*1 alleged this, in actions of counsel combination the other believe that counsel. by defendant, constitutes ineffective aid of reasons, circuit court of judgment For the abovementioned Peoria is affirmed. County
Affirmed.
ALLOY, SCOTT, J., J., P. concur. ILLINOIS, Plaintiff-Appellee, THE PEOPLE OF THE OF STATE SCHLEMM, Defendant-Appellant. LEE JIMMIE Fourth District No.
Opinion filed March 1980.
TRAPP, J., concurring part dissenting part. Wilson, Justice, Foust, Richard Jeffrey D. Appellate all of State J. Jeff Office, Springfield, Defender’s appellant. Lipsky, Attorney, Nolan Petersburg (Marc State’s Gary D. Towler and J. Anderson, Attorneys Appellate Commission, both of State’s counsel), Service People. for the *3 Mr. GREEN opinion delivered the of the court: JUSTICE Defendant, Schlemm, Lee was convicted the circuit court Jimmie
of County Menard of two counts of murder and two counts of concealment of homicide. Defendant was years sentenced to 38 for each years concealment, murder and 10 running each with all sentences consecutively. On appeal (1) he asserts error in the trial court’s refusal to suppress searches, evidence seized during (2) various admission of previously evidence (3) ordered suppressed, imposition of consecutive sentences, (4) imposition and of extended terms imprisonment of for the two convictions of concealment aof homicide.
Charges against defendant for the murders and concealment of the homicidal deaths Eugene Ferry of and Teeter were filed on John June 8, and respectively. A jury began all concerning charges on November 1978. There presented evidence was that the two men had 20,1978, been missing from March until their bodies were found tied to bricks at the Sangamon bottom of the Ferry’s body River. was found April on but Teeter’s was not discovered until 1978. June Proof of guilt all circumstantial. A law enforcement officer testified at trial that April on he searched trailer where trailer, (2) in the (1) and found bullet holes living had been
defendant floor, be similar to on the later to stains and human hair both shown blood Teeter, Ferry. to belonged and to (3) possessions later shown have of having microphone as been microphones cords He also identified and body in Ferry’s tying trailer. those found the These cords resembled body was found on that able police A testified that cord river. technician microphones only to to because make an electrical connection one of that the placed plug. had been on the The technician also stated solder marks to the tool microphone corresponding socket on showed tool modify positively the cord state that the plug used to but could not many left both was also impressions. presented same tool Evidence of search personal clothing the victims’ effects and were found of defendant, staying. of an had the house aunt of where defendant been searches, pieces In addition to other the evidence found the several testimony, linked to the Defendant’s own evidence defendant murders. witnesses, (1) as that defendant testimony well as the of other indicated Illinois, Jacksonville, and Springfield drove Teeter’s rented car from to morning Ferry disappeared abandoned it after Teeter and there car, (although an been down it still attempt sponge had made to had a putrid odor was found to contain blood specimens), human and hair (2) had fired his gun on which was Bridge bloodstained Cascade place found, located near the (3) given where the had his bodies were attorney gave belonging attorney tooth his in turn to Teeter which police officers. (I) gun
In his his were testimony, defendant stated shells from Bridge target found on the he had done some merely Cascade because there; trailer; his shooting (2) got he did not know how Teeter’s tooth misfire;(4) holes in his of an (3) the bullet home the result accidental merely Ferry they storing personal he was effectsof Teeter and had do; (5) him he had car attempted get only asked rid of the named “D. paid because individual him so. Witnesses C.” to do who had stated be friends “D. C.” denied knowing anyone having that name. part
Defendant’s error denial first claim of arises from court’s in searches pretrial suppress his the evidence seized motion trailer and the house defendant’s aunt. after Ferry’s suppression hearing, presented
