People v. Lenius
Annotate this Case
FIRST DIVISION
NOVEMBER 24, 1997
No. 1-96-1682
THE PEOPLE OF THE STATE OF ILLINOIS, ) APPEAL FROM THE
) CIRCUIT COURT OF
Plaintiff-Appellee ) COOK COUNTY.
)
v. )
)
WILLIAM LENIUS, ) HONORABLE,
) JOSEPH ROMANO,
Defendant-Appellant. ) JUDGE PRESIDING.
PRESIDING JUSTICE CAMPBELL delivered the opinion of the court:
Following a jury trial, defendant, William Lenius, was convicted of
first degree murder, attempted first degree murder, aggravated battery,
possession of an explosive or incendiary device, and aggravated arson and
sentenced to concurrent terms of natural life imprisonment for first degree
murder and 30 years for attempted murder, as well as concurrent terms of seven
years' imprisonment for aggravated battery and five years for possession of an
explosive device. On appeal, defendant cites multiple errors at the pretrial,
trial and sentencing phases of his trial. We affirm defendant's conviction.
BACKGROUND
The record reveals the following relevant facts. On August 31, 1993,
Ellen Marshall lived with her parents in a townhome located at 8044-A Lyons,
Niles, Cook County, Illinois. At about 12:30 p.m., Ellen went out to her car,
parked in a lot just north of the townhome, and noticed a red tool box with a
key in the lock on the ground behind the left front tire, partly under her
car. Ellen moved the tool box out from behind the tire, then drove away.
Debra Conrad and her family lived next door to the Marshalls, at 8044-B
Lyons. Debra was employed as a school bus driver for handicapped students.
At about 2:30 p.m., on August 31, 1993, Debra left home to pick up the
students. As she neared her van, parked in the vicinity of the space vacated
by Ellen's car, Debra noticed a tool box on the ground. Ellen returned to the
parking lot and told Debra that she had noticed the tool box earlier and that
she had pushed it away from her car. Ellen then went into her home.
Debra approached the tool box, and seeing the key in the lock, tried to
turn it. She was not able to turn the key. Debra then left to pick up the
students.
Upon her return, between 3 and 3:30 p.m., Debra saw that the tool box
was still in the parking lot. Debra picked up the tool box and brought it
into her home in order to determine its owner.
Debra's husband, Wayne Conrad, was home sitting on the sofa in the
living room. Debra handed the tool box to Wayne. She said that she thought
it might belong to a young man who had worked on his car in the parking lot.
Debra stated, "Maybe you can open it up and see if the name is in there."
Wayne set the box in his lap. Debra turned to walk from the room to the
kitchen, and Wayne said, "I can't get the lock." Debra turned back toward him
and replied, "Then let's just forget about it." As she started to turn back
toward the kitchen, Wayne said, "I think I got it." Debra turned to face
Wayne, and at that moment the box exploded, killing Wayne and the family dog
and seriously injuring Debra.
PRETRIAL MOTIONS
Prior to trial, a combined hearing commenced on defendant's motions to
quash arrest and suppress evidence and to suppress statements.
A. Motion to Suppress Statements
Niles police detective sergeant Dennis McEnerney testified that on
August 31, 1993, at 11:10 p.m., he had a conversation with defendant in the
tactical office of the Niles police department. Also present were Federal
Bureau of Alcohol Tobacco and Firearms (ATF) Special Agent Cynthia Beebe and
Cook County sheriff's police department officer Rewers.
McEnerney read defendant his Miranda rights. Defendant stated that he
did not understand his right to an attorney. McEnerney explained that if at
any time defendant would like an attorney, then the police would stop asking
questions and defendant would be allowed to consult with an attorney.
Defendant signed a form waiving his rights.
At 2 a.m., McEnerney left defendant alone with Agent Beebe. In between
2 and 3:30 a.m., McEnerney ducked his head into the room two or three times.
Agent Beebe never left the office between 11:10 p.m. and 3:30 a.m.
At 3:30 a.m., McEnerney reentered the office and Agent Beebe exited.
McEnerney had a conversation with defendant for about half an hour. At 4
a.m., McEnerney left Agent Beebe and defendant in the office, returning again
at 4:05 a.m. with Assistant State's Attorney (ASA) Kinnerk, to initiate
another conversation with defendant. ASA Kinnerk advised defendant of his
Miranda rights, and defendant signed a second waiver of rights form. The
officers and the ASA then had a second conversation with defendant until 5
a.m., at which time McEnerney and ASA Kinnerk left defendant alone with Agent
Beebe.
At no time did defendant request an attorney, nor was defendant promised
leniency in exchange for a statement. No officer threatened defendant with
either the death penalty, incarceration in the Cook County jail, or both.
Defendant was provided with food and drink and was allowed to use the bathroom
facilities.
Agent Beebe was alone with defendant from 5 a.m. until 7:40 a.m., on
September 1, 1993, at which time defendant was placed in the lockup. Sometime
in the late morning or early afternoon, after defendant gave a court-reported
statement, an attorney arrived at the police station to see defendant.
ATF Special Agent Cynthia Beebe testified that between 11:10 p.m. and
approximately 2 a.m., she took handwritten notes of her interview with
defendant. Starting around 2 a.m., defendant became "fairly emotional," red-
faced, and leaned forward as though he might say something. Agent Beebe
advised defendant that if he wanted to, he could speak to either her or
Sergeant McEnerney alone. At approximately 2:30 a.m., defendant asked Agent
Beebe if he could talk to her alone. McEnerney agreed to leave the room.
After McEnerney left, Agent Beebe ceased taking notes but continued her
conversation with defendant. At about 3:10 a.m., Agent Beebe started writing
notes again, after defendant agreed that she could do so. At one point, Agent
Beebe left the room for three to five minutes to speak with McEnerney. After
she returned, she continued taking notes of her conversation with defendant.
At approximately 3:30 a.m., defendant allowed McEnerney to return to the
room. Agent Beebe made a written indication of the time of the sergeant's
return, and shortly thereafter, she concluded writing five pages of notes.
Agent Beebe then gave the notes to defendant to read and sign and then to
McEnerney to read and initial. At about 9:30 a.m., defendant gave a statement
to Agent Beebe, ASA Kinnerk and Niles police officer O'Sullivan in the
presence of a court reporter.
Several weeks after the interviews, Agent Beebe arranged to have her
handwritten notes typed for ATF reporting purposes. Agent Beebe photocopied
the signatures on the original handwritten notes, cut the signatures out of
the photocopies, and taped the signatures to the typewritten pages. Agent
Beebe stated that the content of the typed notes is identical to the content
of the handwritten notes.
Agent Beebe stated that during the initial conversation with defendant,
McEnerney told defendant that a woman had been killed. Based on the serg-
eant's statement, Agent Beebe was not clear whether the sergeant meant Debra
Conrad or Ellen Marshall. Agent Beebe admitted that, at one point, McEnerney
said that Ellen Marshall was dead, when Agent Beebe knew that Ellen Marshall
was not dead. Agent Beebe was confused by the sergeant's statement, and
although she did not interrupt him, she made a note of it. Agent Beebe also
wrote that when Sergeant McEnerney went to defendant's apartment, he told
defendant that Ellen Marshall was dead. Agent Beebe agreed that it was not
true that Ellen Marshall was dead.
Niles police officer Joseph O'Sullivan testified that he was present at
the time defendant gave his court-reported statement. At the conclusion of the
statement, ASA Kinnerk asked defendant to read and sign the statement.
However, when defendant reached page 3 of the statement, defendant looked up,
said he did not want to sign any more pages, and requested an attorney.
Defendant was immediately removed to the lockup. Defendant never reviewed the
entire statement.
At 10:05 a.m., Officer O'Sullivan received a telephone call from a
person identifying himself as Bob Griffith, an attorney for defendant.
Griffith told Officer O'Sullivan that he had been contacted by defendant's
employer. Officer O'Sullivan advised ASA Kinnerk of Griffith's telephone
call.
At 10:35 a.m., Officer O'Sullivan received a second telephone call from
Griffith. Griffith told Officer O'Sullivan that he did not want anyone
talking to his "client." Officer O'Sullivan did not remember whether he told
ASA Kinnerk about Griffith's second call. At 12:30 p.m., Griffith arrived at
the police station and was brought to meet defendant in the lockup.
Defendant testified that on August 31, 1993, at approximately 11 p.m.,
he was in custody at the Niles police station. McEnerney told defendant that
his fingerprints had been found "all over" the device that had exploded.
Defendant replied that that was not possible, and the sergeant stated that the
fingerprints matched those in defendant's military records.
Defendant told the authorities that he did not know anything about the
crime for which he was arrested, at which time Officer Rewers said, "Fuck him,
if he is going to be an asshole, send him down there and they will take care
of him." Rewers then left the interview room. McEnerney and Beebe told
defendant that if he did not "go along," with what they wanted, they would
send him down to Cook County jail and have "certain gangs number me up," and
if he "lived through it," it would "be days before anybody heard from [him]."
Defendant stated that he asked to see an attorney after McEnerney read
him his rights. McEnerney asked defendant if he could afford an attorney.
Agent Beebe told defendant that he would probably get the death penalty if he
did not go along with what they said because she was a federal agent and had
control over the courts. Agent Beebe promised that if defendant cooperated
with the authorities, they would talk to doctors and the judge, and make sure
nothing would happen to him.
When defendant first entered the interview room, they told him that they
were investigating the death of Ellen Marshall. Defendant first learned that
was not correct early the next morning. At that time, Agent Beebe said, "I
have something to tell you may make you mad, but may make you kind of happy."
Then she said that Marshall was not dead. Agent Beebe did not tell him who
was, in fact, deceased.
Defendant stated that during the course of the night, and into the early
morning hours, he requested an attorney close to a dozen times. At about 2:30
a.m., defendant told the authorities that he wanted to lie down and try to
sleep because he was tired. Defendant stated that he was not allowed to
sleep.
After the sergeant left, defendant and Agent Beebe had a conversation.
Then, Agent Beebe asked defendant to sign a sheet of paper in order to
"verify" that she had talked to him. Defendant signed the paper, but he did
not read any notes prior to signing anything.
Later, while giving his court-reported statement to the ASA, defendant
stopped the proceeding in order to stall for time to acquire representation.
Defendant had agreed to give the statement only because he previously had been
threatened and denied the right to talk to an attorney. After defendant gave
the court-reported statement, he was brought out of the lockup in order to
review the typed statement. They handed him one page at a time, he signed
only the first two pages, then refused to sign the rest of the statement.
B. Motion to Suppress Evidence
Defendant testified that on August 31, 1993, at approximately 9 p.m., he
was in his apartment located at 3321 North Kenneth, Chicago, when the doorbell
rang. Defendant descended the rear stairs to answer the door and encountered
"at least 10" police officers. Sergeant McEnerney asked defendant if he was
Bill Lenius, then told him that they had a search warrant to search his
apartment. The sergeant pushed defendant aside, pushed the door open and a
few of the officers went upstairs into defendant's apartment. McEnerney did
not show defendant an arrest warrant.
The officers entered defendant's apartment ahead of him and without his
permission. Two officers remained in the living room, two went into the
kitchen, and three went into the bedroom. Defendant asked what was going on,
and McEnerney replied that they were "looking for something." McEnerney
refused to show defendant a warrant. McEnerney asked defendant to sign a
"verification that they were in fact serving said search warrant." Defendant
signed the document, although he could not read it because it was covered by
another piece of paper.
Defendant stated that the officers recovered and removed various items
from his apartment, but he was not given an inventory of the items removed.
McEnerney asked whether his truck was parked in front of the building.
Defendant did not give police permission to search his truck. When the
sergeant asked defendant if he knew anyone in Niles, defendant mentioned his
ex-girlfriend, Ellen Marshall. McEnerney replied that Ellen was dead.
