People v. Pertz

• Citation: 242 Ill.App.3d 864,183 Ill.Dec. 77,610 N.E.2d 1321
• Decision Date: 26 March 1993
• Docket Number: No. 2-91-0945,2-91-0945
• Parties: , 183 Ill.Dec. 77 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Paul Thomas PERTZ, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1321

610 N.E.2d 1321

242 Ill.App.3d 864, 183 Ill.Dec. 77

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Paul Thomas PERTZ, Defendant-Appellant.

No. 2-91-0945.

Appellate Court of Illinois Second District.

March 26, 1993.

Dunlap & Brown, Ltd., Robert W. Brown, Jr., Laura L. Kerton, Libertyville, Patrick A. Tuite, argued, Law Offices of Patrick A. Tuite, Ltd., Chicago, for Paul Thomas Pertz.

Michael J. Waller, Lake County State's Atty., Waukegan, William L. Browers, Deputy Director, Cynthia N. Schneider, argued, State's Attorney Appellate Prosecutor, Elgin, for the People.

Justice UNVERZAGT delivered the opinion of the court:

Defendant, Paul Thomas Pertz, was charged by indictment with the offense of first degree murder (Ill.Rev.Stat.1989, ch. 38, pars. 9-1(a)(1), (a)(2)). The indictment charged defendant with causing the death of his wife, Jane Casey-Pertz, on October 12, 1990, by pushing her and striking her with a baseball bat with the intent to kill her and with the knowledge that such acts created a strong probability of death to her. Following trial, the jury returned a verdict of guilty. At a subsequent sentencing hearing the trial court sentenced defendant to 45 years' incarceration. This appeal ensued.

On appeal, defendant raises 14 issues: (1) that the trial court erred in denying defendant's motion to suppress his statement and quash his arrest; (2) that the trial court erred in denying defendant's motion to suppress evidence seized during several alleged consent searches; (3) that the trial court erred in denying defendant's motion to quash the search warrant; (4) that the trial court erred in limiting the cross-examination of the State's forensic pathologist and the direct examination of defendant's expert neurologist; (5) that the trial court erred in restricting the testimony of defendant's expert witness psychiatrist; (6) that the trial court erred in handling the State's motion in limine regarding the testimony of defendant's expert witness psychiatrist; (7) that comments by the prosecutor during rebuttal argument were highly prejudicial, depriving defendant of a fair trial; (8) that the trial court abused its discretion in allowing certain photographs to be published to the jury and to be considered by the jury during its deliberations; (9) that the trial court erred in allowing the State to question the defendant's expert psychiatrist about the amount of his fee; (10) that the trial court erred in giving the State's instruction No. 8, defining "knowledge," and instruction No. 11, pertaining to the completion of the verdict forms; (11) that the State failed to prove defendant guilty beyond a reasonable doubt of first degree murder; (12) that defendant's sentence of 45 years was excessive; (13) that defendant was denied a fair sentencing hearing; and (14) that defendant was denied due process by the State's systematic exclusion of males from the jury.

Defendant filed a series of pretrial motions, including motions to challenge the voluntariness of his confession and the legality of his arrest, motions challenging the legality of searches made pursuant to consent, motions to quash a search warrant, and motions to suppress. A hearing was held on April 1, 1991, on defendant's motion to suppress statements, motion to suppress consent searches, and a motion to suppress evidence. At that hearing Ronald Fry, a lieutenant with the Libertyville police department, testified that on October 13, 1990, he was advised to look into a missing person's report filed by defendant. He telephoned defendant, who asked him to come to his residence. Fry stated that he had known defendant in the past when defendant "rode with" an officer who had been in the department. When Fry arrived at defendant's residence, he observed that defendant appeared nervous but otherwise neat and normal. He was not under the influence of alcohol or drugs. Fry took information and filled out a missing person's form, which defendant signed.

