People v. Kilfoy

• Decision Date: 08 March 1984
• Docket Number: Nos. 83-75,83-76,s. 83-75
• Citation: 122 Ill.App.3d 276,80 Ill.Dec. 798,466 N.E.2d 250
• Parties: , 80 Ill.Dec. 798 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Bryan KILFOY and Linda Stroh, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 250

466 N.E.2d 250

122 Ill.App.3d 276, 80 Ill.Dec. 798

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Bryan KILFOY and Linda Stroh, Defendants-Appellants.

Nos. 83-75, 83-76.

Appellate Court of Illinois Second District.

March 8, 1984.

Rehearings Denied June 4 and Aug. 17, 1984.

Robert P. Will, Jr., Woodstock, Weinberg & Weinberg, Edward D. Triwush & Marshall R. Weinberg, Reilley & Witlin, James W. Reilley, Chicago, for defendants-appellants.

Theodore Floro, State's Atty., Woodstock, Phyllis J. Perko, Andrea Becker, State Attys. Appellate Service Commission, Elgin, for plaintiff-appellee.

UNVERZAGT, Justice:

Defendant, Bryan Kilfoy, was charged in McHenry County with unlawful possession of more than 500 grams of a substance containing cannabis, and possession of more than 500 grams of a substance containing cannabis with intent to deliver. (Ill.Rev.Stat.1981, ch. 56 1/2, pars. 704(e) and 705(e).) His pretrial motions to quash the search warrant and suppress the evidence and to suppress statements were denied, and he was found guilty in a bench trial of both offenses. He was sentenced on the count charging possession with intent to deliver to a term of four years in the Department of Corrections, and was fined $25,000.

Defendant, Linda Stroh, was charged in McHenry County with unlawful possession of more than 30 grams of a substance containing cocaine, a controlled substance, with unlawful possession of more than 500 grams of a substance containing cannabis, and with one count each of unlawful possession of those two substances with intent to deliver. Ill.Rev.Stat.1981, ch. 56 1/2, pars. 1402(a)(2), 704(e), 705(e), and 1401(a)(2).

Her pretrial motions to quash the search warrant and suppress the evidence, and to suppress statements, were denied, and her case was consolidated for trial with Kilfoy's. She was found guilty in a bench trial of the unlawful possession charges, and not guilty of the charges of possession with intent to deliver. She was sentenced to a four-year term of imprisonment on the possession of cocaine count and a two-year term on the possession of cannabis count, the sentences to run concurrently, and fined $4,200. Kilfoy and Stroh's appeals were consolidated on the State's motion.

Three issues are presented: (1) whether both defendants effectively waived their right to trial by jury; (2) whether the court erred in denying both defendants' motions to quash the warrant and suppress the evidence; and (3) whether the court erred in denying Stroh's motion to suppress statements.

On February 5, 1982, at 3:30 p.m., three Chicago police officers conducted a search pursuant to a warrant issued for:

" 'Brian' Male/White Approx. 30 years. 6'0 165 lbs. Brn. hair and 4008 Cherry Valley Road [space] House [space] Crystal Lake, McHenry County, Ill. and seize Marijuana: to wit Cannabis Sativa & Proof of Residency."

The police were admitted to the house by the defendant, Linda Stroh, and were told the defendant, Bryan Kilfoy, was skiing. In response to a question, she stated that she resided in the house. A friend, Stewart Ogan, was also present when the officers arrived.

During the two-hour search of the residence, four burlap bags and three plastic bags of marijuana were found in a crawl space in the basement, and a quantity of cocaine and marijuana was found in one closet of one of the three bedrooms in the house. Stroh was arrested after the marijuana was found in the crawl space. In response to a question during the search of the house, she stated the bedroom in which the cocaine was found was hers.

Kilfoy arrived at the house in a car driven by Matthew Praxmarer after the search was concluded but before the police had departed. An officer approached the car, said "Bryan?", and Kilfoy responded, "Yes." He also admitted that he lived in the house. He was then arrested. Four individuals other than Praxmarer had come to the house during the two-hour search; Mark Clodius, Robert Vehe, Keith Jansen, and William Jachimek. All gave their addresses to the police and were released.

During trial, it was revealed that Stroh had lived at the house for about seven months with Kilfoy and his girl friend, Toni Grill. Stroh assisted Kilfoy and Clodius in a workshop in the basement of the house where the three made jewelry. Vehe also stayed at the house on occasion, and did some carpentry work on the house in lieu of rent. Clodius had also lived at the house for awhile, and in his work with Kilfoy in their jewelry business, he was present in the house on a daily basis. He and Kilfoy were co-owners of a jewelry store in Lake Geneva, Wisconsin; Stroh occasionally worked at the store and also assisted in the jewelry-making at the house. Additionally, Stroh took in sewing. Stroh testified everyone in the house had access to all the rooms, and that the closet in which the cocaine was found was the "junk" closet. She denied any prior knowledge of the marijuana or the cocaine.

