Appeal from the Circuit Court of Cook County. Nos. 05 CR 1516 05 CR 6560 Honorable Timothy J. Chambers Judge Presiding.
The opinion of the court was delivered by: Justice Cunningham
JUSTICE CUNNINGHAM delivered the judgment of the court, with opinion. Presiding Justice Quinn and Justice Connors concurred in the judgment and opinion.
¶ 1 This appeal arises from a July 21, 2009 judgment entered by the circuit court of Cook County which found the defendant-appellant, Steven Louis Zirko (Zirko), guilty of two counts of first-degree murder and one count of solicitation of murder. Zirko was sentenced to two natural life sentences for murder and a concurrent 30-year sentence for solicitation of murder. On appeal, Zirko argues that: (1) the trial court erred when it instructed the jury on the theory of accountability for the murder charges; (2) the trial court erred when it admitted evidence of Zirko's Internet search history; (3) the trial court erred when it denied Zirko's motion to quash arrest and suppress evidence; (4) the plaintiff-appellee, the People of the State of Illinois (State), failed to prove beyond a reasonable doubt that Zirko committed murder; (5) Zirko's trial counsel was ineffective for requesting that the solicitation of murder and murder charges be joined; (6) the State failed to prove beyond a reasonable doubt that Zirko committed solicitation of murder; (7) the trial court failed to comply with Illinois Supreme Court Rule 431(b) (eff. May 1, 2007); and (8) this matter should be remanded for a proper inquiry into Zirko's pro se claims for ineffective assistance of counsel.For the following reasons, we affirm the judgment of the circuit court of Cook County.
¶ 3 On December 13, 2004, Mary Lacey (Mary) and Margaret Ballog (Margaret) were found dead in Mary's house at 1901 George Court, Glenview, Illinois. On January 12, 2005, Zirko was charged with the first-degree murders of Mary and Margaret, and with solicitation of murder. The trial commenced on June 8, 2009 in the circuit court of Cook County.
¶ 4 Zirko began dating Mary in 1994. At that time, Mary had two children from a previous marriage, Susan Lacey (Susan) and Raymond Lacey (Ray). In 1994, Mary, Zirko, Susan and Ray moved to Fort Lauderdale, Florida. Mary and Zirko then had two other children; Zachary, born in 1996, and Dylan, born in 1998. Susan and Ray testified that Zirko began physically abusing Mary after Dylan was born. Ray testified that in March 2000, Ray was at his aunt Stephanie's house when Mary ran in crying and stated that Zirko hit her. On December 26, 2002, Ray and Susan witnessed Zirko hit Mary in the mouth, knocking her to the floor. In spring 2003, Mary and Zirko ended their relationship and Mary, Ray, Zachary and Dylan moved to 3120 N. Parkside, Park Ridge, Illinois (Park Ridge house). Zirko moved in with his parents at 5806 N. Richmond, Chicago, Illinois (Zirko's house).
¶ 5 Mary received an order of protection against Zirko and set up a system for the children's visitation with Zirko in which Zachary and Dylan would get dropped off at the home of Mary's sister, Tracy Youhanna's (Tracy) house, and Zirko would pick them up from Tracy's house for visitation. Ray testified that this system was established because Mary did not want Zirko to know where they lived. On September 13, 2003, Irma Delaguardia (Irma) testified that she lived across the street from Mary and saw Zirko approach Mary's minivan, which was parked in front of the Park Ridge house. Irma testified that Zirko took something out of the minivan, walked up to the front of Mary's building where the mailboxes were located, then returned to his car and drove away. On that same day, Ray testified that he was driving to his girlfriend's house when he saw Zirko's car parked down the street from the Park Ridge house. Ray continued driving down the street past Zirko's car and Zirko began to follow him. Zirko followed Ray for a few turns and then Ray got scared and drove home. On December 9, 2003, Zirko was convicted of violating the order of protection. In October 2004, Mary, Zachary and Dylan moved to 1901 George Court, Glenview, Illinois (Mary's house).
