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State v. Sutherland

September 21, 2006

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,
v.
CECIL S. SUTHERLAND, APPELLANT.



The opinion of the court was delivered by: Justice Fitzgerald

Chief Justice Thomas and Justices Freeman, Kilbride, and Garman concurred in the judgment and opinion.

Justices Karmeier and Burke took no part in the decision.

OPINION

Following a jury trial in St. Clair County, defendant Cecil Sutherland was convicted of aggravated kidnaping (Ill. Rev. Stat. 1987, ch. 38, par. 10-2(a)(2)), aggravated criminal sexual assault (Ill. Rev. Stat. 1987, ch. 38, par. 12-14(b)(1)), and first degree murder (Ill. Rev. Stat. 1987, ch. 38, par. 9-1(a)(1)). The circuit court sentenced defendant to death. This appeal followed. 134 Ill. 2d R. 603.

For the reasons discussed below, we affirm defendant's convictions and death sentence and remand for additional sentencing.

BACKGROUND

On July 2, 1987, the body of 10-year-old Amy Schulz was discovered on a dirt road in rural Jefferson County. Amy had been strangled, her throat had been slit, and she had been sexually assaulted. Amy had been missing from her Kell, Illinois, home in neighboring Marion County since the prior evening.

In early October 1987, four months after Amy's murder, defendant (then 32 years old) left his Dix, Illinois, home in Jefferson County and drove to Montana. Later that month, federal authorities arrested defendant on charges unrelated to this case. Based in part on information provided by Montana authorities, on October 22, 1987, Jefferson County police officers secured a search warrant from a Jefferson County judge authorizing a search of defendant's person, vehicle, and possessions. At the time, defendant was in federal custody at the Missoula County jail in Missoula, Montana, and defendant's vehicle was being held by federal park rangers at Glacier National Park in Montana. Jefferson County police officers flew to Montana, where they executed the warrant, seizing defendant's vehicle and personal property. They also obtained samples of defendant's head, beard, chest and pubic hair. Jefferson County police officers also arranged for transfer of defendant's vehicle to Illinois. On October 28, 1987, Jefferson County police officers secured a second warrant authorizing a search of the vehicle, which police executed in Illinois.

Eight months later, in June 1988, defendant was indicted in Jefferson County for the aggravated kidnaping, aggravated criminal sexual assault, and first degree murder of Amy Schulz. Defendant filed a motion to suppress all evidence seized in Montana pursuant to the October 22, 1987, search warrant. The circuit court denied the motion to suppress.

Following a change of venue to Richland County, a jury convicted defendant of all charges and subsequently found him eligible for the death penalty. The circuit court sentenced defendant to death. On direct appeal to this court, we affirmed defendant's convictions and sentence. People v. Sutherland, 155 Ill. 2d 1 (1992). Defendant filed a petition for a writ of certiorari to the United States Supreme Court, which was denied. Sutherland v. Illinois, 510 U.S. 858, 126 L.Ed. 2d 130, 114 S.Ct. 170 (1993).

Defendant thereafter filed a post-conviction petition raising numerous claims. The trial court held an evidentiary hearing on certain claims, but ultimately dismissed the petition. On appeal to this court, we reversed defendant's convictions and sentence and remanded for a new trial, citing ineffectiveness of trial counsel and improper prosecutorial argument. People v. Sutherland, 194 Ill. 2d 289, 299-300 (2000).

On remand, venue was transferred to St. Clair County. Prior to trial, defendant filed several motions challenging the validity of the search warrants issued on October 22 and October 28, 1987, and requesting suppression of all evidence seized pursuant to the warrants. The trial court denied such motions.

In May 2004, defendant's retrial began. Briefly, the State offered evidence that gold fibers found on the victim's clothing were consistent with the carpeting and upholstery in defendant's vehicle, and that red fibers found in defendant's vehicle were consistent with the victim's clothing. The State also offered evidence that two pubic hairs found on the victim's buttocks were microscopically consistent with defendant's pubic hair and that the two hairs had the same mitochondrial DNA (mtDNA) as defendant.*fn1 The State further offered evidence that animal hairs found on the victim's clothing could have originated from defendant's dog and that tire impressions found at the crime scene could have been made by defendant's vehicle. Defendant countered with evidence that he argued demonstrated that Amy Schulz was murdered by William Willis, her step-grandfather and a convicted pedophile. Defendant also challenged the State's hair and fiber evidence and introduced evidence that, at the time of Amy's abduction, he was watching a movie with his brother.

After five weeks of testimony, the jury returned a verdict of guilty on all charges. Defendant waived a sentencing hearing and, along with the State, presented the circuit court with an agreed recommended sentence of death. The circuit court, after finding defendant death eligible, accepted the recommendation and sentenced defendant to death. Defendant's appeal lies directly to this court. 134 Ill. 2d R. 603.

