People v. Haskell

• Decision Date: 24 September 1968
• Docket Number: No. 40808,40808
• Citation: 41 Ill.2d 25,241 N.E.2d 430
• Parties: The PEOPLE of the State of Illinois, Appellee, v. Garey HASKELL, Appellant.
• Court: Illinois Supreme Court

Page 430

241 N.E.2d 430

41 Ill.2d 25

The PEOPLE of the State of Illinois, Appellee, v. Garey HASKELL, Appellant.

No. 40808.

Supreme Court of Illinois.

Sept. 24, 1968.

Rehearing Denied Nov. 21, 1968.

Rogers, Strayhorn & Harth, Chicago, appointed by the court, for appellant.

William G. Clark, Atty. Gen., Springfield, and John J. Stamos, State's Atty., Chicago (Fred G. Leach, Asst. Atty. Gen., and Elmer C. Kissane and James S. Beldman, Asst. State's Attys., of counsel), for appellee.

KLUCZYNSKI, Justice.

Following a jury trial in the circuit court of Cook County, defendant, Garey Haskell, was convicted of murder and sentenced to imprisonment for a term of not less than 14 nor more than 25 years. He appeals directly to this court, contending that a revolver admitted in evidence against him was the product of an illegal search and should have been suppressed, and that the evidence was not sufficient to support his conviction.

On November 10, 1965, at about 6:00 P.M. the body of the deceased was discovered lying face down in the rear part of the Interstate Blood Bank quarters at 729 W. 63rd Street, Chicago, Illinois, by the janitor. The Chicago police were summoned, arriving at the scene almost immediately. Their investigators initially noted that the rear entrance to the Blood Bank, leading to an alley and parking lot, was open. They observed that the victim had sustained gunshot wounds in the face and chest, that his pockets had been turned out and his shoes removed. When the decedent was positioned face up, the janitor identified him as Tom P. Thomas, an employee of the Blood Bank. The janitor told the officers he had entered the building by unlocking the front door and had not tampered with the rear entrance.

Later that evening the police questioned defendant, a co-worker of the deceased, at Area No. 3, Headquarters, releasing him after a short period. Still later, Herman Stallworth, another co-employee at the Blood Bank, who was also a Chicago patrolman, reported to Headquarters and told the investigating detectives that he had left the Blood Bank at 3:00 P.M. that afternoon, leaving defendant and Thomas alone in the building. He further related that he had sold defendant a .22 calibre Beretta about a month earlier.

Upon receipt of this information, detectives Lee and Bencke, accompanied by Stallworth, went to defendant's home, arriving around 2:30 A.M., November 11. They were admitted into the house where they informed defendant that it was necessary for him to return to the station to make a further statement. Defendant dressed and left with the officers. When confronted with Stallworth, who had remained outside in the police car, he acknowledged purchasing a gun but stated he had resold it.

While defendant was being interrogated at headquarters, police detectives returned to his home sometime around 6:00 or 7:00 A.M. and obtained a gun, complete with holster and loaded clip, from defendant's wife. The facts and circumstances surrounding the seizure of the gun were the subject of much contradiction at the hearing on the motion to suppress it. In substance, the detectives testified that, upon questioning, Mrs. Haskell had admitted that her husband had owned a gun, and had voluntarily retrieved it from an upstairs closet and handed it over to them. Defense witnesses, who were present at the time, including Mrs. Haskell, testified that the police had obtained the gun by intimidation and deceit. The trial court denied the motion to suppress.

In addition to introduction of the gun at trial, the State's case consisted of Stallworth's testimony establishing defendant's and the victim's presence at the blood Bank shortly before the latter's body was discovered and the testimony of a ballistics expert who rendered the opinion that three of the bullets removed from the deceased's body were fired from the gun in question. Cross-examination of this witness developed that his opinion was based solely on similarities in markings found between the evidence bullets and bullets test-fired from the evidence gun. The witness admitted that he also found differences in markings between these bullets and could not tell how many marks of similarity and difference existed. He stated that the bullets taken from the evidence gun were of different manufacture than those recovered from the body of the victim. He further admitted that although the police crime laboratory where he worked had the latest equipment, he performed no other test on the bullets other than viewing these markings or striations through a comparison microscope. For example, he did not measure the diameter of the evidence bullets and the diameter of the bore of the evidence gun to determine whether the bullets were larger than the bore of the weapon, or whether the lands and grooves (high and low portions) of the bullets coincided with the grooves and lands, respectively, of the gun. Nor did he determine whether the gun had been recently fired.

The State concedes that the only basis for upholding the search and seizure in the instant case from constitutional prohibition is the alleged consent of defendant's wife to the search. To defeat this claim of consent, defendant argues that his wife was not empowered to waive his constitutional right to be free from unreasonable searches and seizures, or, in the alternative, if empowered, her purported consent was not made knowingly, understandingly or voluntarily and was therefore not an effective waiver of his rights.

It is well established 'that where two persons have equal rights to the use or occupation of premises, either may give consent to a search and the evidence thus disclosed can be used against either.' (People v. Shambley, 4 Ill.2d 38, 42, 122 N.E.2d 172, 174; People v. Perroni, 14 Ill.2d 581, 153 N.E.2d 578.) Accordingly, the consent by a defendant's wife to a search of an apartment jointly owned or occupied by them has been held sufficient to waive her husband's constitutional immunity. (People v. Speice, 23 Ill.2d 40, 177 N.E.2d 233; People v. Stacey, 25 Ill.2d 258, 184 N.E.2d 866.) Since the record here establishes that defendant's wife jointly occupied and had equal rights to possession of the apartment, she had authority to consent to the search, and the determinative question thus becomes whether her assent was of such a voluntary nature as to effectively waive the right against unreasonable search and seizure. As respects this issue, the prosecution, because it relies upon the consent to justify the lawfulness of the search and seizure, has the burden of proof, and this burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority. Bumper v. State of North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797.

Two police officers testified at the hearing on the motion to suppress concerning Mrs. Haskell's assent to the search. Officer Lee stated that he and Officer O'Neil went to defendant's home at about 6:00 A.M. on November 11, and were admitted by defendant's wife into a room...