Defendant then reached for the telephone to call Ellen's house to find
out "what was going on." McEnerney grabbed defendant's arm and pulled him
away from the telephone. The sergeant then ordered defendant to accompany the
officers to the Niles police station for the investigation of the death of
Ellen Marshall. Defendant said he wanted to straighten up his apartment first
and stated that he would go to the police station later with a friend. The
sergeant refused and told defendant that he had to accompany the officers.
Defendant stated that the officers searched his person without advising him of
his Miranda rights.
Sergeant McEnerney testified that he learned of the explosion on
August 31, 1993, from Ellen Marshall. Ellen also informed officers that, in
July 1993, she had received a package, wrapped in brown paper, placed between
the screen door and the front door of her parents' home. The return address
on the package was "PET Inc," and bore a Chicago address and postmark. Ellen
found no listing for such a company in the Chicago telephone directory. Ellen
took the package up to her room and unwrapped it and found that it contained a
portable stereo-radio. Ellen put the stereo-radio in her closet.
At about 7 p.m., the Cook County bomb squad performed an X ray on the
stereo-radio and found that it contained a metal pipe bomb, comprised of a
powder ignition source and a motorcycle battery. The components of the bomb
included PVC pipe, time caps and nails, bolts through the end caps, and
explosive powder. The bomb was powered by an electrical cord. The bomb squad
found that the end caps were made from the caps of an Edge shaving cream can.
The bomb squad performed a procedure to disarm the bomb and render it safe.
Ellen and her mother, Sybil, told the sergeant that they thought
defendant may have directed the bombs at her because Ellen had ended her
relationship with defendant. Ellen stated that shortly after she broke up
with defendant, she discovered sugar in the gas tank of her vehicle. Ellen
confronted defendant, who replied that he would not do anything to her car; he
would harm her instead. Ellen also informed the officers that defendant
tinkered with motorcycles, that he was in the United States Navy torpedo
school, and that he attended DeVry Institute of Technology for electronics.
Ellen told the officers defendant's address.
Eight police officers, including four Niles officers, proceeded to
defendant's residence, in search of the components of a pipe bomb. Some of
the officers approached the rear of defendant's residence and rang the
doorbell, while others waited at the side of the building. Defendant answered
the door, and Sergeant McEnerney identified himself and advised defendant of
the incident in Niles. Defendant agreed to speak to the officers and allowed
the officers to come in, leading the officers up the stairs.
Defendant entered his apartment first, followed by Sergeant McEnerney
and Niles police detective Kent Sall, and the other officers. McEnerney noted
that the small room was set up with electronic equipment and musical instru-
ments. Defendant told the police that they could look around. The sergeant
told defendant that he had to sign a consent to search form. The sergeant did
not tell defendant that they had a search warrant to search his apartment.
Detective Sall filled out a consent to search form in the presence of
the sergeant and defendant and read the form to defendant. Detective Sall
then handed the form to defendant, attached to a folder by a clip. The form
was not covered at the time the detective handed it to defendant. Defendant
signed the form, and the officers signed the form as witnesses.
The officers found PVC pipe, duct tape and a volt meter in the bedroom.
McEnerney observed a can of Edge shaving cream missing its cap in defendant's
bathroom. The can color matched the color of the cap that had been found in
the stereo-radio bomb.
The officers searched defendant's apartment for approximately an hour
and a half, recovering several bags of items from the apartment. The officers
then asked defendant if he would accompany them back to the Niles police
station. Defendant agreed, after first feeding his cats.
Once outside, defendant gave the officers permission to search his
vehicle and handed the officers the keys. McEnerney asked defendant if he
wanted to take his own car to the station or ride with the officers. Defen-
dant stated that he would go with the officers in their unmarked squad car.
At the police station, the officers showed the Cook County bomb squad
the items they retrieved from defendant's apartment. The items recovered by
the police were consistent with the contents of the stereo bomb.
Police secured a search warrant for defendant's residence at 10:30 a.m.
on September 1, 1993. Subsequently, police performed a second search of
defendant's apartment and recovered additional items.
Sergeant McEnerney denied telling defendant that Ellen Marshall had been
killed. He also denied telling Agent Beebe that he had told defendant that
Ellen Marshall had been killed. The sergeant stated that he told defendant
that there was an explosion near Ellen Marshall's home and that one person had
been killed and another person had been injured.
Niles police detective Kenneth R. Sall testified that he provided the
consent to search form, a two-sided card, which he read to defendant.
Defendant signed the card. Prior to leaving his apartment, defendant showed
the officers where he kept his cat food, and Detective Sall fed defendant's
cats.
At the conclusion of the hearing on both motions, the trial court found
that the police went to defendant's residence to talk to defendant and to
search his apartment and that, if defendant had not given consent to search,
the officers would have put a guard on the building and obtained a search
warrant. The trial court did not believe that defendant "kept signing things
just because the police officers said sign" or that defendant repeatedly
requested an attorney. The trial court found that attorney Griffith never
called the police station until defendant had given the majority of his
statements, including the court-reported statement, and that defendant never
knew that his employer had provided him an attorney. Based on all of the
evidence at the hearing, the trial court denied both defendant's motion to
suppress statements and motion to quash arrest and suppress physical evidence.
TRIAL
Doctor Jaime Collings testified that he treated Debra at Lutheran
General Hospital for second degree burns to her face and arms, a large
evulsion of her right thigh and an open injury below her left knee where the
bone was exposed. Debra suffered lesser shrapnel injuries to the side of her
body and shoulder. Debra was in critical condition and remained in the
intensive care unit of the hospital until October 1, 1993.
The parties stipulated to the testimony of the Cook County medical
examiner, who determined that Wayne's death was caused by a bomb blast. The
medical examiner recovered metal projectiles from Wayne's body, including
threaded pipe fragments and wire with clear plastic insulation. Similar
fragments were recovered from the body of the Conrad's dog.
Niles police officer John Huinker testified that he questioned Ellen
Marshall about the tool box at approximately 4 p.m. on the day of the explo-
sion. Ellen told him that earlier that year, someone had put sugar in her gas
tank. At about 5 p.m., Officer Huinker had a second conversation with Ellen,
along with her mother, Sybil, and Officer Sall. Sybil stated that it was
"probably Bill," or defendant, who delivered the stereo-radio box containing
the bomb to the Marshall home. Ellen stated, "Mom, don't bring Bill into
this, he wouldn't do something like that."
Agent Beebe testified that she interviewed Ellen at approximately 5:30
p.m. After a few minutes, Agent Beebe accompanied Ellen to her car to talk.
While they were talking, an officer approached the car and told Agent Beebe
that a package in Ellen's home had been identified as a bomb, and they needed
to evacuate the area. Agent Beebe told Ellen that the stereo-radio package in
her room contained a bomb. Ellen replied that if anyone would have done this
to her, "it would have been Bill."
Later, when Agent Beebe interviewed defendant alone, he stated that he
worked for an auto repair shop and a television repair shop. Defendant did
not recall where he had gotten the stereo or when he had delivered the
package. Defendant told Agent Beebe that he had the red tool box in his
apartment "for a couple or years." Defendant then explained how he construct-
ed the bomb in the tool box, then took the box up to Ellen's car that morning.
He stated that he thought the tool box would just smoke and "flare up," and
that he intended only to scare Ellen. Defendant told Agent Beebe that there
were no additional bombs. At about 3:30 a.m., defendant repeated that he had
built the bomb in the tool box.
Ellen Marshall testified that she met defendant at a party in August
1992, and they started dating. Ellen saw defendant a "few times a week," but
he wanted her to spend more time with him. Around Christmas 1992, Ellen
became pregnant by defendant. Ellen informed defendant of her intention to
get an abortion, and defendant agreed. She terminated the pregnancy in
January 1993.
Afterward, Ellen saw defendant less. In March 1993, they traveled
together to Washington, D.C. During this trip, Ellen told defendant that the
relationship was not working out and that she wanted to "remain friends."
Defendant was unhappy and told Ellen that he loved her and still wanted to be
with her. After their return, Ellen told defendant that she was interested in
dating someone else.
In May 1993, Ellen's mechanic discovered sugar in the gas tank of her
car and suggested that it was some form of "retaliation." Later that month,
Ellen accompanied defendant to his sister's wedding, but she left shortly
after the start of the reception and prior to the dinner.
Ellen saw defendant the last weekend of June 1993, when they attended a
parade, then went to a movie. After the movie, Ellen again told defendant
that "it wasn't working out." Defendant told Ellen that he felt he was not
"good enough" for her and that he loved her, but he felt she had "betrayed"
him.
On July 25, 1993, Ellen's grandmother died. Defendant sent Ellen a
sympathy card, and Ellen called defendant to thank him. That same week, the
package containing the stereo-radio arrived at her home.
After the explosion on August 31, 1993, Ellen ran outside and across the
courtyard to a neighbor's house. From there, she saw Debra Conrad in her
doorway, injured, and heard her say, "Ellen, it was the tool box."
Officer Karl Humbert of the Cook County sheriff's police explosives and
hazardous devices section (bomb squad) investigated the scene of the explosion
and found that the bomb had blown a hole through the Conrads' floor to the
basement. During the investigation, the bomb squad officers learned of the
stereo-radio package. X rays of the box containing the stereo revealed
objects not ordinarily found in a radio, including a cylindrical object
containing three-quarter-inch wire nails. The nails appeared to be suspended
in space, indicating that they were held in place by an explosive material.
The bomb squad disarmed the bomb and found that the radio contained a
length of PVC pipe filled with Hercules Red Dot smokeless powder and nails.
They also observed the tan plastic cap from Edge shaving cream. The ignition
device was an Estes brand model rocket ignitor. Officer Humbert characterized
this device as a "booby trap," designed to explode when the radio was either
plugged in or turned on.
After disarming the bomb, the bomb squad officers gathered evidence in
the Conrads' home. They determined that the bomb that killed Wayne Conrad was
a galvanized steel pipe bomb, powered by a six-volt wet cell battery. The
bomb squad also recovered some unburned fragments of green dot smokeless
powder and fragments of pipe, the red tool box, and electrical components.
They determined that the tool box bomb had been ignited by an Estes brand
model rocket ignitor.
Officer Humbert stated that the smokeless powder used in the two bombs
is easily obtainable at sporting goods stores and can be purchased with a
firearm owner identification card. Officer Humbert stated that the two
devices were very similar.
Sergeant McEnerney testified to the same substantial facts as in the
pretrial hearing. In addition, Sergeant McEnerney testified that, at 3:30
a.m., defendant admitted that he had made the device that exploded in the
Conrad townhouse. Defendant stated that he got the galvanized pipe out of the
garage, the powder from a friend who had since died, and the tool box from his
own home.
ASA Kinnerk testified that defendant described how he had constructed
the bomb. Defendant told ASA Kinnerk that at dawn on August 31, 1993, he went
to Ellen's parking lot and placed the tool box under Ellen's car. At the end
of this conversation, defendant agreed to give his statement again with a
court reporter present. The statement was transcribed verbatim by a court
reporter. Defendant read all 22 pages of the statement but signed only the
first two pages. As defendant prepared to sign the third page, he stopped and
requested an attorney.
ATF forensic chemist Gregory Czarnopys testified that he examined the
remnants and fragments of both the disarmed radio bomb, and the tool box bomb,
as well as the items recovered from defendant's apartment and truck. Czar-
nopys confirmed the description of the bomb materials as described above. He
stated that the nails had no other purpose but to "produce harm." All of the
vents in the radio had been sealed with black three-quarter-inch duct tape, so
that it was impossible to see into the radio. The radio bomb was designed to
explode when plugged into a wall socket; the tool box bomb was activated by
its lock mechanism.
Evidence seized from defendant's apartment was visually similar to the
wire found in the tool box bomb. A microscopic examination of the wire
revealed that it was identical to the wire used in the tool box bomb. Samples
of tape were similarly consistent. The capless can of Edge shaving cream
matched both in color and in fit to the caps found in the radio bomb.
The parties stipulated that a fingerprint recovered from the brown paper
in which the radio bomb had been wrapped did not match that of defendant or
any other individual associated with the case.