ANALYSIS

Defendant argues that the trial court erred by declining to hold an evidentiary hearing on his motions to suppress evidence recovered pursuant to the two search warrants issued in October 1987; failing to hold an evidentiary hearing on his motions challenging the affidavits that supported the two search warrants; allowing the State to introduce evidence recovered from defendant's vehicle after the State failed to produce the vehicle pursuant to defendant's discovery request; allowing the prior testimony of crime-scene technician Richard Caudell, who died before defendant's retrial, to be read to the jury; allowing the State to call Sherry Witzel, a member of defendant's prior defense team, as a rebuttal witness; and allowing the State to introduce certain DNA evidence. Defendant also argues that the State's evidence failed to establish his guilt beyond a reasonable doubt.

I. Motions to Suppress Evidence

Defendant argues that the trial court committed reversible error by declining to hold an evidentiary hearing on his motions to suppress evidence seized pursuant to the search warrants issued on October 22 and October 28, 1987. The State argues that the trial court did not abuse its discretion in denying defendant's request for an evidentiary hearing on his motions to suppress. According to the State, the doctrine of collateral estoppel barred defendant from relitigating issues raised and decided in his first trial and not thereafter challenged on appeal. See People v. Enis, 163 Ill. 2d 367 (1994).

When a motion to suppress evidence involves factual or credibility determinations, it is subject to reversal on review only if it is manifestly erroneous. Where, as here, the parties do not dispute the underlying facts or the credibility of witnesses, only a question of law is involved. Thus, the trial court's ruling is subject to de novo review. People v. Love, 199 Ill. 2d 269, 274 (2002). The applicability of the collateral estoppel doctrine is also a question of law, and de novo review is appropriate. See People v. Daniels, 187 Ill. 2d 301, 307, 320-21 (1999); People v. Powell, 349 Ill. App. 3d 906, 909 (2004).

In People v. Enis, 163 Ill. 2d 367 (1994), cited by the State, we considered whether the trial court erred when, on remand for a new trial, the court refused to reconsider its earlier denial of the defendant's motion to quash arrest and suppress evidence. We found no reversible error. We reasoned that the defendant could have challenged the denial of his suppression motion in his first appeal and that the defendant's failure to do so justified the trial court's refusal on remand to reconsider its earlier ruling. "Where a defendant's conviction has been reversed for trial error, and the cause is remanded for a new trial, the doctrine of collateral estoppel bars the relitigation of a pretrial ruling, such as a motion to suppress, unless the defendant offers additional evidence or there are other special circumstances." Enis, 163 Ill. 2d at 386. In Enis, no special circumstances existed that would have warranted relitigation of the defendant's pretrial motion. Thus, we held that the trial court did not err in its refusal to revisit its earlier rulings. Enis, 163 Ill. 2d at 387. Accord People v. Gilliam, 172 Ill. 2d 484, 505-06 (1996); People v. Jones, 219 Ill. 2d 1, 19-23 (2006).

Based on our review of the record in the present case, we conclude that the issues raised in defendant's suppression motions filed on remand were previously raised and litigated in defendant's first trial and that the doctrine of collateral estoppel bars relitigation of the trial court's earlier pretrial ruling. We also conclude that defendant has failed to identify special circumstances or additional evidence that would warrant relitigation. Accordingly, the trial court did not err in declining to hold an evidentiary hearing on defendant's suppression motions.

The record discloses that prior to defendant's first trial, defendant filed a motion to suppress evidence seized pursuant to the October 22, 1987, search warrant. That warrant, issued by a Jefferson County judge, authorized the seizure of certain evidence located in Montana, including defendant's vehicle, clothing and hair samples. The affidavit furnished by Officer Michael Anthis in support of the search warrant states in relevant part as follows:

"[Amy Schulz] was last seen alive at approximately 9:00 p.m. [on July 1, 1987] at 4th and Jefferson Streets in Kell, Illinois. *** At approximately 9:00 p.m. Schulz neighbor Kathy Simmons stated she saw Amy Schulz walk south on Jefferson St. *** About five minutes later Simmons saw a tan colored car with rust spots go south on Jefferson St., in the same direction Amy Schulz was walking. Amy Schulz was never seen alive again.

On July 2, 1987, Amy Schulz['s] body was found alongside a rural road in Jefferson County ***. Amy had been sexually assaulted and murdered. *** A footprint was found on her body and nearby and the ground print was identified as coming from a Texas Steer brand boot sold by K-Mart stores.