¶ 6 On December 3, 2003, Zirko went to an appointment with his chiropractor, Dr. Chard Larson (Dr. Larson). Dr. Larson had treated Mary, Zirko, Zachary and Dylan over a period of time. Dr. Larson testified that during the December 3, 2003 appointment, Zirko was very upset and was complaining about Mary using his minivan and getting tickets. Zirko asked Dr. Larson if he knew anyone that could help him get his minivan back, and Dr. Larson gave Zirko's phone number to Perry Maslo (Perry). Perry met with Zirko in January 2004. Perry testified that Zirko complained about Mary and said that he wanted his kids back. Perry also testified that Zirko said that he wanted to "off" Mary. Perry told Zirko that he would have to think about it and that they should have another meeting. At their second meeting, Zirko brought a picture of Mary and said that he wanted her "offed." Perry suggested planting drugs on Mary instead, but Zirko refused and said that he still wanted her "offed." Perry agreed to run surveillance on Mary for $1,000. Zirko paid Perry and after Perry followed Mary once, he asked Zirko for more money. Zirko refused and his communication with Perry ended.
¶ 7 Throughout 2004, Zirko had several appointments with Dr. Larson. Dr. Larson testified that Zirko became increasingly upset over his situation with Mary. Dr. Larson testified that Zirko asked him if he knew anyone who could break Mary's legs. Dr. Larson felt at that point that Zirko was just venting. At a subsequent appointment, Zirko told Dr. Larson that breaking Mary's legs would not be enough, and Zirko asked Dr. Larson if he knew anyone that would kill Mary. Dr. Larson testified that he told Zirko that he would "look into it," but had no intention of actually following through. Dr. Larson felt that he had control of the situation and could calm Zirko down by saying he would look into Zirko's requests. Dr. Larson testified that Zirko's requests became more real to him when Zirko told Dr. Larson that he had a $25,000 life insurance policy and $10,000 cash that he would pay to someone to kill Mary. Zirko talked about this multiple times and repeatedly asked Dr. Larson if he had found anyone to kill Mary.
¶ 8 In June 2004, Zirko told Dr. Larson that he would be traveling to Australia with his girlfriend, Kelly St. John (Kelly). Zirko said this would be a perfect time for someone to kill Mary because he would have the alibi of being out of the country. Dr. Larson told Zirko he would look into it. While in Australia, Zirko called Dr. Larson numerous times and left messages asking whether it was time for him to come home. Dr. Larson understood the messages to mean that Zirko was inquiring whether he had found someone to kill Mary. On July 9, 2004, Zirko had another appointment with Dr. Larson. Zirko told Dr. Larson that he was upset that his plan to have Mary killed while he was in Australia did not happen. At this point, Dr. Larson told Zirko that he would never find someone to kill Mary. Zirko left Dr. Larson's office angrily, and Dr. Larson did not expect to see him again.
¶ 9 However, on October 1, 2004, Zirko visited Dr. Larson's office for a scheduled appointment. Zirko told Dr. Larson that he had a plan to kill Mary and he needed Dr. Larson's help in establishing an alibi. Zirko told Dr. Larson that he would start a pattern of visits to Dr. Larson's office. Zirko said that once the pattern was established, he would need Dr. Larson to swipe his credit card to show that he was at Dr. Larson's office when he really was not there. Zirko told Dr. Larson that this would need to take place at his Palatine office rather than his Chicago office because the Palatine office did not have security cameras. Dr. Larson claimed that he agreed to help Zirko with the alibi because he was scared. Dr. Larson swiped Zirko's credit card the following Friday even though Zirko was not there.
¶ 10 Dr. Larson soon felt that he no longer had control of the situation and contacted a friend, Darryl Daley (Detective Daley), who was a detective for the Chicago police department. Detective Daley told Dr. Larson to tell Zirko that he found someone to kill Mary so they could insert another officer into the situation to pose as the killer. On October 13, 2004, Dr. Larson met with Zirko again. Dr. Larson told Zirko that he found someone to kill Mary and asked if Zirko wanted to meet the killer. Zirko refused and said that he was going to get his father to help him since his father was a bagman for the mob and was the only person he could trust. Zirko told Dr. Larson that the plan was well thought out and they were going to do a few dry runs. Zirko mimed a gunshot during their conversation about the plan. Zirko also asked Dr. Larson to swipe his credit card the following morning. Zirko called Dr. Larson the next day and told Dr. Larson that he did not need help anymore. Dr. Larson called Detective Daley because he was worried that Zirko knew he had spoken with police. Detective Daley told Dr. Larson to contact the Palatine police because the conversations with Zirko took place in Palatine.