Detective Sall testified that during the search of defendant's apart-
ment, he either stood in the living room or sat next to defendant on the
couch. Defendant was not instructed to remain on the couch. Defendant made
no telephone calls but would have been allowed to had he so desired. Officer
Sall fed defendant's cats because defendant was a possible suspect and the
officer preferred that defendant not reach into the cabinet.
Following entry of the guilty verdict, the jury recommended a sentence
of death. However, after a hearing, the trial court found factors mitigating
a death sentence and sentenced defendant to consecutive terms of imprisonment
of natural life for murder and 30 years for attempted murder, and concurrent
terms of seven years for aggravated battery and five years for possession of
an incendiary or explosive device. Defendant's timely appeal followed.
OPINION
I. PRETRIAL MOTIONS
Initially, defendant contends that the trial court erred in denying
defendant's motions to quash arrest and suppress evidence. Defendant argues
that the evidence seized from his apartment failed to connect him to the bomb
that exploded at the Conrad home killing Wayne Conrad but, rather, merely
connected him to the stereo-radio bomb. Thus, defendant argues that his
seizure was without probable cause and the items seized should have been
suppressed. Defendant further argues that no probable cause existed to
warrant his arrest.
On review, we will not disturb a trial court's determination on a
motion to suppress absent a determination that the trial court's finding was
manifestly erroneous. People v. Melock, 149 Ill. 2d 423, 599 N.E.2d 941,
(1992). Further, it is the function of the trial court to determine the
credibility of the witnesses and to resolve any conflict in their testimony.
People v. Redd, 135 Ill. 2d 252, 289, 553 N.E.2d 316 (1990).
Both the United States and Illinois Constitutions protect individuals
from unreasonable searches and seizures. U.S. Const., amend. IV; Ill. Const.
1970, art. I, 6. A seizure, for fourth amendment purposes, is synonymous
with an arrest. Absent probable cause or a warrant based thereon, an arrest
is violative of the fourth amendment protections. See Dunaway v. New York,
442 U.S. 200, 60 L. Ed. 2d 824, 99 S. Ct. 2248 (1979).
A person has been arrested when his freedom of movement has been
restrained by means of physical force or a show of authority. United States
v. Mendenhall, 446 U.S. 544, 553, 64 L. Ed. 2d 497, 508, 100 S. Ct. 1870, 1877
(1980). The relevant inquiry in determining whether a suspect has been
arrested is whether, under the circumstances, a reasonable person would
conclude that he was not free to leave. People v. Eddmonds, 101 Ill. 2d 44,
61, 461 N.E.2d 347 (1984); Mendenhall, 446 U.S. at 554, 64 L. Ed. 2d at 509,
100 S. Ct. at 1877. Additional factors considered in a determination of
whether an arrest has occurred include the intent of the officer and the
understanding of the suspect (People v. Wipfler, 68 Ill. 2d 158, 165, 368 N.E.2d 870 (1977)) and whether the suspect was told that he was free to leave
or that he was under arrest. People v. Holveck, 141 Ill. 2d 84, 95, 565 N.E.2d 919 (1990).
Defendant argues that he was arrested when police officers requested
that he remain seated on his couch while the officers searched his apartment.
He further argues that he was arrested when police "required" him to ride to
the police station with three police officers.
However, the record shows that defendant was not arrested at his
apartment. The testimony at the hearing revealed that defendant was "just
sitting on the couch" with Detective Sall. The record shows that defendant
read and signed a form authorizing the authorities to search his apartment and
that he gave the keys to his truck to officers to perform a search thereof.
The record further shows that defendant agreed to accompany the officers to
the Niles police station voluntarily and was offered the option of taking his
own vehicle. Thus, defendant has not shown that he was in an "inherently
coercive setting, which would affect substantially his will to resist or
compel him to speak." See, e.g., People v. Fischetti, 47 Ill. 2d 92, 98, 264 N.E.2d 191 (1970), (citing People v. Cerrato, 24 N.Y.2d 1, 246 N.E.2d 501, 298 N.Y.S.2d 688 (1969).
Although defendant testified that he did not see the consent form he
signed, the trial court found that his testimony was not credible, and we
cannot find that this determination was contrary to the manifest weight of the
evidence.
Defendant further argues that the trial court's decision was improperly
based on Sergeant McEnerney's "false or misleading testimony." Defendant
cites as false the sergeant's testimony that he spoke to Ellen Marshall, and
that Ellen implicated defendant, when in fact, Ellen testified that her mother
Sybil talked to police and implicated defendant. In addition, defendant cites
as false Sergeant McEnerney's testimony that he did not tell defendant that
Ellen was dead, when Agent Beebe testified that Sergeant McEnerney told her
that he had in fact told defendant that Ellen was dead.
The trial court specifically addressed the inconsistencies in some of
the police officer's testimony, concluding that they were trivial:
"I would also agree * * * that there are some incon-
sistencies and contradictions among the police offi-
cers in this case, but I believe that is true in any
extended motion or trial where you have various wit-
nesses testifying as it is a human factor, and I don't
place that much importance as to who fed the cats et
cetera, et cetera."
In addition, defendant misrepresents Ellen's trial testimony. The
record shows that while Ellen made the initial comment to her mother, she
later admitted to Agent Beebe that if anyone would have done this to her, "it
would have been Bill."
In light of the record, defendant has failed to show that the trial
court's ruling was manifestly erroneous.
Next, defendant contends that the trial court erred in denying his
motion to suppress statements. Defendant argues that his statement was not
given voluntarily but was, in fact, the product of a "coercive atmosphere."
Defendant argues that he was coerced into a confession by Sergeant McEnerney,
who informed him that Ellen Marshall was dead and that his fingerprints had
been located on the bomb.
For a confession to be admissible in evidence, the trial court must
determine that it was made voluntarily without compulsion or inducement.
People v. Case, 218 Ill. App. 3d 146, 577 N.E.2d 1291 (1991). The standard of
voluntariness requires a knowing, intelligent and voluntary decision to
confess. People v. Kincaid, 87 Ill. 2d 107, 429 N.E.2d 508 (1981); see also
People v. Bernasco, 138 Ill. 2d 349, 562 N.E.2d 958 (1990). A confession is
voluntary if, based on the totality of the circumstances, the accused's will
was not overborne at the time he confessed; the confession must be the
product of a rational intellect and a free will. Kincaid, 87 Ill. 2d at 117,
429 N.E.2d at 511; People v. Jones, 196 Ill. App. 3d 937, 957, 554 N.E.2d 516, 528 (1990). It is well settled that a reviewing court will not disturb a
circuit court's finding on a motion to suppress unless it is manifestly
erroneous. People v. Gacho, 122 Ill. 2d 221, 234, 522 N.E.2d 1146 (1988),
cert. denied, 488 U.S. 910, 102 L. Ed. 2d 252, 109 S. Ct. 264 (1988); People
v. Neal, 109 Ill. 2d 216, 218, 486 N.E.2d 898 (1985).
In support, defendant cites Lynumn v. Illinois, 372 U.S. 528, 9 L. Ed.
2d. 922, 83 S. Ct. 917 (1963). There, upon the defendant's arrest for
unlawful sale and possession of marijuana, police officers falsely told her
that "if we took her into the station and charged her with the offense, that
the ADC [Aid to Dependent Children] would probably be cut off and also that
she would probably lose custody of her children." Lynumn, 372 U.S. at 533, 9 L. Ed. 2d at 926, 83 S. Ct. at 920. Under these circumstances, the Supreme
Court found that the defendant's confession was coerced and reversed the
defendant's conviction. Lynumn, 372 U.S. at 534, 9 L. Ed. 2d at 926, 83 S. Ct. at 920.
Defendant further relies on People v. Lee, 128 Ill. App. 3d 774, 471 N.E.2d 567 (1984). There, after the defendant's arrest for rape, the defen-
dant denied that he had been in the complainant's apartment on the night of
the offense. The assistant State's Attorney (ASA) accurately told the
defendant that he had been identified as the complainant's assailant, but
intentionally misrepresented to the defendant that his fingerprints had been
found in the complainant's apartment. The defendant then admitted that he had
in fact been present in complainant's apartment on the night of the offense.
At trial, the complainant testified that the defendant was her coworker and a
social acquaintance who had visited her home on a prior occasion. This court
reversed the defendant's conviction and remanded for a new trial, finding that
the misrepresentation by the ASA regarding the fingerprints rendered defen-
dant's subsequent confession involuntary and therefore inadmissible. Lee, 128
Ill. App. 3d at 781.
Lynumn and Lee are distinguishable from the present case. Here, both
Sergeant McEnerney and Detective Sall testified that when they arrived at
defendant's apartment the sergeant informed defendant that one person was dead
and another injured. Although Agent Beebe testified that Sergeant McEnerney
later told her that he had told defendant that Ellen Marshall was dead, Agent
Beebe specifically informed defendant that Ellen Marshall was not dead, two
hours prior to the time defendant gave his statement of confession. Under
these circumstances, defendant has not shown that any misinformation about the
life of Ellen Marshall contributed to his statement of confession.
Regarding defendant's further allegation that Sergeant McEnerney falsely
represented that his fingerprints had been found "all over the bomb," there is
no reliable evidence in the record that the officer made such a misrepresenta-
tion. The trial court determined that defendant's testimony at the hearing
was not credible, and that determination is supported by the manifest weight
of the evidence. Thus, defendant has not shown any error that rises to the
level of those found in Lynumm and Lee.
Defendant further argues that he did not understand his constitutional
rights when they were read to him.
The record reflects that when Sergeant McEnerney initially read defen-
dant his Miranda rights, defendant said he had a question about his right to
stop the questioning in order to consult with a lawyer. Sergeant McEnerney
explained the right to defendant as follows:
"If I start talking at any time that you find that you
cannot answer a question or you would like an
attorney, we'll stop asking you questions and you can
consult with an attorney."
Defendant stated that he understood, then read and signed a separate acknowl-
edgment and waiver of his rights.
Defendant further argues that he had no prior experience with law
enforcement and had a limited education; police threatened him and told him he
would be injured while incarcerated; he was not allowed to sleep during the
evening hours of August 31, 1993, and the early morning hours of September 1,
1993; and police never left him alone at the police station for more than a
few minutes.
The trial court took into consideration that defendant had no prior
experience with law enforcement but found as follows:
"He is a mature adult. I listened careful [sic] to
his testimony and of course the testimony of all of
the witnesses, and I found the defendant to be very
articulate, forceful, mentally sharp, and strong
willed. And in addition to that, I found him to be
very, very, precise when he was on the stand wanting
to exact the diagram as far as his apartment, and
other things of that nature during his testimony."
The trial court found that defendant's testimony was not credible and that
defendant was not coerced into making his confession. We cannot conclude
based on this record that the determination of the trial court was against the
manifest weight of the evidence.
II. PROOF OF THE CRIME BEYOND A REASONABLE DOUBT
Next, defendant contends that the State failed to prove the corpus
delicti of the offenses of attempted first degree murder and possession of an
explosive or incendiary device guilty beyond a reasonable doubt. Defendant
argues that the State proved neither that he had the specific intent to kill
Ellen Marshall and that he took a substantial step towards that act, nor that
he had the intent to kill Wayne Conrad. Defendant further contends that the
State improperly introduced evidence of other crimes at trial, in order to
prove him guilty of the murder of Wayne Conrad.
Proof of corpus delicti requires both proof that a crime was committed
and that it was committed by the person charged. People v. Cloutier, 156 Ill. 2d 483, 503, 622 N.E.2d 774 (1993); People v. Lambert, 104 Ill. 2d 375, 378,
472 N.E.2d 427 (1984). In cases where a defendant's confession is part of the
proof of the corpus delicti, the prosecution must also adduce corroborating
evidence independent of a defendant's own statement. Lambert, 104 Ill. 2d at
378-79. Such evidence need not rise to the level of proof beyond a reasonable
doubt, but must only tend to confirm a defendant's confession. Cloutier, 156 Ill. 2d at 503. In this case, the corpus delicti of attempted first degree
murder requires proof that, with intent to kill, the defendant committed an
act that constituted a substantial step toward the commission of the murder.