A tire print was found near Amy Schulz['s] body and a cast of that print was analyzed by the Illinois State Police Forensic Science Laboratory and revealed it to be a `Falls Persuader' regular bias tire made by Cooper Tire Company. It was determined that this tire print belonged to the right side of the vehicle suspected of transporting Amy Schulz to the crime scene. Hairs were found on her body and the laboratory determined them to belong to a white male.

That on October 10, 1987 a tan 1977 Plymouth Fury registered to Cecil S. Sutherland, a white male, was found abandoned in the Glacier National Park, Montana. Cecil S. Sutherland was arrested on 10-21-87 by the Federal authorities. Among his possessions were knives contained in a duffle bag and Texas Steer brand boots. His vehicle had a `Falls Persuader' regular bias tire on the passenger front side of his vehicle.

His mother, Joan Sutherland, confirmed that Cecil Sutherland was living in Kell, Illinois on July 1st and 2nd, 1987. His former employer *** located in Jefferson County Illinois confirmed that he worked on July 1, 1987 from 8:00 a.m. to 4:00 p.m. He did not work on July 2, 1987."

On October 24, 1987, Jefferson County police executed the warrant in Montana, seizing the vehicle, hair samples from defendant, and other items.

In defendant's suppression motion filed prior to his first trial, defendant raised several issues regarding the Montana search: (1) the search warrant complaint and supporting affidavit did not allege facts constituting probable cause; (2) the warrant, issued in Jefferson County, Illinois, had no legal validity outside of Illinois, the Jefferson County police had no authority to serve the warrant outside of Illinois, and no warrant or other process was sought or obtained from the State of Montana; (3) the Illinois officers did not advise defendant of his Miranda rights when they questioned defendant about the case and refused his request for an attorney; (4) the officers illegally executed the warrant by threat of force and against the defendant's will, taking head, beard and pubic hair samples from defendant; (5) the officers impounded defendant's vehicle and caused it to be transported back to Illinois and also seized defendant's clothing, boots and other personal belongings without defendant's knowledge or consent; and (6) the search was conducted without the knowledge of federal authorities, in whose custody was defendant at the time of the search.

In opposition to defendant's suppression motion, the State argued that defendant lacked standing to challenge the search of the vehicle because defendant had abandoned the vehicle and therefore had no legitimate expectation of privacy in the vehicle. The State further argued that because defendant was in federal custody, the State of Montana had no jurisdiction or interest in the case and that Illinois law should govern the admissibility of evidence seized pursuant to the warrant. In the alternative, the State argued that even if the warrant was invalid, the good-faith exception to the exclusionary rule rendered the evidence seized in Montana admissible at trial.

An evidentiary hearing was held on defendant's motion to suppress. The same judge who issued the October 22, 1987, warrant presided at the hearing. Defendant called David Brundage, a forensic scientist with the Illinois State Police. Brundage testified that the boot print found at the crime scene was made by a Texas Steer brand boot, sold only by K mart stores. Brundage also testified that he examined a plaster cast of a tire print from the crime scene and concluded that the tire track was made by a Cooper Tire brand tire.

Defendant also testified at the suppression hearing. According to defendant, around the first of October 1987, he left Illinois and drove to Montana in his 1977 Plymouth Fury, stopping only for gas. Defendant had no particular destination and ended up in Kalispell, Montana, in Glacier National Park. On October 10, 1987, after spending one night in the park, his car ran out of gas. Defendant locked his car and left it in the park. Defendant left a note in the car, which read:

"Car out of gas. I'm broke. Took what I could with me and got a ride back to the south. Will not be back for car. Please call one or both of the numbers on the front or back of this tablit [sic], let them deside [sic] what to do with the car and what's left inside. Title to car is in glove box. Title has been signed over to my folks."

Defendant testified that he had no further use for the vehicle and that it belonged to his parents.

Defendant took a makeshift backpack containing clothes and other items and secured a ride south. A day or two later, he headed back north and spent at least a week and a half "living off the land" in the park. Defendant was subsequently arrested by federal agents and ultimately pleaded guilty to attempted murder of a federal officer.

Defendant further testified that in late October 1987, while he was in federal custody in the Missoula County, Montana, jail, Officers Anthis and Parker, from Jefferson County, Illinois, served defendant with an Illinois warrant. No federal or Montana state authorities were present at the time. According to defendant, after learning the purpose of the officers' visit, he requested a lawyer. Anthis and Parker refused the request and told defendant that if he did not voluntarily provide hair samples, they would call in other officers and remove the hair themselves. Defendant protested, but provided the samples. Defendant never gave consent for the removal of his personal belongings or for the transport of the vehicle to Illinois.