At the they by a believed police person was found officerswere informed body *4 and Teeter on (1) Ferry that: had last seen Ferry’s to be mistress she 19, 1978, meeting a with to be headed for they purported March when 20, March the on defendant; (2) Ferry telephone and with on spoke she With this 1978, spent night he had the defendant. and said he 1978, 11, the landlord of April contacted the officers on information sequence following the landlord testified trailer. The defendant’s April 10 him on rent called in arrears on had been Defendant who events. send night that and would he, defendant, moving was out said that adver- newspaper a placed then The landlord key. landlord 11, officers April being rent. On trailer as for listing the tisement expla- landlord’s Upon the trailer. search permission to requested au- authority to that he situation, him the officers told of the nation key, but had not returned the entry, their he did. The tenant thorize so fail to do departing it not unusual for tenants landlord stated that was repairman, to a he broke a key given this. As the had been landlord’s they entering surprised Upon they window and entered the trailer. were a brief view of appeared substantially find that furnished. After interior, they a all they get that warrant and officers stated should testified, telling he admitting the trailer. the landlord left Defendant at he landlord he do so moving was out but said that told the would end of the month. trial court
A seized. The warrant was later obtained and evidence suppressed items which were not listed the warrant but refused seized that all suppress those which were so listed. Defendant maintains the search suppressed evidence should have been because affidavit for event, because, was the any warrant was insufficient and the search rights. entry fruit of an fourth We violation amendment summarily. complaint the first The the warrant dispose of contention for upon seeing in the was based an officer’s statement of bullet holes trailer have to showing blood the floor. Defendant would argues him identify made that the a ballistics the holes as expert officer was v. citing People holes, Fiorita bullet N.E. (1930), non-ballistics-expert police where that a could not held officer Here, cause, trial. probable make ballistic at the issue was comparisons ordinary and an police properly officer could conclude that holes made bullets. complaint probable showed cause. entry into the propriety original of the officers’ they and the a more presents
trailer short search then conducted complicated problem. pendency It is well during established lease a landlord premises, cannot consent to a search leased to a apparent authority party is insufficient for third to consent alone (Chapman v. United States (1961), warrantless search. U.S. 5 L. 776; People Bankhead Ed. 2d 81 S. Ill. 2d (1963), Ct. v. Miller 705; 407.) N.E.2d 40 Ill. 2d N.E.2d But emerged, despite general authority this has rule doctrine” “common United States may general which be viewed as an exception to rule. In Matlock 164,39 242, 94 S. it was 415 U.S. L. Ed. 2d Ct. held that a woman to a who shared bedroom with defendant could consent *5 money. search which resulted in the bank The court seizure of stolen stated, prosecution justify by the a search seeks to warrantless “[W]hen proof consent, voluntary proof it is not limited to that consent was defendant, given by may the but show that search was permission to obtained party possessed authority from third who common over or other relationship premises sought sufficient to the or effects to be (415 164, 171, 39 242, 249-50, 94 inspected.” U.S. 988, 993.) L. Ed. 2d S. Ct. The Supreme United States Court went explain on to “common authority” in a footnote where stated: is, course, authority
“Common
the
implied
not to be
from
property
mere
in
party
property.
interest
third
has
the
The
authority which justifies
third-party
upon
the
consent does
rest
not
the law
property,
legal
with its attendant historical and
* * *
refinements,
property'
but rests rather on mutual use of the
by persons generally having joint access or control
for most
purposes,
recognize
any
so that
it is
to
that
of the
reasonable
right
right
permit
inspection
coinhabitants has the
the
his own
and that the others
the risk that
have assumed
one of their number
164, 171
might permit the common area to be searched.” 415 U.S.
n.7,
n.7, 94
988, 993
People
Accord,
39 L. Ed. 2d
S. Ct.
n.7.
v. Stacey (1974),
Ill.