¶ 11 On October 15, 2004, Dr. Larson met with two detectives from the Palatine police and said that he would cooperate with the police. The detectives asked Dr. Larson if he was willing to wear a wire and gave him a deadline of October 18, 2004 to decide. In the meantime they set up watch on Mary's house and talked to Mary about the murder-for-hire allegations. Dr. Larson failed to respond to the detectives by the October 18 deadline, so they decided to bring Zirko in for questioning. After speaking to Zirko on October 18, 2004, the detectives released Zirko without charging him and closed the case.
¶ 12 William Heichman (William) testified that he attended anger management classes with Zirko in September and October 2004. William testified that Zirko asked him for help in finding a gun. He told Zirko that he would talk to his cousin about getting a gun. Zirko also offered William $10,000 to intimidate Mary because she would not let Zirko see his kids. Mike Lazar (Mike) also testified that he attended anger management classes with Zirko. Zirko asked Mike if he knew anyone that could "exterminate" Mary. Zirko told Mike that he could offer $50,000 to anyone that could do the job. Mike did not take Zirko seriously and thought that someone was trying to set him up.
¶ 13 Kelly testified that she started dating Zirko in March 2004. During their relationship, Zirko worked as piano player on commercial cruise lines, and Kelly would accompany him on cruises.
Zirko often stayed with her at her condo in Chicago Ridge, Illinois. Zirko also frequently used her computer and her jeep. Kelly testified that Zirko began complaining about Mary in October 2004. In November 2004, Zirko went with Kelly to a hospital clinic where Kelly had hand surgery. He took some latex gloves from the clinic. On December 6, 2004, Kelly and Zirko had a conversation about Mary preventing Zirko from seeing his kids. Afterwards, Zirko asked Kelly if she "knew anyone." Kelly got very upset and told Zirko not to talk that way. Zirko stayed with Kelly every night from December 6 to the morning of December 13, 2004. On December 9, 2004, Zirko went to court on a child custody matter. On December 11, 2004, Kelly and Zirko filled Kelly's jeep with gas after seeing a movie. Later that night Zirko began complaining of an upset stomach. On December 12, 2004, Kelly and Zirko went grocery shopping and then returned home. Zirko offered to take Kelly's jeep in for an oil change the next day. From when they filled up the gas tank in Kelly's jeep on December 11 to the morning of December 13, 2004, they only drove 5 or 10 miles. On December 13, 2004, Zirko dropped off Kelly at a train station near her house around 8 a.m.
¶ 14 Kelly testified that on December 13, 2004, Zirko was wearing green khaki pants, a black sweater, a long green trench coat, and all-white leather tennis shoes when he dropped her off. At 2:20 p.m., Kelly got a voicemail message from Zirko's mother saying that Mary was injured. When Kelly talked to Zirko later that day, Zirko said that he had been at home sick all day and did not take her jeep in for service. He asked Kelly not to tell anyone about their relationship and to say that he had been at his parents' house all weekend. Zirko called later on and said that he had nothing to do with what happened to Mary. Shortly after, Kelly received another call from Zirko's mother. After the conversation, Kelly went downstairs to look at her jeep. She noticed that there were several "white marks" and "white liquid" was spilled inside her jeep. Kelly testified that the white marks and white liquid were not on her jeep when Zirko dropped her off in the morning. Kelly began trying to clean the white marks, and turned on her jeep to stay warm. She then noticed that there was only a half-tank of gas left.