The State called Eric Morey and Officer Anthis. Morey testified that in 1987 he was a law enforcement ranger with the National Park Service. On the morning of October 10, 1987, he observed a vehicle in a remote area of Glacier National Park. Frost covered most of the vehicle, indicating to Morey that it had been left there overnight. Through the driver side window, Morey observed a small spiral notebook, open on the seat, with a note that read: "Read page one and two. Then please due [sic] what I ask. Know [sic] have my car towed in. Thank you." The note was signed "Steve."*fn2 Morey gained entry to the car, which was locked, read pages one and two of the note, and located the vehicle title. Morey contacted defendant's mother and a brother, Michael Sutherland, who expressed no interest in the vehicle. Defendant's brother told Morey that the Sutherlands would assign the title to whoever wanted the vehicle. On October 11, Morey returned to the vehicle with another ranger. The vehicle was driven to the park district storage facility and secured. The contents were later inventoried. On October 24, 1987, the vehicle was turned over to Illinois officers.

Officer Anthis, with the Jefferson County sheriff's department in Mt. Vernon, Illinois, testified that on October 24, 1987, he flew to Montana with special agent Charles Parker of the Illinois State Police and David Brundage. Anthis verified that he executed the warrant on October 24, 1987, in Missoula County, Montana. Anthis identified the affidavit he provided in support of the warrant and testified that he made no material misrepresentations in the affidavit, the information he provided therein was correct to the best of his knowledge and belief, and he executed the warrant pursuant to the direction of the court that issued the warrant.

Anthis further testified that on October 23, 1987, in Kalispell, Montana, he met with the federal officer investigating the Montana case against defendant and explained the purpose of his visit. The following day, he and Parker flew to Missoula, Montana, where they contacted prison authorities and arranged to meet with defendant in an interview room at the county jail where defendant was in custody. No other officers were present at the interview and no written approval to conduct a search of defendant was obtained from any judicial authority in Montana.

According to Anthis, he and Parker explained to defendant that they were conducting an investigation in Illinois. Without being asked about his whereabouts on July 1, 1987, defendant volunteered his itinerary for that date. He declined to answer further questions, however, and requested an attorney. Anthis gave defendant a copy of the search warrant and collected hair samples from defendant's head, beard, chest and pubic area without protest. Defendant pulled the hairs himself and placed them in the envelopes Anthis provided. Anthis denied threatening to use force to obtain the hair samples. Anthis also testified that he and Parker looked over defendant's clothing and personal items held by authorities in Montana. Anthis recalled that defendant might have had among his possessions a pair of Texas Steer brand boots, but that the boots may have been a different style from the one that had left the print at the crime scene. That same day, Anthis and Parker obtained possession of defendant's vehicle from authorities in Glacier National Park. Anthis confirmed that the right front tire was a Cooper Tire brand Falls Persuader tire. Anthis did not obtain permission from defendant or his family to take the vehicle.

Following argument, the trial court denied defendant's motion to suppress. In its written order, the court made several findings: (1) the police officers involved acted in good faith in applying for the search warrant and in executing it; (2) defendant abandoned his vehicle in Montana and therefore had no right to privacy in his vehicle and no standing to object to a search of his vehicle; (3) the search warrant was supported by probable cause as evinced by the facts contained within the petition and affidavit, specifically by David Brundage's identification of a Texas Steer brand boot print and Falls Persuader tire-track impression made at the crime scene, and the fact that Montana authorities informed the Jefferson County sheriff's department that defendant had a Falls Persuader tire on his vehicle and Texas Steer brand boots in his possession in Montana; (4) defendant had no right to privacy in his boots, which had been inventoried by the jail and were being held in the jail; (5) the hair samples were obtained from defendant pursuant to a validly issued search warrant without further coercion, threats or force; and (6) the search warrant was valid in Montana because it was properly obtained and because defendant was in federal custody at the time it was served. In its oral ruling, the trial court also noted that even if the hair samples were not given voluntarily, "it wouldn't matter because the State would have gotten the samples later on anyway" because the search of the vehicle was valid.

Although defendant challenged the trial court's denial of his suppression motion in his posttrial motion for a new trial, he did not raise the issue on direct appeal following his first trial. Defendant also did not argue in his post-conviction petition that appellate counsel was ineffective for failing to raise the issue on direct appeal.

Following remand for a new trial, defendant filed three motions seeking to suppress the evidence seized pursuant to the October 22, 1987, warrant. Specifically, defendant filed a motion to quash arrest and suppress evidence, directed to the hair samples taken from defendant while he was in custody in Montana; a motion to suppress two pocket knives obtained from federal authorities in Montana; and a motion to suppress evidence obtained from defendant's vehicle as a result of the Montana search. Defendant also filed a separate motion to suppress evidence seized pursuant to the October 28, 1987, search warrant. That warrant, issued by the same Jefferson County judge that issued the October 22 warrant, authorized only a search of defendant's vehicle, which had already been transported to Jefferson County.