720 ILCS 5/8-4 (West 1994); People v. Burrage, 269 Ill. App. 3d 67, 76, 645 N.E.2d 455 (1994).
Intent is a state of mind that can be shown by surrounding circumstanc-
es, including the character of the assault and the use of a deadly weapon, and
can be inferred when it has been shown that the defendant voluntarily and
willingly committed an act, the natural tendency of which was to destroy
another's life. People v. Coolidge, 26 Ill. 2d 533, 537, 187 N.E.2d 694
(1963); People v. Winters, 151 Ill. App. 3d 402, 405, 502 N.E.2d 841 (1986).
Under the doctrine of transferred intent, a defendant's intent to kill the
intended victim is transferred to the actual victim. Burrage, 269 Ill. App.
3d at 76.
Evidence of other offenses is admissible if relevant for any purpose
other than to show propensity to commit a crime. People v. Jones, 156 Ill. 2d 225, 239, 620 N.E.2d 325, 330 (1993); People v. Williams, 285 Ill. App. 3d
394, 673 N.E.2d 1169 (1996). Other crimes evidence may be relevant to prove
modus operandi, intent, identity, motive or absence of mistake. People v.
Robinson, 167 Ill. 2d 53, 62-63, 656 N.E.2d 1090 (1995). Furthermore,
whenever evidence of another crime is offered, there must be some similarity
between the other crime and the crime charged in order to ensure that it is
not being used to establish the defendant's criminal propensity. People v.
Johnson, 239 Ill. App. 3d 1064, 1074, 608 N.E.2d 36 (1992). The trial court's
decision to allow such evidence will not be reversed absent a clear abuse of
discretion. Robinson, 167 Ill. 2d at 63, 656 N.E.2d 1090.
In the present case, the record reveals evidence of modus operandi.
Along with other circumstantial evidence, the evidence links defendant to the
stereo bomb, and the stereo bomb itself provides overwhelming evidence that
defendant built and delivered the tool box bomb with the clear intent to kill
Ellen Marshall. The package was addressed to her, and it was filled with
nails suspended in explosive powder, which have no other purpose but to
increase the amount of harm caused by the explosion. The record further shows
that the tool box bomb was a "very similar" device, constructed of similar
materials. Various components and fragments of each device matched materials
discovered in defendant's apartment. The evidence therefore linked defendant
to both bombs and provided a modus operandi for the crimes. Defendant's
intent to kill Ellen transferred to Wayne Conrad when Wayne triggered the
explosive device in the tool box. Therefore, the record shows that the State
proved the corpus delicti beyond a reasonable doubt.
III. JUROR IMPARTIALITY
Next, defendant contends that the trial court erred in failing to
dismiss a juror who indicated during trial that he had failed to provide
attorneys with accurate information during the voir dire.
During the course of the trial, the trial court received a note from a
juror stating that his daughter was a classmate of Wayne Conrad's daughter at
the Nelson school at the time of the bombing and that the juror's daughter had
told him about what had happened to the Conrad family.
The trial court conducted a hearing to inquire into the extent of the
juror's knowledge. The juror stated that he had never met the Conrad family
and did not know the Conrads' daughter. He further stated that he had not
discussed this matter with any other juror and that he could be fair. The
trial court denied defense counsel's motion to strike the juror in favor of an
alternate.
The right to a jury trial guarantees to a criminal defendant a fair
trial by a panel of impartial jurors. People v. Cole, 54 Ill. 2d 401, 411,
298 N.E.2d 705 (1973). A person is not competent to sit as a juror if his
state of mind or mental attitude is such that, with him as a member of the
jury, the defendant will not receive a fair and impartial trial. Cole, 54 Ill. 2d at 413. The burden of showing that a venireperson possesses a
disqualifying state of mind is on the party making the challenge, and the
determination of whether the venireperson has the state of mind which will
enable him to give to an accused a fair and impartial trial rests in the sound
discretion of the trial judge. This determination is not to be set aside
unless it is against the manifest weight of the evidence. Cole, 54 Ill. 2d at
414-15.
In the present case, defendant failed to meet his burden of showing that
the juror was prejudiced against him and could not be fair. The record does
not reveal that the juror had any special friendship with the Conrad's
daughter. Therefore, defendant has failed to show that the trial court erred
in refusing to dismiss the juror for cause.
IV. TRIAL JUDGE AS ADVOCATE
Next, defendant contends that the trial court improperly acted as an
advocate on behalf of the State by highlighting certain evidence that was
prejudicial to defendant. Defendant argues that, on several occasions, the
trial court directed questions at witnesses that went beyond mere clarifica-
tion of earlier testimony and that, instead, elicited damaging and highly
prejudicial evidence against him.
Specifically, defendant objects to the following actions of the trial
court: (1) asking an explosives expert whether the bomb in this case was
equivalent to a hand grenade or was more powerful than a hand grenade; (2)
asking Agent Beebe to describe the contents of the notes she made after her
interview with defendant; and (3) instructing the jury as to the law at
various points during the trial, rather than at the end of the trial.
The State initially responds that defendant has waived this issue for
review for failing to object both at trial and in his posttrial motions.
People v. Enoch, 122 Ill. 2d 176, 522 N.E.2d 1124 (1988). In addition, the
State notes that defendant fails to describe precisely how he was prejudiced
by the trial court.
Nevertheless, a trial judge must take precautions not to assume the role
of advocate when asking questions in a jury trial. The trial judge must
question in a "fair and impartial manner, without showing prejudice or bias
against either party." People v. Gilbert, 12 Ill. 2d 410, 415, 147 N.E.2d 44,
47 (1957). The line of judicial propriety "is clearly crossed when the judge
departs from his function as a judge and assumes the role of prosecutor."
People v. McGrath, 80 Ill. App. 2d 229, 236, 224 N.E.2d 660 (1967). When that
happens, whether or not the defense objects, judicial influence fatally
infects the trial. People v. Santucci, 24 Ill. 2d 93, 99, 180 N.E.2d 491
(1962); People v. Rega, 271 Ill. App. 3d 17, 648 N.E.2d 130 (1995).
In the present case, the record does not show that the trial judge
improperly assumed the role of prosecutor. Regarding the explosive device,
the trial judge asked for a comparison and did not demonstrate any unfair
prejudice. The trial judge's request that Agent Beebe state the content of
the additions to her notes was prompted by questions asked by the parties
during trial wherein she stated that she made additional notes, but she did
not state what the notes contained. Defendant does not argue that the content
of these additional notes is incriminating.
V. CLOSING ARGUMENTS
Next, defendant contends that the State's closing arguments were
prejudicial and thereby denied him a fair trial. Defendant argues that
certain comments of the prosecutor inflamed the passions, prejudices and
sympathy of the jury and misstated the applicable law.
The State responds that defendant has waived most of this issue on
review, for failure to object to the specific comments at trial and to raise
his objections in his posttrial motion. People v. Enoch, 122 Ill. 2d 176, 522 N.E.2d 1124. The State notes that defendant failed to object to the remarks
defendant now complains of in all but two instances.
In general, courts allow a great deal of latitude to the prosecution
during closing and rebuttal arguments. People v. Williams, 147 Ill. 2d 173,
231, 588 N.E.2d 983 (1991); People v. Smith, 199 Ill. App. 3d 839, 854, 557 N.E.2d 596 (1990). When reviewing allegations of prosecutorial misconduct,
the complained-of remarks must be considered in the context of the entire
closing arguments of both the State and the defendant. People v. Cisewski, 118 Ill. 2d 163, 175-76, 514 N.E.2d 970 (1987). In closing argument, a prosecu-
tor may comment on the evidence and legitimate inferences arising therefrom,
and such comments do not exceed the bounds of proper argument. Williams, 147 Ill. 2d at 231.
During closing argument, the prosecutor discussed Agent Beebe's testi-
mony that she was "confused" when Sergeant McEnerney told her that he had
informed defendant that Ellen Marshall had died. The prosecutor further
commented that "McEnerney doesn't recall saying that." The prosecutor then
stated: "And there will be no instruction that says that it's not a legiti-
mate questioning technique." The trial court overruled defense counsel's
objection to this comment. This comment by the prosecutor did not indicate
that the conduct of the police constituted legitimate questioning techniques
and "that it is done the same way in other cases," as defendant contends.
The trial court also overruled defendant's objection to the following
comment:
"What the attorneys say is not evidence. And forgive
me if I misstate the evidence at all. For example, in
opening statement, we heard that Cindy Beebe told the
defendant that you say you made the bomb and you just
wanted to flash, and I'll save you. Did you hear any-
thing like that at trial? No. None whatsoever. That
doesn't exist."
Defendant fails to explain how this comment was improper.
The record does not show that defendant was denied a fair trial by
either of the comments which were preserved by objection at trial.
VI. SENTENCING
Next, defendant contends that the trial court erred in imposing a
sentence of natural life without parole for the first degree murder of Wayne
Conrad. Defendant argues that the trial court overlooked several statutory
factors in arriving at the life sentence and also erred by finding that the
murder of Wayne Conrad was brutal and heinous.
The sentencing decision of a trial court is entitled to great deference
and weight (People v. LaPointe, 88 Ill. 2d 482, 431 N.E.2d 344 (1981)), and
absent an abuse of discretion by the trial court, a sentence may not be
altered upon review. People v. Perruquet, 68 Ill. 2d 149, 368 N.E.2d 882
(1977). This court will not substitute its judgment for that of the trial
court merely because it would have balanced the appropriate factors different-
ly had it been charged with the task of sentencing, (People v. Cox, 82 Ill. 2d 268, 412 N.E.2d 541 (1980)), especially where the sentence imposed by the
trial court is within the statutory limitation. People v. Lambrechts, 69 Ill. 2d 544, 372 N.E.2d 641 (1977).
The record indicates that the trial court found defendant eligible for
the death penalty based on the statutory provision that:
"the murder was committed in a cold, calculated and
premeditated manner pursuant to a preconceived plan,
scheme or design to take a human life by unlawful
means, and the conduct of the defendant created a rea-
sonable expectation that the death of a human being
would result therefrom." 720 ILCS 5/9-1(b)(11) (West
1994).
Following a hearing in aggravation and mitigation, in which the trial court
listened to witnesses and read the presentence investigation report, the trial
court made the following finding:
"The defendant has caused numerous families much
sorrow and suffering including his own. The sending
of a bomb concealed in an innocent toolbox is just
outrageous. I believe that the manner in which he
killed the victim was brutal and heinous in this
particular case as well as premeditated. I do not
want to see this defendant ever leave the peniten-
tiary."
The trial court then sentenced defendant to a term of natural life for the
murder of Wayne Conrad.
Our supreme court has held that the statutory phrase "exceptionally
brutal or heinous behavior" must be given its ordinary meaning, and it has
defined "heinous" as being "hatefully or shockingly evil; grossly bad;
erroneously and flagrantly criminal." People v. Lucas, 132 Ill. 2d 399, 445-
46, 548 N.E.2d 1003 (1989). Under the circumstances of this case, the trial
court properly found the crime committed by defendant to be brutal and heinous
and sentenced defendant accordingly. We find no error.
Finally, defendant contends that he was denied his right of allocution
at sentencing, because the trial court asked him if he wished to make a
statement after it had already imposed sentence.
The failure of the trial court to ask a defendant if he wished to make a
statement is a technical error which does not require reversal. People v.
Munn, 216 Ill. App. 3d 1058, 1062, 576 N.E.2d 582 (1991). The record shows
that the trial court considered all the factors in aggravation and mitigation
in determining defendant's sentence. Defense counsel acknowledged that the
trial court followed proper sentencing procedure and concluded: "I don't have
any request at this time to allow him to make that statement." Therefore, no
error occurred in defendant's sentencing.
For all of the reasons stated above, we therefore affirm the judgment of
the trial court.
Affirmed.