(holding
2d
As this recognized, authority court has must be based the common upon a genuine parties, rather than contrived understanding between People Baughman solely property App. from In 47 Ill. notions. power 3d 361 N.E.2d this held State did not have court bought anticipation consent to a which the State search of the home construction, highway sale the former of the house since after the owners permitted by house an oral under- temporarily remain standing any which did not that contemplate parties would share degree of authority. common
In the appeal, case on the issue is whether the trial court could properly have landlord a upon found defendant conferred authority point common On this to allow others to view the trailer. v. Marino App. court found challenged a search warrant controlling. In that case defendant his upon during which was based seized search of consensual police former told that defendant residence. owner of residence residence, and the longer things no lived there but still stored some at that During police their search found permitted police owner to search. there, upon this information goods that defendant had stored stolen The warrant they apartment. obtained a search warrant for his new Marino stands for the that the owner upheld proposition on appeal. agreed parties a search after the right to consent to property has all of though yet tenant has not removed tenancy even the former end possessions. his testimony the landlord’s properly trial court could have believed him, defendant, trailer he, moving out of the defendant told an defendant would
on the Such assertion night of conversation. usage rights to exactly same of common type have created Matlock premises trailer that existed reference to would, Marino. But we that such assertion conclude move, authority to after confer the landlord night proposed him so to do accompanying at least enter the trailer and to allow those reasonably Clearly with him. enabled landlord would have (See Matlock, U.S. so. authority believe that he to do *6 988, 996 n.14, 39 253 n.14, 94 n.14.) The does L. Ed. 2d S. Ct. evidence trailer, they in the not indicate that once the landlord and the officers were any took other than as the blood-stained things action to view those such rug sight Upon all within plain upon entering. and bullet holes their their immediately the finding occupied, group the trailer to be still retreated trailer. is whether warrant to search the It doubtful obtained did, group’s If it not have exceeded conduct constituted a search. would his through telephone defendant authority impliedly given by refusing to The trial did not err conversation landlord. court suppress in question. the items any at
The trial court evidence seized the home suppress refused to of aunt. The sole as to this seizure was the sufficiency complaint support to issuance of the warrant. The complaint set showing forth information that was the last (1) defendant person victims; (2) to see defendant to of attempted dispose had car; blood-spattered Teeter’s to (3) linking evidence defendant the crimes had had Bridge; (4) been found the trailer and at Cascade defendant earlier; days (5) been his wearing belonging seen coat to Teeter by a given personal days mistress had been effects of victims 14 earlier friend for defendant and of defendant who said he them storing defendant; give (5) asked and his the mistress them to house; living missing; aunt’s Teeter was (6) mistress had been at the (7) finding Ferry’s body. the circumstances set complaint maintains this warrant failed to
Defendant that the be forth the information to that a crime had been committed showed crime, if any probable too indicate stale to cause shown, would still at the home. obviously probable cause complaint sufficient to show at Ferry defendant had and had battered Teeter. murdered least issue the house was too linking of whether the information offense to exist, requires Although stale more discussion. no hard and fast rules delays courts of this State held that of 8 and 11 days between the time which affiant by contraband is seen and the time the is complaint sufficiently probable (People made are close time to establish cause 327; Montgomery (1963), People McCoy 27 Ill. 2d 189 N.E.2d App. 483). significant This is when one reasonably expect considers one would not items of noncontraband value, effects, evidentiary personal mere as as disappear quickly such as expect contraband items. Nor would one instrumentalities of an ongoing disappear quickly single crime to as as instrumentalities of a criminal act. is Perhaps the test best stated Professor LaFave his treatise, LaFave, §3.7(a), (1978): Search and Seizure at 688