In response, the State argued that the issues raised in defendant's four new suppression motions were previously litigated at his first trial and not challenged on appeal, and that the doctrine of collateral estoppel barred relitigation. The new judge, to whom the case had been assigned on remand, agreed with the State and denied the four suppression motions. As stated earlier, we find no error in the trial court's application of the collateral estoppel doctrine under the circumstances present here.

In each of the three suppression motions challenging the Montana search that defendant filed on remand, he essentially renewed the arguments he had made in his prior suppression motion. That is, defendant argued that the search was without his consent; the Illinois police had no authority to act as law enforcement officers in Montana; an Illinois warrant is valid only within the State of Illinois; the Illinois police officers did not attempt to secure a search warrant from an appropriate federal magistrate or judge in Montana; and state search warrants have no force or effect on federal property. Each of these claims was litigated in the earlier suppression motion hearing.

The only issue not expressly litigated in the earlier hearing was defendant's claim, raised only in his motion to suppress evidence seized from the Montana vehicle search, that "[a] state search warrant authorizing a search on federal property, or in another state, from an objective standard, would put a police officer on notice that the warrant was invalid on its face." This ground for suppression of evidence was available to defendant at the time of his original suppression hearing. "To allow defendant on remand to raise additional grounds not originally presented to the trial court for suppression of evidence based on the same search and seizure would foster piecemeal appeals contrary to the promotion of judicial economy." People v. Abata, 165 Ill. App. 3d 184, 188 (1988); see also People v. Page, 155 Ill. 2d 232, 250 (1993) ("application of collateral estoppel in the suppression context advances many of the same policy goals that underlie the doctrine generally, such as the conservation of judicial resources and the avoidance of repetitive litigation").

Considerations of judicial economy aside, the trial court's earlier ruling that the police officers acted in good faith encompasses this new ground for suppression. Defendant's failure, however, to challenge on appeal the trial court's good-faith finding barred relitigation on remand. See Enis, 163 Ill. 2d at 386. Further, because defendant also failed to challenge the trial court's earlier ruling that defendant had abandoned his vehicle and therefore had no legitimate expectation of privacy in the vehicle, the issue of whether the officers were on notice that the warrant was facially invalid is moot. See People v. Hoskins, 101 Ill. 2d 209, 220 (1984) ("the protections against unreasonable searches and seizures do not extend to abandoned property, as the right of privacy in the property has been terminated").

With respect to defendant's suppression motion challenging the search of the vehicle in Illinois pursuant to the warrant issued on October 28, 1987, defendant argues that this was a "new and original motion" and thus not subject to the bar of collateral estoppel. Although a motion challenging the Illinois vehicle search was not filed prior to defendant's first trial, the success of defendant's new motion was necessarily dependent on defendant's capacity to challenge the search. As already noted, however, defendant did not appeal the trial court's earlier ruling that defendant, having abandoned the vehicle, had no legitimate expectation of privacy in it. Accordingly, the trial court, on remand, did not err in declining to entertain this motion.

Defendant next claims that special circumstances exist which warrant relitigation of his motion to suppress. See Enis, 163 Ill. 2d at 386. Defendant directs our attention to this court's opinion on post-conviction review in which we held that defendant's original trial counsel was ineffective in failing to investigate and present certain boot and tire evidence and defendant was entitled to a new trial. See Sutherland, 194 Ill. 2d 298-99. Defendant argues that this court's holding that counsel's representation at trial was ineffective rendered counsel's representation prior to trial suspect and negated any application of collateral estoppel on remand. According to defendant, this court's decision ordering a new trial should have alerted the trial judge on remand to permit defendant to renew his motions to suppress. Defendant further argues that a "new revelation" exists, namely, trial counsel's incompetence at the suppression motion hearing, which deprived him of a full and fair hearing. See Enis, 163 Ill. 2d at 387.

This court has recognized an exception to the bar of collateral estoppel where "special" or "exceptional" circumstances exist. Enis, 163 Ill. 2d at 386; Gilliam, 172 Ill. 2d at 506. Special circumstances have been found where a defendant is acquitted and thereby denied the opportunity to appeal the trial court's ruling. In such a case, collateral estoppel will not bar relitigation of the trial court's ruling in a subsequent proceeding. People v. Mordican, 64 Ill. 2d 257, 261 (1976). Similarly, where the evidence a defendant unsuccessfully sought to suppress in his first trial was not relied upon by the State, the defendant will not be precluded, on remand, from relitigating the trial court's ruling because the issue would have been considered moot in his first appeal. See People v. Savory, 105 Ill. App. 3d 1023, 1027- 28 (1982); see also People v. Smith, 72 Ill. App. 3d 956, 962 (1979) (holding that defendant was not precluded from relitigating issues on remand concerning the validity of a search warrant where issues were presented to, but not decided by, the appellate court).