O'BRIEN, J., and GALLAGHER, J., concur.
NOVEMBER 24, 1997
No. 1-96-1682
THE PEOPLE OF THE STATE OF ILLINOIS, ) APPEAL FROM THE
) CIRCUIT COURT OF
Plaintiff-Appellee ) COOK COUNTY.
)
v. )
)
WILLIAM LENIUS, ) HONORABLE,
) JOSEPH ROMANO,
Defendant-Appellant. ) JUDGE PRESIDING.
PRESIDING JUSTICE CAMPBELL delivered the opinion of the court:
Following a jury trial, defendant, William Lenius, was convicted of
first degree murder, attempted first degree murder, aggravated battery,
possession of an explosive or incendiary device, and aggravated arson and
sentenced to concurrent terms of natural life imprisonment for first degree
murder and 30 years for attempted murder, as well as concurrent terms of seven
years' imprisonment for aggravated battery and five years for possession of an
explosive device. On appeal, defendant cites multiple errors at the pretrial,
trial and sentencing phases of his trial. We affirm defendant's conviction.
BACKGROUND
The record reveals the following relevant facts. On August 31, 1993,
Ellen Marshall lived with her parents in a townhome located at 8044-A Lyons,
Niles, Cook County, Illinois. At about 12:30 p.m., Ellen went out to her car,
parked in a lot just north of the townhome, and noticed a red tool box with a
key in the lock on the ground behind the left front tire, partly under her
car. Ellen moved the tool box out from behind the tire, then drove away.
Debra Conrad and her family lived next door to the Marshalls, at 8044-B
Lyons. Debra was employed as a school bus driver for handicapped students.
At about 2:30 p.m., on August 31, 1993, Debra left home to pick up the
students. As she neared her van, parked in the vicinity of the space vacated
by Ellen's car, Debra noticed a tool box on the ground. Ellen returned to the
parking lot and told Debra that she had noticed the tool box earlier and that
she had pushed it away from her car. Ellen then went into her home.
Debra approached the tool box, and seeing the key in the lock, tried to
turn it. She was not able to turn the key. Debra then left to pick up the
students.
Upon her return, between 3 and 3:30 p.m., Debra saw that the tool box
was still in the parking lot. Debra picked up the tool box and brought it
into her home in order to determine its owner.
Debra's husband, Wayne Conrad, was home sitting on the sofa in the
living room. Debra handed the tool box to Wayne. She said that she thought
it might belong to a young man who had worked on his car in the parking lot.
Debra stated, "Maybe you can open it up and see if the name is in there."
Wayne set the box in his lap. Debra turned to walk from the room to the
kitchen, and Wayne said, "I can't get the lock." Debra turned back toward him
and replied, "Then let's just forget about it." As she started to turn back
toward the kitchen, Wayne said, "I think I got it." Debra turned to face
Wayne, and at that moment the box exploded, killing Wayne and the family dog
and seriously injuring Debra.
PRETRIAL MOTIONS
Prior to trial, a combined hearing commenced on defendant's motions to
quash arrest and suppress evidence and to suppress statements.
A. Motion to Suppress Statements
Niles police detective sergeant Dennis McEnerney testified that on
August 31, 1993, at 11:10 p.m., he had a conversation with defendant in the
tactical office of the Niles police department. Also present were Federal
Bureau of Alcohol Tobacco and Firearms (ATF) Special Agent Cynthia Beebe and
Cook County sheriff's police department officer Rewers.
McEnerney read defendant his Miranda rights. Defendant stated that he
did not understand his right to an attorney. McEnerney explained that if at
any time defendant would like an attorney, then the police would stop asking
questions and defendant would be allowed to consult with an attorney.
Defendant signed a form waiving his rights.
At 2 a.m., McEnerney left defendant alone with Agent Beebe. In between
2 and 3:30 a.m., McEnerney ducked his head into the room two or three times.
Agent Beebe never left the office between 11:10 p.m. and 3:30 a.m.
At 3:30 a.m., McEnerney reentered the office and Agent Beebe exited.
McEnerney had a conversation with defendant for about half an hour. At 4
a.m., McEnerney left Agent Beebe and defendant in the office, returning again
at 4:05 a.m. with Assistant State's Attorney (ASA) Kinnerk, to initiate
another conversation with defendant. ASA Kinnerk advised defendant of his
Miranda rights, and defendant signed a second waiver of rights form. The
officers and the ASA then had a second conversation with defendant until 5
a.m., at which time McEnerney and ASA Kinnerk left defendant alone with Agent
Beebe.
At no time did defendant request an attorney, nor was defendant promised
leniency in exchange for a statement. No officer threatened defendant with
either the death penalty, incarceration in the Cook County jail, or both.
Defendant was provided with food and drink and was allowed to use the bathroom
facilities.
Agent Beebe was alone with defendant from 5 a.m. until 7:40 a.m., on
September 1, 1993, at which time defendant was placed in the lockup. Sometime
in the late morning or early afternoon, after defendant gave a court-reported
statement, an attorney arrived at the police station to see defendant.
ATF Special Agent Cynthia Beebe testified that between 11:10 p.m. and
approximately 2 a.m., she took handwritten notes of her interview with
defendant. Starting around 2 a.m., defendant became "fairly emotional," red-
faced, and leaned forward as though he might say something. Agent Beebe
advised defendant that if he wanted to, he could speak to either her or
Sergeant McEnerney alone. At approximately 2:30 a.m., defendant asked Agent
Beebe if he could talk to her alone. McEnerney agreed to leave the room.
After McEnerney left, Agent Beebe ceased taking notes but continued her
conversation with defendant. At about 3:10 a.m., Agent Beebe started writing
notes again, after defendant agreed that she could do so. At one point, Agent
Beebe left the room for three to five minutes to speak with McEnerney. After
she returned, she continued taking notes of her conversation with defendant.
At approximately 3:30 a.m., defendant allowed McEnerney to return to the
room. Agent Beebe made a written indication of the time of the sergeant's
return, and shortly thereafter, she concluded writing five pages of notes.
Agent Beebe then gave the notes to defendant to read and sign and then to
McEnerney to read and initial. At about 9:30 a.m., defendant gave a statement
to Agent Beebe, ASA Kinnerk and Niles police officer O'Sullivan in the
presence of a court reporter.
Several weeks after the interviews, Agent Beebe arranged to have her
handwritten notes typed for ATF reporting purposes. Agent Beebe photocopied
the signatures on the original handwritten notes, cut the signatures out of
the photocopies, and taped the signatures to the typewritten pages. Agent
Beebe stated that the content of the typed notes is identical to the content
of the handwritten notes.
Agent Beebe stated that during the initial conversation with defendant,
McEnerney told defendant that a woman had been killed. Based on the serg-
eant's statement, Agent Beebe was not clear whether the sergeant meant Debra
Conrad or Ellen Marshall. Agent Beebe admitted that, at one point, McEnerney
said that Ellen Marshall was dead, when Agent Beebe knew that Ellen Marshall
was not dead. Agent Beebe was confused by the sergeant's statement, and
although she did not interrupt him, she made a note of it. Agent Beebe also
wrote that when Sergeant McEnerney went to defendant's apartment, he told
defendant that Ellen Marshall was dead. Agent Beebe agreed that it was not
true that Ellen Marshall was dead.
Niles police officer Joseph O'Sullivan testified that he was present at
the time defendant gave his court-reported statement. At the conclusion of the
statement, ASA Kinnerk asked defendant to read and sign the statement.
However, when defendant reached page 3 of the statement, defendant looked up,
said he did not want to sign any more pages, and requested an attorney.
Defendant was immediately removed to the lockup. Defendant never reviewed the
entire statement.
At 10:05 a.m., Officer O'Sullivan received a telephone call from a
person identifying himself as Bob Griffith, an attorney for defendant.
Griffith told Officer O'Sullivan that he had been contacted by defendant's
employer. Officer O'Sullivan advised ASA Kinnerk of Griffith's telephone
call.
At 10:35 a.m., Officer O'Sullivan received a second telephone call from
Griffith. Griffith told Officer O'Sullivan that he did not want anyone
talking to his "client." Officer O'Sullivan did not remember whether he told
ASA Kinnerk about Griffith's second call. At 12:30 p.m., Griffith arrived at
the police station and was brought to meet defendant in the lockup.
Defendant testified that on August 31, 1993, at approximately 11 p.m.,
he was in custody at the Niles police station. McEnerney told defendant that
his fingerprints had been found "all over" the device that had exploded.
Defendant replied that that was not possible, and the sergeant stated that the
fingerprints matched those in defendant's military records.
Defendant told the authorities that he did not know anything about the
crime for which he was arrested, at which time Officer Rewers said, "Fuck him,
if he is going to be an asshole, send him down there and they will take care
of him." Rewers then left the interview room. McEnerney and Beebe told
defendant that if he did not "go along," with what they wanted, they would
send him down to Cook County jail and have "certain gangs number me up," and
if he "lived through it," it would "be days before anybody heard from [him]."
Defendant stated that he asked to see an attorney after McEnerney read
him his rights. McEnerney asked defendant if he could afford an attorney.
Agent Beebe told defendant that he would probably get the death penalty if he
did not go along with what they said because she was a federal agent and had
control over the courts. Agent Beebe promised that if defendant cooperated
with the authorities, they would talk to doctors and the judge, and make sure
nothing would happen to him.
When defendant first entered the interview room, they told him that they
were investigating the death of Ellen Marshall. Defendant first learned that
was not correct early the next morning. At that time, Agent Beebe said, "I
have something to tell you may make you mad, but may make you kind of happy."
Then she said that Marshall was not dead. Agent Beebe did not tell him who
was, in fact, deceased.
Defendant stated that during the course of the night, and into the early
morning hours, he requested an attorney close to a dozen times. At about 2:30
a.m., defendant told the authorities that he wanted to lie down and try to
sleep because he was tired. Defendant stated that he was not allowed to
sleep.
After the sergeant left, defendant and Agent Beebe had a conversation.
Then, Agent Beebe asked defendant to sign a sheet of paper in order to
"verify" that she had talked to him. Defendant signed the paper, but he did
not read any notes prior to signing anything.
Later, while giving his court-reported statement to the ASA, defendant
stopped the proceeding in order to stall for time to acquire representation.
Defendant had agreed to give the statement only because he previously had been
threatened and denied the right to talk to an attorney. After defendant gave
the court-reported statement, he was brought out of the lockup in order to
review the typed statement. They handed him one page at a time, he signed
only the first two pages, then refused to sign the rest of the statement.
B. Motion to Suppress Evidence
Defendant testified that on August 31, 1993, at approximately 9 p.m., he
was in his apartment located at 3321 North Kenneth, Chicago, when the doorbell
rang. Defendant descended the rear stairs to answer the door and encountered
"at least 10" police officers. Sergeant McEnerney asked defendant if he was
Bill Lenius, then told him that they had a search warrant to search his
apartment. The sergeant pushed defendant aside, pushed the door open and a
few of the officers went upstairs into defendant's apartment. McEnerney did
not show defendant an arrest warrant.
The officers entered defendant's apartment ahead of him and without his
permission. Two officers remained in the living room, two went into the
kitchen, and three went into the bedroom. Defendant asked what was going on,
and McEnerney replied that they were "looking for something." McEnerney
refused to show defendant a warrant. McEnerney asked defendant to sign a
"verification that they were in fact serving said search warrant." Defendant
signed the document, although he could not read it because it was covered by
another piece of paper.
Defendant stated that the officers recovered and removed various items
from his apartment, but he was not given an inventory of the items removed.
McEnerney asked whether his truck was parked in front of the building.
Defendant did not give police permission to search his truck. When the
sergeant asked defendant if he knew anyone in Niles, defendant mentioned his
ex-girlfriend, Ellen Marshall. McEnerney replied that Ellen was dead.