“Particularly investigation prior when the crime under is a murder, like, rape, burglary, robbery clearly or not a fruits, offense, and the is continuing desire to search for the crime, which prior instrumentalities or evidence of the factor likely emerge important is as the most consideration is the nature property sought. objects likely which is Some are to be committing an a substantial person retained such offensefor likely period, disposed promptly. while others are highly incriminating item of Obviously, or consumable personal likely long remain in as an property place less one item which is not which is innocuous property consumable or incriminating.” itself or particularly here, agree applied We with Professor LaFave’s test. As crime. If continuing disappearance suggested ongoing of Teeter days likely he would be defendant had worn Teeter’s coat earlier earlier, days have at least it. If victims’effectshad been stored kept *7 Although in likely possession. some of still defendant’s them would when the complaint explicitly defendant asserts that the did not detail home, overly latter were taken into the aunt’s we deem items 102, 13L. (United v. 380U.S. objection technical States Ventresca 741). properly suppress Ed. 2d 85 S. Ct. trial refused to The court items seized from the house. is a bearing upon the convictions other contention of the first which has been raised for
unique problem fourth amendment hearing, suppressed time At the court had appeal. suppression in search those items seized at the trailer which had not been listed microphone were the premises. Among warrant for those those items Ferry’sbody microphone and the cords similar to those found tied around actually which was make an electrical the cord able to connection Ferry’s body. previously, as As stated having identified been found on modification, of a only because made connection microphone cord and During the microphone. the cord on both signs appeared of which were tendered trial, significance items of little and other course of these objection. without admitted into evidence by the State and the admission becomes whether this court thus before require would error which this amounted to evidence constitutional a reasonable beyond “harmless as because cannot be classified reversal in which merely procedure State doubt,” one of or whether the error raise below. failure to by case it be waived would N.E.2d 856. Pickett (1973), 54 Ill. 2d argument support nor his suppress Neither defendant’s motion that were seized in the trailer that items had been thereof contended necessary to execute searching beyond areas obtained officers fruit Rather, here, that the search was the unlawful argued warrant. he upon was issued that the warrant original entry of an impermissible items indicated that the unlisted complaint. an insufficient No evidence warrant. properly were seized in areas not searched execution warrant and a minute search Indeed small items were listed several Nevertheless, likely necessary to find them. would trial, Later, at court all on the warrant. suppressed items not listed were found microphone cords and evidence introduced showed items. for the other places permissible it was to search where hearing, suppression at the motion to been denied suppress Had the hearing at produced this determined that the evidence and had court motion, this could consider justify suppression did not denial of the court the evidence introduced at trial to denial uphold suppression (People Braden 808.) motion. 34 Ill. 2d In doctrine, commenting upon the has stated: above Professor LaFave appellate may “The notion that the trial record be used the fact that uphold notwithstanding court to seizure search or amount of failing suppress erred in on the lesser lower court attractive one— hearing is an produced pretrial evidence at the was not all, amendment after if it that the fourth appears now violated, be entitled to windfall why then should the defendant LaFave, §11.7(c), his Search and Seizure reversal of conviction?” at (1978). rule, to the Braden
By analogy at the may by looking we conclude entire record that the were not taken violation microphone cords and nevertheless,with faced, defendant’s fourth We are right. amendment problem whereby suppressed first procedure of whether the the court was violative of and then admitted it into evidence right. constitutional
648 admitting trial the evidence after had been
The effect of the court’s suppressed ruling was to of Because under suppression. reconsider Supreme 604(a) (73 suppression Rule Ill. R. of 604(a)) Court 2d the order rights of amendment is of evidence found seized violation fourth granting trial order appealable, unappealed Illinois deems the court’s at trial to suppression be the law the case and holds reconsideration of 878; v. Taylor 50 2d (People (1971), Ill. error. However, 500.) N.E.2d App. 3d 282 some other Roland trial, a under jurisdictions permit trial court the course of some circumstances, though even suppression an order reconsider 465; (5th 1975),524 order States v. Scott Cir. F.2d appealable. was United 592; Greely (D.C. 1970), Superior 425 Madril v. United States v. Cir. F.2d Cal. P.2d 123 Cal. Angeles County (1975), Court Los 3d Rptr. 465. trial its suppression The effect of the order to reconsider court’s ruling. that to holding No case has been called to our attention do so rights. divergent constitutes a violation of