Here, defendant has identified no special circumstances that prevented him from seeking or obtaining review of the trial court's denial of his suppression motion on direct appeal from his first trial or in his petition for post-conviction relief. Nor has defendant identified any case law supporting his argument that trial counsel's ineffectiveness in failing to investigate and present certain evidence during his first trial "negates" the applicability of the collateral estoppel doctrine on remand.

Defendant's further claim that he did not receive a full and fair hearing on his suppression motion is unavailing. Generally, the doctrine of collateral estoppel will only be applied if the party to be estopped had a " `full and fair opportunity to litigate the issue.' " People v. Pawlaczyk, 189 Ill. 2d 177, 189 (2000), quoting Vroegh v. J&M Forklift, 165 Ill. 2d 523, 532 (1995); see also Enis, 163 Ill. 2d at 387 ("[d]efendant does not suggest that he did not receive a full and fair hearing on his pretrial motions"). Here, defendant's claim that he did not receive a full and fair hearing is premised on the alleged incompetence of original trial counsel at the suppression hearing. This issue, however, could have been raised on direct appeal from defendant's first trial, but was not. See Sutherland, 155 Ill. 2d at 12-25. We note that defendant did claim, in his post-conviction petition, that "[t]he defense lost the ill-planned motion [to suppress] due to the lack of appropriate defense witnesses and attorney skill." Defendant did not pursue this claim on appeal from the trial court's denial of post-conviction relief. Issues that could have been raised on appeal, but were not, will be deemed forfeited. People v. Blair, 215 Ill. 2d 427, 443-44 (2005). Defendant cannot now avoid the effect of this forfeiture and, in turn, the bar of collateral estoppel, by recasting the issue of trial counsel's ineffectiveness at the suppression hearing as a "new revelation."

Defendant also argues that additional evidence exists which warrants relitigation of his motion to suppress. Where a defendant, on remand, points to "newly discovered evidence" that would have been pertinent to the trial court's ruling on the defendant's motion to suppress, relitigation of the motion may be warranted and the bar of collateral estoppel will not apply. Gilliam, 172 Ill. 2d at 506, citing People v. Holland, 56 Ill. 2d 318, 321 (1974). On remand in the trial court, defendant asserted that a "litany of new evidence" exists which warranted relitigation of his motion. The trial court did not find the new matter sufficient to overcome the bar of collateral estoppel. We now consider this evidence.

Montana Law

Defendant first asserts that the information that no Montana statute or case law gives validity to an Illinois search warrant was not provided to the Jefferson County judge when he was asked to sign the two search warrants in October 1987. Defendant explains that this information was first obtained from a Montana state judge in June 2002.

Information that no Montana law validates an out-of-state warrant would not have been pertinent to defendant's motion to suppress evidence seized pursuant to the warrant that was executed in Illinois. Although such information would have been pertinent to defendant's motion to suppress evidence seized in Montana, such information can hardly be considered "evidence" in the traditional sense of the word. See generally Black's Law Dictionary 595 (8th ed. 2004) (defining evidence as "[s]omething (including testimony, documents, and tangible objects) that tends to prove or disprove the existence of an alleged fact").

Even if we considered Montana law "evidence," Montana law was available for research and review at the time of the original suppression hearing. Merely conducting such research at a later date does not transform the information thus gathered into new evidence. Although new legal precedent could provide a basis for relitigating a suppression motion (Enis, 163 Ill. 2d at 387), defendant does not cite any such precedent.

In a related vein, defendant asserts that Officer Anthis and Jefferson County prosecutors were aware, at the time application for the warrants was made, that an Illinois search warrant may not be valid in Montana. Defendant cites to testimony from Anthis' deposition, taken in March 2002. Anthis testified that "preliminary discussions" about the validity of the warrant in Montana "may have" taken place in Illinois. He also testified that, "in talking to the officials out in Montana, they didn't know if the local judge would allow it [the search] or if we would have to reapply in the State of Montana." Defendant also cites to testimony from the May 2002 deposition of Officer Parker, who accompanied Anthis to Montana. Parker states, "There was general conversation about whether the search warrant would be honored out there [in Montana]." Defendant asserts that this information was not provided to the judge when he was asked to sign the two warrants.

Assuming, without deciding, that the officers' deposition testimony constitutes new evidence that was not available at the time of the suppression hearing, such evidence would not warrant relitigation of the suppression motion. Evidence that the officers harbored concerns about the validity of an Illinois warrant in Montana would not impact the issue of whether the warrant was supported by probable cause, or whether the warrant was, as a matter of law, valid in Montana.