Defendant then reached for the telephone to call Ellen's house to find
out "what was going on." McEnerney grabbed defendant's arm and pulled him
away from the telephone. The sergeant then ordered defendant to accompany the
officers to the Niles police station for the investigation of the death of
Ellen Marshall. Defendant said he wanted to straighten up his apartment first
and stated that he would go to the police station later with a friend. The
sergeant refused and told defendant that he had to accompany the officers.
Defendant stated that the officers searched his person without advising him of
his Miranda rights.
Sergeant McEnerney testified that he learned of the explosion on
August 31, 1993, from Ellen Marshall. Ellen also informed officers that, in
July 1993, she had received a package, wrapped in brown paper, placed between
the screen door and the front door of her parents' home. The return address
on the package was "PET Inc," and bore a Chicago address and postmark. Ellen
found no listing for such a company in the Chicago telephone directory. Ellen
took the package up to her room and unwrapped it and found that it contained a
portable stereo-radio. Ellen put the stereo-radio in her closet.
At about 7 p.m., the Cook County bomb squad performed an X ray on the
stereo-radio and found that it contained a metal pipe bomb, comprised of a
powder ignition source and a motorcycle battery. The components of the bomb
included PVC pipe, time caps and nails, bolts through the end caps, and
explosive powder. The bomb was powered by an electrical cord. The bomb squad
found that the end caps were made from the caps of an Edge shaving cream can.
The bomb squad performed a procedure to disarm the bomb and render it safe.
Ellen and her mother, Sybil, told the sergeant that they thought
defendant may have directed the bombs at her because Ellen had ended her
relationship with defendant. Ellen stated that shortly after she broke up
with defendant, she discovered sugar in the gas tank of her vehicle. Ellen
confronted defendant, who replied that he would not do anything to her car; he
would harm her instead. Ellen also informed the officers that defendant
tinkered with motorcycles, that he was in the United States Navy torpedo
school, and that he attended DeVry Institute of Technology for electronics.
Ellen told the officers defendant's address.
Eight police officers, including four Niles officers, proceeded to
defendant's residence, in search of the components of a pipe bomb. Some of
the officers approached the rear of defendant's residence and rang the
doorbell, while others waited at the side of the building. Defendant answered
the door, and Sergeant McEnerney identified himself and advised defendant of
the incident in Niles. Defendant agreed to speak to the officers and allowed
the officers to come in, leading the officers up the stairs.
Defendant entered his apartment first, followed by Sergeant McEnerney
and Niles police detective Kent Sall, and the other officers. McEnerney noted
that the small room was set up with electronic equipment and musical instru-
ments. Defendant told the police that they could look around. The sergeant
told defendant that he had to sign a consent to search form. The sergeant did
not tell defendant that they had a search warrant to search his apartment.
Detective Sall filled out a consent to search form in the presence of
the sergeant and defendant and read the form to defendant. Detective Sall
then handed the form to defendant, attached to a folder by a clip. The form
was not covered at the time the detective handed it to defendant. Defendant
signed the form, and the officers signed the form as witnesses.
The officers found PVC pipe, duct tape and a volt meter in the bedroom.
McEnerney observed a can of Edge shaving cream missing its cap in defendant's
bathroom. The can color matched the color of the cap that had been found in
the stereo-radio bomb.
The officers searched defendant's apartment for approximately an hour
and a half, recovering several bags of items from the apartment. The officers
then asked defendant if he would accompany them back to the Niles police
station. Defendant agreed, after first feeding his cats.
Once outside, defendant gave the officers permission to search his
vehicle and handed the officers the keys. McEnerney asked defendant if he
wanted to take his own car to the station or ride with the officers. Defen-
dant stated that he would go with the officers in their unmarked squad car.
At the police station, the officers showed the Cook County bomb squad
the items they retrieved from defendant's apartment. The items recovered by
the police were consistent with the contents of the stereo bomb.
Police secured a search warrant for defendant's residence at 10:30 a.m.
on September 1, 1993. Subsequently, police performed a second search of
defendant's apartment and recovered additional items.
Sergeant McEnerney denied telling defendant that Ellen Marshall had been
killed. He also denied telling Agent Beebe that he had told defendant that
Ellen Marshall had been killed. The sergeant stated that he told defendant
that there was an explosion near Ellen Marshall's home and that one person had
been killed and another person had been injured.
Niles police detective Kenneth R. Sall testified that he provided the
consent to search form, a two-sided card, which he read to defendant.
Defendant signed the card. Prior to leaving his apartment, defendant showed
the officers where he kept his cat food, and Detective Sall fed defendant's
cats.
At the conclusion of the hearing on both motions, the trial court found
that the police went to defendant's residence to talk to defendant and to
search his apartment and that, if defendant had not given consent to search,
the officers would have put a guard on the building and obtained a search
warrant. The trial court did not believe that defendant "kept signing things
just because the police officers said sign" or that defendant repeatedly
requested an attorney. The trial court found that attorney Griffith never
called the police station until defendant had given the majority of his
statements, including the court-reported statement, and that defendant never
knew that his employer had provided him an attorney. Based on all of the
evidence at the hearing, the trial court denied both defendant's motion to
suppress statements and motion to quash arrest and suppress physical evidence.
TRIAL
Doctor Jaime Collings testified that he treated Debra at Lutheran
General Hospital for second degree burns to her face and arms, a large
evulsion of her right thigh and an open injury below her left knee where the
bone was exposed. Debra suffered lesser shrapnel injuries to the side of her
body and shoulder. Debra was in critical condition and remained in the
intensive care unit of the hospital until October 1, 1993.
The parties stipulated to the testimony of the Cook County medical
examiner, who determined that Wayne's death was caused by a bomb blast. The
medical examiner recovered metal projectiles from Wayne's body, including
threaded pipe fragments and wire with clear plastic insulation. Similar
fragments were recovered from the body of the Conrad's dog.
Niles police officer John Huinker testified that he questioned Ellen
Marshall about the tool box at approximately 4 p.m. on the day of the explo-
sion. Ellen told him that earlier that year, someone had put sugar in her gas
tank. At about 5 p.m., Officer Huinker had a second conversation with Ellen,
along with her mother, Sybil, and Officer Sall. Sybil stated that it was
"probably Bill," or defendant, who delivered the stereo-radio box containing
the bomb to the Marshall home. Ellen stated, "Mom, don't bring Bill into
this, he wouldn't do something like that."
Agent Beebe testified that she interviewed Ellen at approximately 5:30
p.m. After a few minutes, Agent Beebe accompanied Ellen to her car to talk.
While they were talking, an officer approached the car and told Agent Beebe
that a package in Ellen's home had been identified as a bomb, and they needed
to evacuate the area. Agent Beebe told Ellen that the stereo-radio package in
her room contained a bomb. Ellen replied that if anyone would have done this
to her, "it would have been Bill."
Later, when Agent Beebe interviewed defendant alone, he stated that he
worked for an auto repair shop and a television repair shop. Defendant did
not recall where he had gotten the stereo or when he had delivered the
package. Defendant told Agent Beebe that he had the red tool box in his
apartment "for a couple or years." Defendant then explained how he construct-
ed the bomb in the tool box, then took the box up to Ellen's car that morning.
He stated that he thought the tool box would just smoke and "flare up," and
that he intended only to scare Ellen. Defendant told Agent Beebe that there
were no additional bombs. At about 3:30 a.m., defendant repeated that he had
built the bomb in the tool box.
Ellen Marshall testified that she met defendant at a party in August
1992, and they started dating. Ellen saw defendant a "few times a week," but
he wanted her to spend more time with him. Around Christmas 1992, Ellen
became pregnant by defendant. Ellen informed defendant of her intention to
get an abortion, and defendant agreed. She terminated the pregnancy in
January 1993.
Afterward, Ellen saw defendant less. In March 1993, they traveled
together to Washington, D.C. During this trip, Ellen told defendant that the
relationship was not working out and that she wanted to "remain friends."
Defendant was unhappy and told Ellen that he loved her and still wanted to be
with her. After their return, Ellen told defendant that she was interested in
dating someone else.
In May 1993, Ellen's mechanic discovered sugar in the gas tank of her
car and suggested that it was some form of "retaliation." Later that month,
Ellen accompanied defendant to his sister's wedding, but she left shortly
after the start of the reception and prior to the dinner.
Ellen saw defendant the last weekend of June 1993, when they attended a
parade, then went to a movie. After the movie, Ellen again told defendant
that "it wasn't working out." Defendant told Ellen that he felt he was not
"good enough" for her and that he loved her, but he felt she had "betrayed"
him.
On July 25, 1993, Ellen's grandmother died. Defendant sent Ellen a
sympathy card, and Ellen called defendant to thank him. That same week, the
package containing the stereo-radio arrived at her home.
After the explosion on August 31, 1993, Ellen ran outside and across the
courtyard to a neighbor's house. From there, she saw Debra Conrad in her
doorway, injured, and heard her say, "Ellen, it was the tool box."
Officer Karl Humbert of the Cook County sheriff's police explosives and
hazardous devices section (bomb squad) investigated the scene of the explosion
and found that the bomb had blown a hole through the Conrads' floor to the
basement. During the investigation, the bomb squad officers learned of the
stereo-radio package. X rays of the box containing the stereo revealed
objects not ordinarily found in a radio, including a cylindrical object
containing three-quarter-inch wire nails. The nails appeared to be suspended
in space, indicating that they were held in place by an explosive material.
The bomb squad disarmed the bomb and found that the radio contained a
length of PVC pipe filled with Hercules Red Dot smokeless powder and nails.
They also observed the tan plastic cap from Edge shaving cream. The ignition
device was an Estes brand model rocket ignitor. Officer Humbert characterized
this device as a "booby trap," designed to explode when the radio was either
plugged in or turned on.
After disarming the bomb, the bomb squad officers gathered evidence in
the Conrads' home. They determined that the bomb that killed Wayne Conrad was
a galvanized steel pipe bomb, powered by a six-volt wet cell battery. The
bomb squad also recovered some unburned fragments of green dot smokeless
powder and fragments of pipe, the red tool box, and electrical components.
They determined that the tool box bomb had been ignited by an Estes brand
model rocket ignitor.
Officer Humbert stated that the smokeless powder used in the two bombs
is easily obtainable at sporting goods stores and can be purchased with a
firearm owner identification card. Officer Humbert stated that the two
devices were very similar.
Sergeant McEnerney testified to the same substantial facts as in the
pretrial hearing. In addition, Sergeant McEnerney testified that, at 3:30
a.m., defendant admitted that he had made the device that exploded in the
Conrad townhouse. Defendant stated that he got the galvanized pipe out of the
garage, the powder from a friend who had since died, and the tool box from his
own home.
ASA Kinnerk testified that defendant described how he had constructed
the bomb. Defendant told ASA Kinnerk that at dawn on August 31, 1993, he went
to Ellen's parking lot and placed the tool box under Ellen's car. At the end
of this conversation, defendant agreed to give his statement again with a
court reporter present. The statement was transcribed verbatim by a court
reporter. Defendant read all 22 pages of the statement but signed only the
first two pages. As defendant prepared to sign the third page, he stopped and
requested an attorney.
ATF forensic chemist Gregory Czarnopys testified that he examined the
remnants and fragments of both the disarmed radio bomb, and the tool box bomb,
as well as the items recovered from defendant's apartment and truck. Czar-
nopys confirmed the description of the bomb materials as described above. He
stated that the nails had no other purpose but to "produce harm." All of the
vents in the radio had been sealed with black three-quarter-inch duct tape, so
that it was impossible to see into the radio. The radio bomb was designed to
explode when plugged into a wall socket; the tool box bomb was activated by
its lock mechanism.
Evidence seized from defendant's apartment was visually similar to the
wire found in the tool box bomb. A microscopic examination of the wire
revealed that it was identical to the wire used in the tool box bomb. Samples
of tape were similarly consistent. The capless can of Edge shaving cream
matched both in color and in fit to the caps found in the radio bomb.
The parties stipulated that a fingerprint recovered from the brown paper
in which the radio bomb had been wrapped did not match that of defendant or
any other individual associated with the case.