constitutional jurisdictions given type problems treatment other these suppression power convinces us that the of a trial court reconsider ruling governed by procedure the State is State rather against Accordingly, than law. unless record mandated constitutional procedural considering showed that addition error of admitting suppression ruling, prejudicial there been error had also amendment, violating resulting evidence from a search the fourth failure procedural error was waived to raise below. admitting microphone Thus in of the cord and after it most, which, the trial at suppressed, court committed error at procedure was one of State and was not called to the court’s attention object trial. admission of at By failing to to the these items motion, raising in his waived error. The post-trial the issue insignificant, with any suppressed other was so admission items proof, beyond be harmless reasonable doubt. reference to as to 18, 17 705, 87S. Chapman U.S. L. Ct. 824. Ed. California stated, the reasons we affirm convictions. For murder to have been Defendant asserts consecutive sentences for Unified impermissible 8—4(a) section Code under terms of 5— (Ill. Stat., 8—4(a)). Supp., par. of Corrections Rev. ch. 1005— which That sentences offenses prohibits section “consecutive during of a of conduct which there part single committed as course the criminal unless one change objective” no substantial the nature of a Class in which the defendant felony the offenses was X or Class given statutory is classification bodily injury. As murder inflicted severe is the from X Class the issue to be addressed separate apart Class or “single fall course of question of whether two murders into conduct” category. killings. showing time between the two span
Here there no to the however, they together, Even if occurred the consecutive sentence close *9 People necessarily prohibited. would not have been In v. Smrekar 379, 848, 68 Ill. App. upheld 3d 385 N.E.2d consecutive sentences were for by gun murders committed because the rapid shots fired succession evidence showed the one victim was a in an against witness upcoming trial and the other victim was the witness’ wife. This court held that since against one victim was to be a witness defendant and the other was merely spouse, was a murder showing separate there sufficient intents had justify imposition been formed to of consecutive sentences. 606, 645,
In People Bellamy (1972), App. 8 Ill. 3d 290 N.E.2d murder and attempted proper murder convictions were held to be victims, subjects sentencing for consecutive there separate because were elements, separate separate and Similarly, People crimes. Davis 948, 723, 20 Ill. App. 3d 314 N.E.2d for consecutive sentences murder attempted upheld though single episode murder were even involved, for the that separate reason victims were involved. In 793, v. Lindsay (1978), 67 Ill. App. 3d 384 N.E.2d defendants given three consecutive sentences on two counts of and one murder count of attempted going murder. The two murdered victims were testify against brothers, one of the defendant’s and the third was a witness to the rejected murders of the other two. The court 8—4(a), stating: contention that consecutive sentences violated section 5— single “We do not believe that the course of conduct rule adopted to free a defendant from the consequences of series crimes, acts, involving separate against committed several individuals. Such encourage multiple rule would homicides since no greater imposed killing.” sentence could be for a second or third 638, 647, App. 800. We agree Lindsay and hold that where victims are separate by harmed separate separately, criminal acts directed at the victims 8—4(a). consecutive sentences are prohibited not section 5— imposition of consecutive murder sentences was not error here. Defendant also in making contends that the trial court erred sentences for concealment of the homicidal deaths consecutive to those for the murders respective.deaths which caused the because the court did so stating that it was required to do so. Section 9—3.1 of the Criminal (Ill. Code of 1961 Stat. par. 3.1) provides Rev. ch. 9— (a) subsection for the offense of concealment of a homicidal death (b) subsection in part: states “* ® ° If a person convicted under this is convicted of section also this Section shall be manslaughter, penalty under murder or for or separately penalty and in addition to the murder imposed manslaughter.” is that the requirement issue raised whether heart imposed separately and addition to” that for the homicide