Kell Park Incident

Defendant cites testimony from defendant's second trial concerning an incident at Kell Park on June 19, 1988. On that date, a group of citizens held a public forum to give their reasons why they believed defendant, who had not yet been indicted, was not involved in Amy Schulz's abduction and murder. As the speakers tried to address the crowd, a few individuals blew air horns and shouted. Officers Anthis and Parker were present in the park but did nothing to prevent the "disturbance" so the speakers could be heard. According to defendant, "[t]he failure of Anthis and Parker to act reflects negatively on their impartiality in their investigation of [defendant]."

Assuming that Anthis and Parker had a duty to prevent the so-called disturbance at Kell Park, we disagree that their failure to act necessarily "reflects negatively" on their investigation of defendant. In any event, this new evidence is irrelevant to whether probable cause existed for the issuance of the search warrants eight months earlier.

Uninvestigated Leads

Defendant cites evidence that Jefferson County police failed to pursue two leads that someone other than defendant murdered Amy Schulz. The first lead involved a report by three men who were in Kell on the evening of July 1, 1987. Approximately 10 minutes before Dennis Schulz, Amy's father, arrived in town looking for Amy, the witnesses saw a man driving a gray pickup truck pull a child up off the street and across his lap into the truck. The truck drove east out of Kell. Police created a composite drawing of the driver. Defendant notes that Officer Anthis testified at his deposition that it would have been logical to pursue this lead, and that Officer Parker testified at his deposition that he was not aware of any reports indicating that the lead was pursued. The second lead involved a report to police in El Dorado, Illinois, that a man had confessed to killing Amy Schulz. According to defendant, although this information was passed on to Jefferson County police, no action was taken. Defendant argues that information regarding these leads was not given to the judge when he was asked to sign the two search warrants.

Assuming, arguendo, that the foregoing evidence constitutes new evidence that was not available at the first suppression hearing, defendant fails to explain in what way this evidence was pertinent to the trial court's ruling on the suppression motion.

Defendant's Compliance With Search Warrant

Defendant asserts that Officers Anthis and Parker provided later deposition and/or trial testimony that defendant provided hair samples pursuant to the apparent authority of the Illinois warrant, not voluntarily, and that defendant was not given Miranda warnings when Anthis and Parker interviewed defendant in Montana. Defendant states that this information was not provided to the judge at the suppression motion hearing. We disagree.

Defendant testified at the suppression hearing that officers advised him that because he was not under arrest they had no reason to read him his rights. Officer Anthis did not contradict defendant's testimony or imply that he or Parker had, in fact, given defendant Miranda warnings. Defendant also testified at the suppression hearing that he challenged the authority of the Illinois warrant and initially refused to allow Anthis and Parker to execute the warrant for the hair samples. According to defendant's testimony, he acquiesced in the search only after the officers threatened to use force. Officer Anthis gave a different account of these events, testifying at the suppression hearing that defendant did not question the validity of the warrant and was cooperative in providing the hair samples. The later testimony of Anthis and Parker to which defendant now cites does not contradict or add to the testimony that was presented at the suppression hearing and thus does not provide a basis for relitigating the motion to suppress.

Preparer of Warrant Documents

Defendant asserts that Anthis and Parker testified during their depositions that they had not typed or dictated the warrant affidavits or the warrants themselves and had no idea who prepared these documents. Defendant concludes: "Thus, the author of these documents remains a mystery to this day."

The gist of the testimony from Anthis and Parker is that they could not recall, at the time of their depositions in 2002, who prepared the warrants and supporting documents for the searches conducted in 1987. Assuming that the identity of the individual or individuals who prepared the warrant documentation was somehow relevant to the issues raised at the suppression hearing, we conclude that the officers' failed memories on this point provide an insufficient basis to relitigate defendant's motion to suppress.

Tire Identification

Defendant cites deposition testimony from Anthis and Parker that they did not know who provided the information to them, prior to the drafting of the warrant affidavit, that the tire print at the crime scene was made by a Cooper Tire brand Falls Persuader tire. Defendant concludes that the source of this information also "remains a mystery to this day." Evidence that the officers could not recall, 15 years later, who provided the tire identification information incorporated into the warrant affidavit is not grounds to relitigate defendant's motion to suppress.

Defendant also argues that police misled the judge who issued the warrants about the tire print identification by failing to disclose in the warrant affidavit that Cooper Tire had already concluded that the tire print was not made by a Cooper Tire brand tire. Defendant cites two letters in the record dated September 25 and September 30, 1987, sent by Cooper Tire to David Brundage, the forensic scientist who analyzed the tire print. The letters state, respectively, that nothing in Cooper Tire's files "even looks close to this impression," and that the tire could be a "Goodyear Custom Super Cushion." Assuming, arguendo, that the two letters were not available to the defense at the time of the first suppression hearing, we conclude that this new evidence was insufficient to warrant relitigation of defendant's motion to suppress.