Mark Clodius testified at trial to an incident in which he arrived at the house in late January or early February of 1982, and saw Vehe coming out of Stroh's bedroom. No one else was in the house at the time, and Vehe appeared very nervous. Clodius also testified Vehe often used the crawl space, and that Kilfoy did not.

Kilfoy testified Vehe did not pay any rent, did some carpentry work around the house, and was supposed to be cleaning the crawl space during the month prior to the search. Kilfoy stated he had not seen Vehe since the day the search was conducted, and denied he had any knowledge of the contraband discovered during the search.

1. Jury waivers.

The defendants make identical arguments, claiming the record fails to show that they effectively waived their right to a jury trial because it does not reflect this right was explained to them; therefore, their written waivers could not be regarded as having been made understandingly and voluntarily. In primary support, they cite People v. Gaston (1971), 132 Ill.App.2d 900, 270 N.E.2d 846, and People v. Rambo (1970), 123 Ill.App.2d 299, 260 N.E.2d 119.

Both cases are distinguishable. In Gaston, the defendant entered a negotiated plea of guilty and, except for a written waiver of jury signed by the defendant, the record was completely silent with respect to the right to a jury trial. The court noted the fact of the silent record alone would have been reversible error in light of Boykin v. Alabama (1969), 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274. That case resulted in the promulgation of Supreme Court Rule 402 which requires that the record show express admonitions by the trial court and express responses by the defendant with respect to the nature of the charge and the rights the defendant relinquishes by pleading guilty, including the right to a trial of any kind. (87 Ill.2d R. 402.) The Gaston court stated the defendant's written waiver was a sufficient expression of the defendant's desire to reject his right to be tried by a jury, but that the second essential requirement--an indication that the defendant's waiver was understandingly and voluntarily waived--was lacking due to the silent record.

The defendant in Rambo was 16 years old, was represented by counsel, and signed a written waiver. Although the record showed the court advised the defendant he had a right to a jury trial and asked him if he understood that right, the court never asked the defendant or his counsel if he wished to waive that right. Further, the Rambo court considered that the mere fact the defendant signed a printed jury waiver did not indicate he had read what he signed, or that he understood what he had signed.

The parties here agree, as they must, that Illinois law affords every person accused of an offense the right to a trial by jury unless that right is understandingly waived by the accused in open court. (Ill.Rev.Stat.1981, ch. 38, par. 103-6.) The State argues that the defendants, by permitting their attorney, in their presence and without objection, to waive their right to a jury trial, may be deemed to have acquiesced in, and to be bound by, his actions. In support, the State correctly cites People v. Sailor (1969), 43 Ill.2d 256, 253 N.E.2d 397, and People v. Murrell (1975), 60 Ill.2d 287, 326 N.E.2d 762.

The reasoning underlying such a result was commented on in Sailor, to-wit: "An accused ordinarily speaks and acts through his attorney, who stands in the role of agent * * *." (43 Ill.2d 256, 260, 253 N.E.2d 397.) The court also cited to an observation which was made in People v. Melero (1968), 99 Ill.App.2d 208, 211-212, 240 N.E.2d 756:

" 'The trial court was entitled to rely on the professional responsibility of defendant's attorney that when he informed the court that his client waived a jury, it was knowingly and understandingly consented to by his client. Defendant is not permitted to complain of an alleged error which was invited by his behavior and that of his attorney.' " 43 Ill.2d 256, 261, 253 N.E.2d 397.

The viability of the court's decision in Sailor was challenged--and ultimately reaffirmed--in People v. Murrell (1975), 60 Ill.2d 287, 326 N.E.2d 762. That court noted that it accepted the recommendation of the American Bar Association that the "preferred" procedure be that " '[t]he court should not accept a waiver unless the defendant, after being advised by the court of his right to trial by jury, personally waives his right to trial by jury, either in writing or in open court for the record.' " (People v. Murrell (1975), 60 Ill.2d 287, 291, 326 N.E.2d 762; ABA Standards, Trial by Jury, Standard 1.2(b) (1968).) Nevertheless, although the ABA procedure is preferred, the Murrell court found it is not constitutionally required, nor do any statutes or Supreme Court Rules require that it be followed. Notably, the Murrell court stated that its Rule 402 "only requires an affirmative showing on the record of a knowing and understanding waiver as to...