Detective Sall testified that during the search of defendant's apart-
ment, he either stood in the living room or sat next to defendant on the
couch. Defendant was not instructed to remain on the couch. Defendant made
no telephone calls but would have been allowed to had he so desired. Officer
Sall fed defendant's cats because defendant was a possible suspect and the
officer preferred that defendant not reach into the cabinet.
Following entry of the guilty verdict, the jury recommended a sentence
of death. However, after a hearing, the trial court found factors mitigating
a death sentence and sentenced defendant to consecutive terms of imprisonment
of natural life for murder and 30 years for attempted murder, and concurrent
terms of seven years for aggravated battery and five years for possession of
an incendiary or explosive device. Defendant's timely appeal followed.
OPINION
I. PRETRIAL MOTIONS
Initially, defendant contends that the trial court erred in denying
defendant's motions to quash arrest and suppress evidence. Defendant argues
that the evidence seized from his apartment failed to connect him to the bomb
that exploded at the Conrad home killing Wayne Conrad but, rather, merely
connected him to the stereo-radio bomb. Thus, defendant argues that his
seizure was without probable cause and the items seized should have been
suppressed. Defendant further argues that no probable cause existed to
warrant his arrest.
On review, we will not disturb a trial court's determination on a
motion to suppress absent a determination that the trial court's finding was
manifestly erroneous. People v. Melock, 149 Ill. 2d 423, 599 N.E.2d 941,
(1992). Further, it is the function of the trial court to determine the
credibility of the witnesses and to resolve any conflict in their testimony.
People v. Redd, 135 Ill. 2d 252, 289, 553 N.E.2d 316 (1990).
Both the United States and Illinois Constitutions protect individuals
from unreasonable searches and seizures. U.S. Const., amend. IV; Ill. Const.
1970, art. I, 6. A seizure, for fourth amendment purposes, is synonymous
with an arrest. Absent probable cause or a warrant based thereon, an arrest
is violative of the fourth amendment protections. See Dunaway v. New York,
442 U.S. 200, 60 L. Ed. 2d 824, 99 S. Ct. 2248 (1979).
A person has been arrested when his freedom of movement has been
restrained by means of physical force or a show of authority. United States
v. Mendenhall, 446 U.S. 544, 553, 64 L. Ed. 2d 497, 508, 100 S. Ct. 1870, 1877
(1980). The relevant inquiry in determining whether a suspect has been
arrested is whether, under the circumstances, a reasonable person would
conclude that he was not free to leave. People v. Eddmonds, 101 Ill. 2d 44,
61, 461 N.E.2d 347 (1984); Mendenhall, 446 U.S. at 554, 64 L. Ed. 2d at 509,
100 S. Ct. at 1877. Additional factors considered in a determination of
whether an arrest has occurred include the intent of the officer and the
understanding of the suspect (People v. Wipfler, 68 Ill. 2d 158, 165, 368 N.E.2d 870 (1977)) and whether the suspect was told that he was free to leave
or that he was under arrest. People v. Holveck, 141 Ill. 2d 84, 95, 565 N.E.2d 919 (1990).
Defendant argues that he was arrested when police officers requested
that he remain seated on his couch while the officers searched his apartment.
He further argues that he was arrested when police "required" him to ride to
the police station with three police officers.
However, the record shows that defendant was not arrested at his
apartment. The testimony at the hearing revealed that defendant was "just
sitting on the couch" with Detective Sall. The record shows that defendant
read and signed a form authorizing the authorities to search his apartment and
that he gave the keys to his truck to officers to perform a search thereof.
The record further shows that defendant agreed to accompany the officers to
the Niles police station voluntarily and was offered the option of taking his
own vehicle. Thus, defendant has not shown that he was in an "inherently
coercive setting, which would affect substantially his will to resist or
compel him to speak." See, e.g., People v. Fischetti, 47 Ill. 2d 92, 98, 264 N.E.2d 191 (1970), (citing People v. Cerrato, 24 N.Y.2d 1, 246 N.E.2d 501, 298 N.Y.S.2d 688 (1969).
Although defendant testified that he did not see the consent form he
signed, the trial court found that his testimony was not credible, and we
cannot find that this determination was contrary to the manifest weight of the
evidence.
Defendant further argues that the trial court's decision was improperly
based on Sergeant McEnerney's "false or misleading testimony." Defendant
cites as false the sergeant's testimony that he spoke to Ellen Marshall, and
that Ellen implicated defendant, when in fact, Ellen testified that her mother
Sybil talked to police and implicated defendant. In addition, defendant cites
as false Sergeant McEnerney's testimony that he did not tell defendant that
Ellen was dead, when Agent Beebe testified that Sergeant McEnerney told her
that he had in fact told defendant that Ellen was dead.
The trial court specifically addressed the inconsistencies in some of
the police officer's testimony, concluding that they were trivial:
"I would also agree * * * that there are some incon-
sistencies and contradictions among the police offi-
cers in this case, but I believe that is true in any
extended motion or trial where you have various wit-
nesses testifying as it is a human factor, and I don't
place that much importance as to who fed the cats et
cetera, et cetera."
In addition, defendant misrepresents Ellen's trial testimony. The
record shows that while Ellen made the initial comment to her mother, she
later admitted to Agent Beebe that if anyone would have done this to her, "it
would have been Bill."
In light of the record, defendant has failed to show that the trial
court's ruling was manifestly erroneous.
Next, defendant contends that the trial court erred in denying his
motion to suppress statements. Defendant argues that his statement was not
given voluntarily but was, in fact, the product of a "coercive atmosphere."
Defendant argues that he was coerced into a confession by Sergeant McEnerney,
who informed him that Ellen Marshall was dead and that his fingerprints had
been located on the bomb.
For a confession to be admissible in evidence, the trial court must
determine that it was made voluntarily without compulsion or inducement.
People v. Case, 218 Ill. App. 3d 146, 577 N.E.2d 1291 (1991). The standard of
voluntariness requires a knowing, intelligent and voluntary decision to
confess. People v. Kincaid, 87 Ill. 2d 107, 429 N.E.2d 508 (1981); see also
People v. Bernasco, 138 Ill. 2d 349, 562 N.E.2d 958 (1990). A confession is
voluntary if, based on the totality of the circumstances, the accused's will
was not overborne at the time he confessed; the confession must be the
product of a rational intellect and a free will. Kincaid, 87 Ill. 2d at 117,
429 N.E.2d at 511; People v. Jones, 196 Ill. App. 3d 937, 957, 554 N.E.2d 516, 528 (1990). It is well settled that a reviewing court will not disturb a
circuit court's finding on a motion to suppress unless it is manifestly
erroneous. People v. Gacho, 122 Ill. 2d 221, 234, 522 N.E.2d 1146 (1988),
cert. denied, 488 U.S. 910, 102 L. Ed. 2d 252, 109 S. Ct. 264 (1988); People
v. Neal, 109 Ill. 2d 216, 218, 486 N.E.2d 898 (1985).
In support, defendant cites Lynumn v. Illinois, 372 U.S. 528, 9 L. Ed.
2d. 922, 83 S. Ct. 917 (1963). There, upon the defendant's arrest for
unlawful sale and possession of marijuana, police officers falsely told her
that "if we took her into the station and charged her with the offense, that
the ADC [Aid to Dependent Children] would probably be cut off and also that
she would probably lose custody of her children." Lynumn, 372 U.S. at 533, 9 L. Ed. 2d at 926, 83 S. Ct. at 920. Under these circumstances, the Supreme
Court found that the defendant's confession was coerced and reversed the
defendant's conviction. Lynumn, 372 U.S. at 534, 9 L. Ed. 2d at 926, 83 S. Ct. at 920.
Defendant further relies on People v. Lee, 128 Ill. App. 3d 774, 471 N.E.2d 567 (1984). There, after the defendant's arrest for rape, the defen-
dant denied that he had been in the complainant's apartment on the night of
the offense. The assistant State's Attorney (ASA) accurately told the
defendant that he had been identified as the complainant's assailant, but
intentionally misrepresented to the defendant that his fingerprints had been
found in the complainant's apartment. The defendant then admitted that he had
in fact been present in complainant's apartment on the night of the offense.
At trial, the complainant testified that the defendant was her coworker and a
social acquaintance who had visited her home on a prior occasion. This court
reversed the defendant's conviction and remanded for a new trial, finding that
the misrepresentation by the ASA regarding the fingerprints rendered defen-
dant's subsequent confession involuntary and therefore inadmissible. Lee, 128
Ill. App. 3d at 781.
Lynumn and Lee are distinguishable from the present case. Here, both
Sergeant McEnerney and Detective Sall testified that when they arrived at
defendant's apartment the sergeant informed defendant that one person was dead
and another injured. Although Agent Beebe testified that Sergeant McEnerney
later told her that he had told defendant that Ellen Marshall was dead, Agent
Beebe specifically informed defendant that Ellen Marshall was not dead, two
hours prior to the time defendant gave his statement of confession. Under
these circumstances, defendant has not shown that any misinformation about the
life of Ellen Marshall contributed to his statement of confession.
Regarding defendant's further allegation that Sergeant McEnerney falsely
represented that his fingerprints had been found "all over the bomb," there is
no reliable evidence in the record that the officer made such a misrepresenta-
tion. The trial court determined that defendant's testimony at the hearing
was not credible, and that determination is supported by the manifest weight
of the evidence. Thus, defendant has not shown any error that rises to the
level of those found in Lynumm and Lee.
Defendant further argues that he did not understand his constitutional
rights when they were read to him.
The record reflects that when Sergeant McEnerney initially read defen-
dant his Miranda rights, defendant said he had a question about his right to
stop the questioning in order to consult with a lawyer. Sergeant McEnerney
explained the right to defendant as follows:
"If I start talking at any time that you find that you
cannot answer a question or you would like an
attorney, we'll stop asking you questions and you can
consult with an attorney."
Defendant stated that he understood, then read and signed a separate acknowl-
edgment and waiver of his rights.
Defendant further argues that he had no prior experience with law
enforcement and had a limited education; police threatened him and told him he
would be injured while incarcerated; he was not allowed to sleep during the
evening hours of August 31, 1993, and the early morning hours of September 1,
1993; and police never left him alone at the police station for more than a
few minutes.
The trial court took into consideration that defendant had no prior
experience with law enforcement but found as follows:
"He is a mature adult. I listened careful [sic] to
his testimony and of course the testimony of all of
the witnesses, and I found the defendant to be very
articulate, forceful, mentally sharp, and strong
willed. And in addition to that, I found him to be
very, very, precise when he was on the stand wanting
to exact the diagram as far as his apartment, and
other things of that nature during his testimony."
The trial court found that defendant's testimony was not credible and that
defendant was not coerced into making his confession. We cannot conclude
based on this record that the determination of the trial court was against the
manifest weight of the evidence.
II. PROOF OF THE CRIME BEYOND A REASONABLE DOUBT
Next, defendant contends that the State failed to prove the corpus
delicti of the offenses of attempted first degree murder and possession of an
explosive or incendiary device guilty beyond a reasonable doubt. Defendant
argues that the State proved neither that he had the specific intent to kill
Ellen Marshall and that he took a substantial step towards that act, nor that
he had the intent to kill Wayne Conrad. Defendant further contends that the
State improperly introduced evidence of other crimes at trial, in order to
prove him guilty of the murder of Wayne Conrad.
Proof of corpus delicti requires both proof that a crime was committed
and that it was committed by the person charged. People v. Cloutier, 156 Ill. 2d 483, 503, 622 N.E.2d 774 (1993); People v. Lambert, 104 Ill. 2d 375, 378,
472 N.E.2d 427 (1984). In cases where a defendant's confession is part of the
proof of the corpus delicti, the prosecution must also adduce corroborating
evidence independent of a defendant's own statement. Lambert, 104 Ill. 2d at
378-79. Such evidence need not rise to the level of proof beyond a reasonable
doubt, but must only tend to confirm a defendant's confession. Cloutier, 156 Ill. 2d at 503. In this case, the corpus delicti of attempted first degree
murder requires proof that, with intent to kill, the defendant committed an
act that constituted a substantial step toward the commission of the murder.