David Brundage testified at the suppression hearing about the method he used to identify the brand and style of tire that left the print at the scene. After narrowing down the number of possible manufacturers to three or four, Brundage contacted numerous dealers, manufacturers and distributors for assistance. He admitted that not all the responses he received verified his own conclusion that the print could have been made by a Cooper Tire brand tire. Brundage also testified that he received a telephone call from the product services manager at Cooper Tire confirming that the print could have come from a Cooper Tire brand tire. According to Brundage, that telephone call was received prior to October 22, 1987. The two earlier letters defendant cites do not necessarily contradict Brundage's testimony. Thus, we find no error in the trial court declining to revisit this matter.

Warrant Affidavit for the Illinois Vehicle Search

Defendant also contends that police used misleading information to obtain the October 28, 1987, warrant which authorized the search of defendant's vehicle after it had been transported to Illinois. Particularly, defendant asserts that police misled the judge who reviewed the warrant affidavit into thinking that defendant's boots could have left the print found at the crime scene despite the fact that police knew, on October 28, 1987, having inspected defendant's boots in Montana, that they could not have left the print. Defendant also asserts that police misled the judge into believing that defendant's vehicle was similar to the car seen by witness Cathy Simmons on the night Amy disappeared, despite the fact that, contrary to Simmons' description, defendant's vehicle did not have rust spots, and defendant's vehicle had a different taillight configuration. Defendant buttresses this claim by citing to a May 2002 interview with Simmons in which she reported, after viewing photographs of defendant's vehicle, and the artist's sketch of the taillight assembly of the car she saw on the night of July 1, 1987, that defendant's vehicle was not the car she saw that night in Kell.

We are not persuaded that information concerning the boots and vehicle identification constitutes newly discovered evidence. Assuming, however, that this evidence was unavailable at the time of the earlier suppression hearing, we nonetheless conclude that such evidence provides an insufficient basis to revisit defendant's suppression motion. Defendant's argument assumes that he had a legitimate expectation of privacy in the vehicle to which fourth amendment protection would apply. But as already noted, the trial court determined that defendant had abandoned the vehicle. " `Abandoned property is not subject to Fourth Amendment protection.' " People v. Pitman, 211 Ill. 2d 502, 519 (2004), quoting United States v. Basinski, 226 F.3d 829, 836 (7th Cir. 2000). Furthermore, because defendant did not seek review of this ruling in his direct appeal from his first trial or in his post-conviction petition, defendant has forfeited review. See Blair, 215 Ill. 2d at 443-44. Accordingly, his present claim challenging the search of the vehicle in Illinois is rendered moot.

False Information in Affidavit

Defendant also argues that the search warrant affidavit contained numerous falsehoods and omitted statements which misled the judge into finding probable cause to issue both the October 22 and October 28 search warrants. Defendant suggests that if an affidavit with the correct information had been submitted, the judge would not have found probable cause.

We have reviewed the "corrected" version of the warrant affidavit submitted by defendant, and note that some of defendant's additions to the affidavit include information the police first obtained during their trip to Montana. For example, defendant has added language indicating that the Texas Steer brand boots, which were among defendant's possessions in Montana, "were a different style" and the "imprints did not match the boot imprint found at the crime scene." Defendant also added language stating that the "rear light configuration" on defendant's vehicle, which was first viewed in Montana, was "different from the rear lights observed by witness Simmons" on July 1, 1987. Thus, defendant's argument that the corrected version of the affidavit would not have supported a probable cause finding for the issuance of a search warrant can only apply to the October 28 warrant obtained after police returned from Montana and not the earlier warrant. With this limitation, we consider defendant's argument.

The purported corrections that defendant has made to the affidavit do not necessarily involve evidence that was not available at the time of the earlier suppression hearing. Only "newly discovered evidence" will justify a departure from the collateral estoppel doctrine. Gilliam, 172 Ill. 2d at 506. This aside, we find defendant's present claim is moot. The warrant issued on October 28, 1987, authorized a search only of the vehicle, not defendant's person. As already noted, however, defendant's ability to challenge the search of the vehicle is dependent on whether he had a legitimate expectation of privacy in the vehicle at the time of the search. The trial court determined this issue adversely to defendant and defendant never sought review of that ruling.

In summation, we find that the issues raised in defendant's four motions to suppress that were filed on remand raised issues previously litigated in defendant's motion to suppress filed prior to his first trial; defendant failed to appeal the earlier denial of his motion to suppress; and defendant has failed to identify special circumstances or newly discovered evidence that would warrant relitigation of the trial court's earlier pretrial ruling. Thus, the trial court on remand did not err ...


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