People v. Stewart

• Decision Date: 19 October 1984
• Docket Number: No. 56629,56629
• Citation: 473 N.E.2d 1227,104 Ill.2d 463,85 Ill.Dec. 422
• Parties: , 85 Ill.Dec. 422 The PEOPLE of the State of Illinois, Appellee, v. Raymond Lee STEWART, Appellant.
• Court: Illinois Supreme Court

Page 1227

473 N.E.2d 1227

104 Ill.2d 463, 85 Ill.Dec. 422

The PEOPLE of the State of Illinois, Appellee, v. Raymond Lee STEWART, Appellant.

No. 56629.

Supreme Court of Illinois.

Oct. 19, 1984.

Rehearing Denied Feb. 1, 1985.

Randy E. Blue, Deputy State Appellate Defender, Daniel M. Kirwan, David M. Raymond, Asst. State Appellate Defenders, Fifth Judicial Dist., Mount Vernon, for appellant.

Neil F. Hartigan, Atty. Gen., Mark L. Rotert, Kenneth A. Fedinets, Asst. Attys. Gen., Chicago, for appellee; Daniel D. Doyle, State's Atty., Winnebago County, Rockford, of counsel.

WARD, Justice:

The defendant, Raymond Lee Stewart, was indicted in the circuit court of Winnebago County, for the murder of Kevin Kaiser, a Rockford gas station attendant. The first count alleged that the defendant committed murder with intent to kill or do great bodily harm to the victim. (Ill.Rev.Stat.1981, ch. 38, par. 9-1(a)(1).) The second count alleged that the murder was committed during the course of the defendant's armed robbery of Kaiser at the gas station. (Ill.Rev.Stat.1981, ch. 38, par. 9-1(a)(3).) Following a jury trial, he was convicted of murder on both counts. A hearing in aggravation and mitigation was had before the same jury, and the defendant was sentenced to death. The defendant appealed directly to this court pursuant to our Rule 603 (87 Ill.2d R. 603).

The evidence showed that on the morning of January 28, 1981, the defendant shot Kevin Kaiser four or five times in the course of an armed robbery, killing him. The defendant does not challenge the sufficiency of the evidence to show that he killed Kaiser. A witness testified having seen a man who closely resembled the defendant at the scene of the murder. The witness identified a tan, three-quarter-length coat recovered from the defendant's Buick automobile as the one worn by the man he had seen at the gas station. Human blood stains and gunshot primer residue were found on both sleeves of the coat. The defendant admitted at trial that he had been staying, under a fictitious name, at a Rockford motel at the time of the murder. There was unchallenged testimony by a ballistics expert that Kaiser was killed by bullets fired from the gun later found in the defendant's suitcase. The defendant admitted that he had purchased the gun in July of 1980 but said that he had sold the gun a month later to Jimmy Jones, who lived in Rockford. He testified that he has bought the gun back from Jones on February 3, 1981.

A witness, however, who lived in Rockford for 14 years on the block where the defendant said Jones lived testified that he had never heard of Jimmy Jones. The defendant testified that he had not purchased any .38-caliber ammunition in December 1980, but a prosecution witness said that he had sold .38-caliber Smith & Wesson Special ammunition to the defendant on December 5, 1980.

The defendant's fingerprint was found on the door in the gas station where Kaiser was killed. The door had been washed the day before his murder.

Six days after Kaiser's murder the defendant rented a U-Haul trailer in Rockford and attached it to a black and maroon Mercury automobile with Wisconsin license No. SC-4801. The rental contract showed that the trailer was to be rented for one day. On February 6, 1981, the Mercury had broken down in De Kalb, and it, with the U-Haul trailer attached, was towed to a house in Sycamore. (It was later established that the defendant's brother-in-law lived in the house.) Within two days the trailer had been taken away as well as a red-and-white Buick that had been parked in the driveway. Later that month, the defendant arrived at the Greensboro, North Carolina, home of Florence Crosby, his first cousin, driving a red-and-white Buick with a U-Haul trailer attached.

