to hit her with his car. He said that on February 23, 1996, he got up around 7 a.m. and worked in his office until around 10:30 a.m., when he left for a doctor's appointment. He said that a friend, Susan Katauskas, stopped by around 9 a.m. and left a pound cake. When he returned to the house later that day, he encountered the police and was arrested. He admitted that the dated-entry notebook was a journal of his daily activities, but he denied committing any of the February 23, 1996, offenses alleged by Senese. Katauskas corroborated defendant's testimony with respect to her visit on the morning of February 23.
During jury deliberations, the jurors asked to review the 9-1-1 call. Over defendant's objection, the court played the tape again and repeated its admonishment that the evidence was to be considered only to show the caller's state of mind. The jury subsequently returned verdicts finding ...