720 ILCS 5/8-4 (West 1994); People v. Burrage, 269 Ill. App. 3d 67, 76, 645 N.E.2d 455 (1994).
Intent is a state of mind that can be shown by surrounding circumstanc-
es, including the character of the assault and the use of a deadly weapon, and
can be inferred when it has been shown that the defendant voluntarily and
willingly committed an act, the natural tendency of which was to destroy
another's life. People v. Coolidge, 26 Ill. 2d 533, 537, 187 N.E.2d 694
(1963); People v. Winters, 151 Ill. App. 3d 402, 405, 502 N.E.2d 841 (1986).
Under the doctrine of transferred intent, a defendant's intent to kill the
intended victim is transferred to the actual victim. Burrage, 269 Ill. App.
3d at 76.
Evidence of other offenses is admissible if relevant for any purpose
other than to show propensity to commit a crime. People v. Jones, 156 Ill. 2d 225, 239, 620 N.E.2d 325, 330 (1993); People v. Williams, 285 Ill. App. 3d
394, 673 N.E.2d 1169 (1996). Other crimes evidence may be relevant to prove
modus operandi, intent, identity, motive or absence of mistake. People v.
Robinson, 167 Ill. 2d 53, 62-63, 656 N.E.2d 1090 (1995). Furthermore,
whenever evidence of another crime is offered, there must be some similarity
between the other crime and the crime charged in order to ensure that it is
not being used to establish the defendant's criminal propensity. People v.
Johnson, 239 Ill. App. 3d 1064, 1074, 608 N.E.2d 36 (1992). The trial court's
decision to allow such evidence will not be reversed absent a clear abuse of
discretion. Robinson, 167 Ill. 2d at 63, 656 N.E.2d 1090.
In the present case, the record reveals evidence of modus operandi.
Along with other circumstantial evidence, the evidence links defendant to the
stereo bomb, and the stereo bomb itself provides overwhelming evidence that
defendant built and delivered the tool box bomb with the clear intent to kill
Ellen Marshall. The package was addressed to her, and it was filled with
nails suspended in explosive powder, which have no other purpose but to
increase the amount of harm caused by the explosion. The record further shows
that the tool box bomb was a "very similar" device, constructed of similar
materials. Various components and fragments of each device matched materials
discovered in defendant's apartment. The evidence therefore linked defendant
to both bombs and provided a modus operandi for the crimes. Defendant's
intent to kill Ellen transferred to Wayne Conrad when Wayne triggered the
explosive device in the tool box. Therefore, the record shows that the State
proved the corpus delicti beyond a reasonable doubt.
III. JUROR IMPARTIALITY
Next, defendant contends that the trial court erred in failing to
dismiss a juror who indicated during trial that he had failed to provide
attorneys with accurate information during the voir dire.
During the course of the trial, the trial court received a note from a
juror stating that his daughter was a classmate of Wayne Conrad's daughter at
the Nelson school at the time of the bombing and that the juror's daughter had
told him about what had happened to the Conrad family.
The trial court conducted a hearing to inquire into the extent of the
juror's knowledge. The juror stated that he had never met the Conrad family
and did not know the Conrads' daughter. He further stated that he had not
discussed this matter with any other juror and that he could be fair. The
trial court denied defense counsel's motion to strike the juror in favor of an
alternate.
The right to a jury trial guarantees to a criminal defendant a fair
trial by a panel of impartial jurors. People v. Cole, 54 Ill. 2d 401, 411,
298 N.E.2d 705 (1973). A person is not competent to sit as a juror if his
state of mind or mental attitude is such that, with him as a member of the
jury, the defendant will not receive a fair and impartial trial. Cole, 54 Ill. 2d at 413. The burden of showing that a venireperson possesses a
disqualifying state of mind is on the party making the challenge, and the
determination of whether the venireperson has the state of mind which will
enable him to give to an accused a fair and impartial trial rests in the sound
discretion of the trial judge. This determination is not to be set aside
unless it is against the manifest weight of the evidence. Cole, 54 Ill. 2d at
414-15.
In the present case, defendant failed to meet his burden of showing that
the juror was prejudiced against him and could not be fair. The record does
not reveal that the juror had any special friendship with the Conrad's
daughter. Therefore, defendant has failed to show that the trial court erred
in refusing to dismiss the juror for cause.
IV. TRIAL JUDGE AS ADVOCATE
Next, defendant contends that the trial court improperly acted as an
advocate on behalf of the State by highlighting certain evidence that was
prejudicial to defendant. Defendant argues that, on several occasions, the
trial court directed questions at witnesses that went beyond mere clarifica-
tion of earlier testimony and that, instead, elicited damaging and highly
prejudicial evidence against him.
Specifically, defendant objects to the following actions of the trial
court: (1) asking an explosives expert whether the bomb in this case was
equivalent to a hand grenade or was more powerful than a hand grenade; (2)
asking Agent Beebe to describe the contents of the notes she made after her
interview with defendant; and (3) instructing the jury as to the law at
various points during the trial, rather than at the end of the trial.
The State initially responds that defendant has waived this issue for
review for failing to object both at trial and in his posttrial motions.
People v. Enoch, 122 Ill. 2d 176, 522 N.E.2d 1124 (1988). In addition, the
State notes that defendant fails to describe precisely how he was prejudiced
by the trial court.
Nevertheless, a trial judge must take precautions not to assume the role
of advocate when asking questions in a jury trial. The trial judge must
question in a "fair and impartial manner, without showing prejudice or bias
against either party." People v. Gilbert, 12 Ill. 2d 410, 415, 147 N.E.2d 44,
47 (1957). The line of judicial propriety "is clearly crossed when the judge
departs from his function as a judge and assumes the role of prosecutor."
People v. McGrath, 80 Ill. App. 2d 229, 236, 224 N.E.2d 660 (1967). When that
happens, whether or not the defense objects, judicial influence fatally
infects the trial. People v. Santucci, 24 Ill. 2d 93, 99, 180 N.E.2d 491
(1962); People v. Rega, 271 Ill. App. 3d 17, 648 N.E.2d 130 (1995).
In the present case, the record does not show that the trial judge
improperly assumed the role of prosecutor. Regarding the explosive device,
the trial judge asked for a comparison and did not demonstrate any unfair
prejudice. The trial judge's request that Agent Beebe state the content of
the additions to her notes was prompted by questions asked by the parties
during trial wherein she stated that she made additional notes, but she did
not state what the notes contained. Defendant does not argue that the content
of these additional notes is incriminating.
V. CLOSING ARGUMENTS
Next, defendant contends that the State's closing arguments were
prejudicial and thereby denied him a fair trial. Defendant argues that
certain comments of the prosecutor inflamed the passions, prejudices and
sympathy of the jury and misstated the applicable law.
The State responds that defendant has waived most of this issue on
review, for failure to object to the specific comments at trial and to raise
his objections in his posttrial motion. People v. Enoch, 122 Ill. 2d 176, 522 N.E.2d 1124. The State notes that defendant failed to object to the remarks
defendant now complains of in all but two instances.
In general, courts allow a great deal of latitude to the prosecution
during closing and rebuttal arguments. People v. Williams, 147 Ill. 2d 173,
231, 588 N.E.2d 983 (1991); People v. Smith, 199 Ill. App. 3d 839, 854, 557 N.E.2d 596 (1990). When reviewing allegations of prosecutorial misconduct,
the complained-of remarks must be considered in the context of the entire
closing arguments of both the State and the defendant. People v. Cisewski, 118 Ill. 2d 163, 175-76, 514 N.E.2d 970 (1987). In closing argument, a prosecu-
tor may comment on the evidence and legitimate inferences arising therefrom,
and such comments do not exceed the bounds of proper argument. Williams, 147 Ill. 2d at 231.
During closing argument, the prosecutor discussed Agent Beebe's testi-
mony that she was "confused" when Sergeant McEnerney told her that he had
informed defendant that Ellen Marshall had died. The prosecutor further
commented that "McEnerney doesn't recall saying that." The prosecutor then
stated: "And there will be no instruction that says that it's not a legiti-
mate questioning technique." The trial court overruled defense counsel's
objection to this comment. This comment by the prosecutor did not indicate
that the conduct of the police constituted legitimate questioning techniques
and "that it is done the same way in other cases," as defendant contends.
The trial court also overruled defendant's objection to the following
comment:
"What the attorneys say is not evidence. And forgive
me if I misstate the evidence at all. For example, in
opening statement, we heard that Cindy Beebe told the
defendant that you say you made the bomb and you just
wanted to flash, and I'll save you. Did you hear any-
thing like that at trial? No. None whatsoever. That
doesn't exist."
Defendant fails to explain how this comment was improper.
The record does not show that defendant was denied a fair trial by
either of the comments which were preserved by objection at trial.
VI. SENTENCING
Next, defendant contends that the trial court erred in imposing a
sentence of natural life without parole for the first degree murder of Wayne
Conrad. Defendant argues that the trial court overlooked several statutory
factors in arriving at the life sentence and also erred by finding that the
murder of Wayne Conrad was brutal and heinous.
The sentencing decision of a trial court is entitled to great deference
and weight (People v. LaPointe, 88 Ill. 2d 482, 431 N.E.2d 344 (1981)), and
absent an abuse of discretion by the trial court, a sentence may not be
altered upon review. People v. Perruquet, 68 Ill. 2d 149, 368 N.E.2d 882
(1977). This court will not substitute its judgment for that of the trial
court merely because it would have balanced the appropriate factors different-
ly had it been charged with the task of sentencing, (People v. Cox, 82 Ill. 2d 268, 412 N.E.2d 541 (1980)), especially where the sentence imposed by the
trial court is within the statutory limitation. People v. Lambrechts, 69 Ill. 2d 544, 372 N.E.2d 641 (1977).
The record indicates that the trial court found defendant eligible for
the death penalty based on the statutory provision that:
"the murder was committed in a cold, calculated and
premeditated manner pursuant to a preconceived plan,
scheme or design to take a human life by unlawful
means, and the conduct of the defendant created a rea-
sonable expectation that the death of a human being
would result therefrom." 720 ILCS 5/9-1(b)(11) (West
1994).
Following a hearing in aggravation and mitigation, in which the trial court
listened to witnesses and read the presentence investigation report, the trial
court made the following finding:
"The defendant has caused numerous families much
sorrow and suffering including his own. The sending
of a bomb concealed in an innocent toolbox is just
outrageous. I believe that the manner in which he
killed the victim was brutal and heinous in this
particular case as well as premeditated. I do not
want to see this defendant ever leave the peniten-
tiary."
The trial court then sentenced defendant to a term of natural life for the
murder of Wayne Conrad.
Our supreme court has held that the statutory phrase "exceptionally
brutal or heinous behavior" must be given its ordinary meaning, and it has
defined "heinous" as being "hatefully or shockingly evil; grossly bad;
erroneously and flagrantly criminal." People v. Lucas, 132 Ill. 2d 399, 445-
46, 548 N.E.2d 1003 (1989). Under the circumstances of this case, the trial
court properly found the crime committed by defendant to be brutal and heinous
and sentenced defendant accordingly. We find no error.
Finally, defendant contends that he was denied his right of allocution
at sentencing, because the trial court asked him if he wished to make a
statement after it had already imposed sentence.
The failure of the trial court to ask a defendant if he wished to make a
statement is a technical error which does not require reversal. People v.
Munn, 216 Ill. App. 3d 1058, 1062, 576 N.E.2d 582 (1991). The record shows
that the trial court considered all the factors in aggravation and mitigation
in determining defendant's sentence. Defense counsel acknowledged that the
trial court followed proper sentencing procedure and concluded: "I don't have
any request at this time to allow him to make that statement." Therefore, no
error occurred in defendant's sentencing.
For all of the reasons stated above, we therefore affirm the judgment of
the trial court.
Affirmed.
O'BRIEN, J., and GALLAGHER, J., concur.
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