¶ 15 On December 14, 2004, Kelly took her jeep to the dealership for an oil change. When she picked up her jeep she noticed that the white marks were still there and she tried to clean them with wipes that she had purchased. Again, she was unsuccessful and placed the wipes in her work bag. At 9:30 p.m., the Glenview police came to her door. Kelly initially told the detectives that she had not seen Zirko in a few days and that he was at his parents' house the whole weekend. She showed the detectives her jeep and then returned to her condo. After she returned to her condo she became upset and called her mother, and her mother told her to tell the police the truth. Kelly then went back downstairs and invited the detectives back into her condo. She told them about Zirko's whereabouts over the weekend and Monday morning, how he advised her not to tell anyone about their relationship, and about the white marks on her jeep. Kelly looked at a picture of Zirko wearing sweat pants, a jacket, and Converse shoes and said that he was not wearing those clothes when he dropped her off on December 13, 2004. Kelly gave the detectives consent to search her jeep and identified Zirko's day planner which had "1901 George Court" written in it. She testified that Zirko had eczema but did not see any cuts or scrapes on his hands when he dropped her off.
¶ 16 Gary Ritchko (Gary) testified that he began dating Mary in April
2003 and lived with her, Zachary, and Dylan at Mary's house. Mary
broke her ankle on December 8, 2004, so her mother Margaret was
staying at the house to help them with the kids. On December 13, 2004,
Gary left the
house at 8:30 a.m. to meet his lawyer. Mary dropped the kids
off at school and returned home to wait for Comcast to install a land
line. Mary wanted a land line installed because she was afraid of
Zirko. At 10 a.m., Gary got a call from Comcast saying that they would
be at the house before noon. Mary's nephew testified that he was at
his parents' house and heard the phone ring at 10:22 a.m. He did not
answer it but heard Mary leaving a message on the answering machine.
At 11:05 a.m., Gary got call from a Comcast technician saying that no
one was answering at Mary's house.
¶ 17 Tracy testified that she talked to Mary at 10:15 a.m. and arranged to drop her daughter off at Mary's house later that morning. Tracy left her house around 11:15 a.m. and stopped at Burger King. Tracy called to ask Mary what she wanted from Burger King but no one answered. Tracy then pulled up to Mary's house and saw the Comcast technician outside the house. Tracy opened the front door and saw Margaret lying near the front door covered in blood. As she entered the house, she also saw Mary laying in the doorway to her bedroom covered in blood. Tracy testified that Zirko called her in July 2003 and threatened to "demolish" Mary's face. Tracy testified that neither Mary nor Margaret would have allowed Zirko into the house.
¶ 18 Evidence technicians from NORTAF, an investigative unit made up
of members from police departments of 13 municipalities, began
processing the crime scene around 12:30 p.m. on December 13, 2004.
Evidence Technician Michael Wasowicz (Technician Wasowicz)
photographed and videotaped the scene. He testified that there was no
sign of forced entry. Technician Wasowicz collected four shell casings
from inside the house, found a bloody partial shoe impression in the
living room, and noticed blood near the door knob on the front door.
Evidence Technician Lawrence Yocus collected bullet fragments, shell
casings, and trace evidence including fibers, and measured
blood spatter. None of the trace evidence recovered could be
attributed to Zirko. Two sets of tire tracks were found near the
driveway of the house, but the impressions did not match Zirko's car
or Kelly's jeep. Technician Wasowicz testified that, although Zirko's
fingerprints, DNA and hair were not found at the scene of the crime,
that does not mean that he did not commit the murders.
¶ 19 Dr. Mitra Kalaleker performed the autopsies on Mary and Margaret. Margaret was shot three times and died as a result of the gun shot wounds. Mary was stabbed 48 times, including a cut to her jugular. Mary was also shot three times. Mary died as a result of the stab wounds with the gun shot wounds acting as a significant contributing factor.
¶ 20 Zirko's cousin Stephanie Primo testified that she called Zirko's house and went over to the house around 2 p.m., but no one answered. Zirko called her back and said that he had been at home sick all day. Zirko's neighbor, Vincent Vaccarella, testified that when he came home at 10:30 a.m., he did not see Zirko's car parked in its usual spot on the street. Evidence technicians also recovered a McDonald's bag in the kitchen of Zirko's house with a ...