On October 14 at 11 a.m., defendant asked Fry to return to defendant's residence to straighten out a misunderstanding as to the shoes defendant's wife had been wearing when she disappeared. Fry went with Detective James Schlesser in an unmarked vehicle that did not separate the backseat or lock to prevent the backseat passenger from exiting. Defendant was dressed casually, demonstrated a normal demeanor, and was not under the influence of alcohol or drugs. Defendant invited the officers into the residence, where two other people (the Stebers) were already present. Defendant asked the officers to go upstairs to check clothing and shoes in the master bedroom closet. Fry told defendant that he would first like defendant to sign a form consenting to the search. Defendant asked why he had to sign when he had asked the officers to come to his home. After Fry explained the nature of the form, the reason for the consent to search, and told defendant that he did not have to sign it, defendant signed the form. The officers proceeded with defendant to the upstairs bedroom. From there they went into each room in the house and into the garage. Defendant never indicated he did not want the officers to enter the other rooms, and he was very cooperative.

At approximately 3:15 p.m. that same day, Fry asked defendant if he would mind coming to the police station. Because there was so much activity at the house, the officer wanted to straighten out some contradictions in defendant's report in a place affording a little more privacy. Fry recalled that defendant appeared nervous but did not seem tired and was not under the influence of alcohol or drugs. Defendant rode to the police station in the front seat of the squad car on the passenger's side. He was not handcuffed or touched, nor was he under arrest. Fry said that had defendant been arrested, he would have been handcuffed, transported in the backseat of the squad car, and taken to a garage area within the station. Fry parked the squad car outside the station. At no time was defendant patted down for weapons.

To enter the police station, Fry had to use a key or be buzzed into the department. Fry took defendant to a conference room; he did not take him to the booking room. Fry stated that there was a door next to the conference room that exited to the outside and that it was not locked. Fry explained to defendant that Fry wanted to go over the case report with him from start to finish. He then left defendant to get some papers. According to Fry, he never locked the door to the room.

Fry returned to the conference room with Detective Charles Bell. Defendant appeared fine and normal and was not emotional or crying. The officer sat down and talked to defendant for half an hour to 45 minutes. Fry recounted that defendant was occasionally a little emotional but otherwise seemed fine and very cooperative. The officers went through the entire report with defendant and noted several discrepancies. The officers then excused themselves to get some coffee. Defendant was left alone in the room for about 10 minutes. The officers did not lock the room, and the defendant was not in handcuffs.

Fry said that the officers returned and closed but did not lock the door. They informed defendant that the car defendant had reported missing had been located and that a female body had been found in the trunk. They read defendant his Miranda rights at that time. When Fry asked whether defendant understood the rights, defendant responded affirmatively. Defendant signed the Miranda form when requested. Fry stated that, either at that time or after his rights were read, defendant asked the officers whether he was under arrest, and the officers replied negatively. According to Fry, defendant did not invoke his right to remain silent, refuse to answer questions, or request an attorney. The officers did not promise him anything or coerce him. At one point, defendant asked whether he should get an attorney, and Fry responded that it was defendant's decision. Fry recounted that defendant said nothing more about an attorney and continued answering questions.

The officers asked defendant to look at a picture of the body found in the trunk for purposes of identification. Defendant identified the body as his wife; he became distraught and began sobbing.

Fry said that he remained in the conference room only 10 minutes and then left defendant with Detective Bell. Fry returned over one hour later after defendant had confessed. Defendant agreed to show the officers where he had disposed of some of the evidence. The officers used the same squad car with no barricade that Fry had used earlier to transport defendant. Defendant was not handcuffed and the officers did not hold him as he walked to the car. Also, the car door was not locked. Fry recalled that defendant was cooperative and directed the officers to various locations where he had disposed of the evidence. After they returned to the station, defendant was asked for consent to search his truck. Defendant said that that was no problem and signed the consent form.

On cross-examination, Fry stated that the missing car had been found at approximately 5:30 a.m. and that he had learned of this when he arrived at the station at 6:30 a.m. Fry understood that a search warrant for the car was being prepared and that it was issued at 9 a.m. Fry was present when the car was searched at 9:20 a.m. He was not certain of the identity of the body.

With reference to the form giving consent to search defendant's house, Fry stated that he had filled out the entire form before asking defendant to sign it and that he told defendant that he did not have to sign it. After finding spots on the garage floor, Fry called for an evidence technician. Five to six officers eventually arrived at the house. Fry stated that he offered to drive defendant to the station in the squad car but would have allowed defendant to take his own car if he...