People v. Schlemm

• Decision Date: 20 March 1980
• Docket Number: No. 15440,15440
• Citation: 37 Ill.Dec. 808,82 Ill.App.3d 639,402 N.E.2d 810
• Parties: , 37 Ill.Dec. 808 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Jimmie Lee SCHLEMM, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 810

402 N.E.2d 810

82 Ill.App.3d 639, 37 Ill.Dec. 808

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Jimmie Lee SCHLEMM, Defendant-Appellant.

No. 15440.

Appellate Court of Illinois, Fourth District.

March 20, 1980.

Richard J. Wilson, Deputy State Appellate Defender, Jeff Justice, Jeffrey D. Foust, Asst. State Appellate Defenders, Springfield, for defendant-appellant.

Nolan Lipsky, State's Atty., Petersburg, Marc D. Towler, Deputy Director, State's Attys. Appellate Service Commission, Gary J. Anderson, Staff Atty., Springfield, for plaintiff-appellee.

GREEN, Justice:

Defendant, Jimmie Lee Schlemm, was convicted by the circuit court of Menard County of two counts of murder and two counts of concealment of homicide. Defendant was sentenced to 38 years for each murder and 10 years for each concealment, with all sentences running consecutively. On appeal he asserts error in the trial court's (1) refusal to suppress evidence seized during various searches; (2) admission of evidence previously ordered suppressed; (3) imposition of consecutive sentences; and (4) imposition of extended terms of imprisonment for the two convictions of concealment of a homicide.

Charges against defendant for the murders and concealment of the homicidal deaths of Eugene Ferry and John Teeter were filed on June 5 and 8, 1978, respectively. A jury trial concerning all of the charges began on November 20, 1978. There evidence was presented that the two men had been missing from March 20, 1978, until their bodies were found tied to bricks at the bottom of the Sangamon River. Ferry's body was found on April 9, 1978, but Teeter's was not discovered until June 6, 1978.

Proof of defendant's guilt was all circumstantial. A law enforcement officer testified at trial that on April 11, 1978, he searched a trailer where defendant had been living and found: (1) bullet holes in the trailer; (2) blood stains and human hair on the floor, both later shown to be similar to that of Teeter; and (3) possessions later shown to have belonged to Ferry. He also identified microphones and microphone cords as having been found in the trailer. These cords resembled those tying Ferry's body in the river. A police technician testified that a cord found on that body was able to make an electrical connection to one of the microphones only because solder had been placed on the plug. The technician also stated that the socket on the microphone showed tool marks corresponding to the tool used to modify the plug on the cord but could not positively state that the same tool left both impressions. Evidence was also presented that many of the victims' personal effects and clothing were found in the search of the house of an aunt of defendant, where defendant had been staying.

In addition to the evidence found in the searches, several other pieces of evidence linked defendant to the murders. Defendant's own testimony, as well as the testimony of other witnesses, indicated that defendant: (1) drove Teeter's rented car from Springfield to Jacksonville, Illinois, and abandoned it there the morning after Teeter and Ferry disappeared (although an attempt had been made to sponge down the car, it still had a putrid odor and was found to contain human blood and hair specimens); (2) had fired his gun on the bloodstained Cascade Bridge which was located near the place where the bodies were found; and (3) had given his attorney a tooth belonging to Teeter which his attorney in turn gave to police officers.

In his testimony, defendant stated that (1) shells from his gun were found on the Cascade Bridge merely because he had done some target shooting there; (2) he did not know how Teeter's tooth got in his trailer; (3) the bullet holes in his home were the result of an accidental misfire; (4) he was merely storing the personal effects of Teeter and Ferry as they had asked him to do; and (5) he had attempted to get rid of the car only because an individual named "D. C." had paid him to do so. Witnesses who had been stated by defendant to be friends of "D. C." denied knowing anyone having that name.

Defendant's first claim of error arises from the court's denial in part of his pretrial motion to suppress the evidence seized in searches of the trailer and the house of defendant's aunt.