penalty “be (1) merged means that in the homicide offense offense not sentence, (2) requires separate or a sentence consecutive first give the words the imposed. homicide sentence must To “in makes addition to” redundant because construction use words are “separately” the word is sufficient to indicate the convictions However, Unified Code of Corrections merged. section 5—8—4 Stat., 8—4) par. comprehensive Rev. ch. makes Supp., (Ill. 1005— In sentences. imposition of concurrent and consecutive provision for attempted escape or (g) escape subsection states that sentence (Ill. Rev. of Corrections defined section 3—6—4 of the Unified Code to” 6—4) “shall be served consecutive par. Stat. ch. 1003— We being incarcerated. conclude sentence for which the convict was other had the to mandate consecutive sentences for legislature wished offenses, “in provided. so We thus construe words would have *10 merely addition as intent the of emphasizing to” the offense concealing body separate underlying the be from the homicide. one, have
Although hold trial court to a close we required impose in in concluding error that was consecutive concealing. sentences for court imposed by trial
The of sentence length each consecutive as a is classified charges years. 10 The offense on the concealment was 38, 1977, a term 3.1(c)) ch. for which par. 3 Stat. felony Class Rev. (Ill. 9— Stat., Rev. ch. years (Ill. Supp., not imprisonment may of exceed in where par. 8—1(a)(6)), except aggravation factors allow for 1005 — Stat., years (Ill. an extended term sentence not to exceed 10 Rev. Supp., par. 8—2(a)(5)). ch. aggravating justifying The factors 1005 — 5—3.2(b) an disjunctively extended term sentence are listed in section 5— Stat., ch. Supp., of Unified Code of Corrections. Rev. (Ill. here, trial court relied par. 5—3.2(b).) extending In the term 1005 — present: factor is aggravating that an 5—3.2(b)(2) section which states 5— any felony and court “When is convicted brutal or accompanied by exceptionally that the offense was finds Stat., 1978 cruelty.” Ill. Rev. indicative of wanton heinous behavior 5—3.2(b). Supp., par. ch. 1005 — law, that, one stated, as a matter of defendant contends Simply agree that the We not corpse. cannot been cruel to do be found have qualify in a manner to not be done corpse concealment of could cruelty'.” brutal or heinous behavior indicative of wanton “exceptionally in which by the manner cruelty imposed upon The the bereaved could instance, if, corpse was handled. This would occur corpse However, Some this was not done here. intentionally dismembered. from the bodies no doubt resulted decomposition dismemberment and river, in is inherent being decomposition in the but weighted their down corpses, inherently reprehensible which is an most concealment regard in to extended interpret legislative cruel act. We do not scheme under would be available term sentences to intend that an extended term brutality or heinous behavior 5—3.2(b)(2) degree section unless 5— such a support in this case does not “exceptional.” determination here. concealing sentences for imposition
We hold the of enhanced bodies to been error. We need not discuss defendant’s further give reasons for its contention court did sufficient imposition of those sentences. stated,
For the reasons affirm all and all appealed we convictions except sentences those for concealment of a homicide. Those two years’ sentences are reduced to terms 5 with each to imprisonment each consecutively be served as heretofore ordered. The case is remanded to the circuit court of County Menard for issuance of amended mittimus. part; reduced;
Affirmed in certain sentences cause remanded. MILLS, J.,P. concurs. TRAPP,
Mr. concurring part dissenting part: JUSTICE I portion opinion dissent from that which would reduce the (Ill. Stat., extended terms Supp., par. Rev. ch. 1005—5— (Ill. 3.2(b)(2)) upon the convictions of concealment of homicidal deaths 3.1(a)). Stat. ch. par. Rev. 9— The imposition of the extended terms is “[b]y excep- authorized tionally brutal or heinous behavior indicative cruelty.” key of wanton adjectives are stated disjunctive and the alternative.
This court has imposition affirmedthe of an extended term *11 v. (1979), 67 Ill. App. 3d and Jones Warfel App. 391N.E.2d 767. Each case was concerned the mistreatment of victims were written opinions who survived in the context pain brutally imposed living persons. and fear There seriously disjunctive no occasion to alternative found consider the word “heinous.”
In Webster’s Dictionary, Unabridged Third New International evil”; “hatefully shockingly word “heinous” is defined as or “grossly “enormously bad” flagrantly meaning or criminal.” Its so stated would not require pain suffering living seem to of a individual.
The majority opinion suggests that dismemberment bodies might brutal,” “exceptionally considered but that the acts here should not be “exceptional.” considered This record suggest does not disposal of the bodies was a temporary escape. measure to aid It is reasonable to infer that if hoped, expect, the defendant he did not that the two bodies ultimately would be lost forever. The bodies were mutilated just acid, fire, as effectively as if used or a hacksaw. Unless accept one is to reputed gangsters, methods the conduct . » «1 heinous. I would affirm imposed by the sentence the trial court. ILLINOIS, Plaintiff-Appellee, PEOPLE OF THE STATE OF THE Connor, CONNOR, Defendant-Appellant. ROBERT David a/k/a (2nd Division) First District No. 79-303 Opinion Rehearing April filed March denied 1980. 1980 .