At the suppression hearing, evidence was presented that after Ferry's body was found police officers were informed by a person they believed to be Ferry's mistress that: (1) she had last seen Ferry and Teeter on March 19, 1978, when they purported to be headed for a meeting with defendant; and (2) she spoke with Ferry on the telephone on March 20, 1978, and he said he had spent the night with defendant. With this information the officers on April 11, 1978, contacted the landlord of defendant's trailer. The landlord testified to the following sequence of events. Defendant who had been in arrears on rent called him on April 10 and said that he, defendant, was moving out that night and would send the landlord the key. The landlord then placed a newspaper advertisement listing the trailer as being for rent. On April 11, the officers requested permission to search the trailer. Upon the landlord's explanation of the situation, the officers told him that he had authority to authorize their entry so he did. The tenant had not returned the key but the landlord stated that it was not unusual for departing tenants to fail to do this. As the landlord's key had been given to a repairman, he broke a window and they entered the trailer. Upon entering they were surprised to find that it appeared to be substantially furnished. After a brief view of the interior, the officers stated that they should get a warrant and they all left the trailer. Defendant testified, admitting telling the landlord that he was moving out but said that he told the landlord he would do so at the end of the month.

A warrant was later obtained and evidence was seized. The trial court suppressed items seized which were not listed in the warrant but refused to suppress those which were so listed. Defendant maintains that all evidence should have been suppressed because the affidavit for the search warrant was insufficient and because, in any event, the search was the fruit of an entry in violation of defendant's fourth amendment rights. We dispose of the first contention summarily. The complaint for the warrant was based upon an officer's statement of seeing bullet holes in the trailer and blood on the floor. Defendant argues that a showing would have to be made that the officer was a ballistics expert for him to identify the holes as bullet holes, citing People v. Fiorita (1930), 339 Ill. 78, 170 N.E. 690, where it was held that a non-ballistics expert police officer could not make ballistic comparisons at trial. Here, the issue was probable cause and an ordinary police officer could properly conclude that the holes were made by bullets. The complaint showed probable cause.

The question of the propriety of the officers' original entry into the trailer and the short search they then conducted presents a more complicated problem. It is well established that during the pendency of a lease a landlord cannot consent to a search of the leased premises, and that apparent authority alone is insufficient for a third party to consent to a warrantless search. (Chapman v. United States (1961), 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828; People v. Bankhead (1963), 27 Ill.2d 18, 187 N.E.2d 705; People v. Miller (1968), 40 Ill.2d 154, 238 N.E.2d 407.) But despite this general rule a "common authority doctrine" has emerged, which may be viewed as an exception to the general rule. In United States v. Matlock (1974), 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242, it was held that a woman who shared a bedroom with defendant could consent to a search which resulted in the seizure of stolen bank money. The court stated, "(W)hen the prosecution seeks to justify a warrantless search by proof of voluntary consent, it is not limited to proof that consent was given by the defendant, but may show that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected." (415 U.S. 164, 171, 94 S.Ct. 988, 993, 39 L.Ed.2d 242, 249-50.) The United States Supreme Court went on to explain "common authority" in a footnote where it stated:

"Common authority is, of course, not to be implied from the mere property interest a third party has in the property. The authority which justifies the third-party consent does not rest upon the law of property, with its attendant historical and legal refinements, * * * but rests rather on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched." 415 U.S. 164, 171, n. 7, 94 S.Ct. 988, 993, n. 7, 39 L.Ed.2d 242, 250, n. 7. Accord, People v. Stacey (1974), 58 Ill.2d 83, 317 N.E.2d 24 (holding a wife could consent to such a search).

As this court has recognized, the common authority must be based upon a genuine understanding between the parties, rather than contrived solely from property notions. In People v. Baumann (1977), 47 Ill.App.3d 209, 5 Ill.Dec. 621, 361 N.E.2d 1149, this court held the State did not have power to consent to a search of the home which the State bought in anticipation of highway construction, since after the sale the former owners of the house were permitted to remain in the house temporarily by an oral understanding which did not contemplate that the parties would share in any degree of common authority.

In the case on appeal, the issue is whether the trial court could properly have found that defendant conferred...