On February 21, 1981, the defendant was arrested outside Crosby's apartment building as he was about to enter the Buick. The arresting officers had a Federal arrest warrant for unlawful flight to avoid prosecution. The basis for the Federal charge was that the defendant had fled from Illinois to avoid prosecution for an armed robbery committed by him in Rockford on November 24, 1980. Following the arrest, Leonard Bogaty, a special agent of the Federal Bureau of Investigation, had a conversation with Crosby and following that went to a bedroom of the apartment where he gathered and took items of property belonging to the defendant. The items, including a radio scanner and a large brown suitcase, were brought to the Greensboro police station. A warrant to search the property taken from the apartment was obtained from a United States magistrate later that day. Bogaty found a loaded .38-caliber revolver in a black leather holster inside the suitcase. A search was also made of the Buick under the same warrant. Special Agent Henry Phillip of the Federal Bureau of Investigation found in it, among other items, a three-quarter-length, tan coat and a copy of the U-Haul trailer-rental contract.

The next day Bogaty went to the residence of Charlie Benton, the defendant's uncle, in Whitsett, North Carolina, which is a short distance from Greensboro. Benton stated that a U-Haul trailer which was sitting in the front yard was placed there by the defendant. The trailer was towed to the Greensboro police station and was searched after a warrant had been obtained. Among the property found in the trailer was a box of .38-caliber ammunition, a plastic ammunition carrier, and the defendant's driver's license.

The defendant first contends that the circuit court erred in denying his pretrial motion to suppress the evidence seized under the authority of the two search warrants. He contends that the affidavits attached to the complaints for the warrants were insufficient to establish probable cause to believe that the items sought under the warrants would be found in the places to be searched.

The complaint for a warrant to search the defendant's Buick and luggage was supported by the affidavit of Special Agent Henry M. Phillips of the Federal Bureau of Investigation. The affidavit related that the defendant was suspected of committing six (sic ) homicides (actually seven homicides as later detailed in the affidavit) during the course of four armed robberies over a seven-day period in early 1981; that witnesses had identified the defendant as having been in the areas where the offenses were committed and that his Mercury automobile was seen at the site of one of the incidents; that the bullets removed from the six victims were fired from the same weapon and were either .38-caliber, .357-caliber, or 9-mm projectiles; that a Realistic police scanner and a multi-band scanner had been stolen during one of the armed robberies; that the defendant had fled from Illinois and had gone to North Carolina in a red-and-white Buick; that the defendant had been arrested at and his vehicle was located at an address described as Benton's home in Greensboro (actually Crosby's home); that a search of the home was conducted with consent and that a Realistic police scanner was found among the defendant's property in a bedroom; and that the defendant fit descriptions provided by witnesses of a suspect in the vicinity of the armed robberies. The complaint for a warrant to search the U-Haul trailer was supported by the affidavit of Special Agent Thomas J. Brereton of the Federal Bureau of Investigation and incorporated the Phillips affidavit by reference. The Brereton affidavit provided the following additional information: that the defendant rented a U-Haul trailer on February 4, 1981, in Rockford; that a relative of the defendant observed the trailer being towed by a Buick driven by the defendant in Greensboro; that Benton stated that the defendant left the trailer at his residence in Woodset (sic ) and that he, Benton, had observed the defendant's personal property inside the trailer; that the return of the trailer to the U-Haul Corporation was 16 days overdue; and that Benton authorized the Federal Bureau of Investigation to take possession of the trailer. A copy of the U-Haul rental contract was also attached to the Brereton affidavit.

In People v. Gacy (1984), 103 Ill.2d 1, 21, 82 Ill.Dec. 391, 468 N.E.2d 1171, we said:

"In reviewing the sufficiency of the complaint [for a search warrant] we are guided by the Supreme Court's statement in Spinelli v. United States (1969), 393 U.S. 410, 21 L.Ed.2d 637, 89 S.Ct. 584, 'that only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause, Beck v. Ohio [ (1964), 379 U.S. 89, 96, 85 S.Ct. 223, 228, 13 L.Ed.2d 142, 147-48]; that affidavits of probable cause are tested by much less rigorous standards than those governing the admissibility of evidence at trial. McCray v. Illinois [ (1967), 386 U.S. 300, 311, 87 S.Ct. 1056, 1062, 18 L.Ed.2d 62, 70]; that in judging probable cause issuing magistrates are not to be confined by niggardly limitations or by restrictions on the use of their common sense, United States v. Ventresca [ (1965), 380 U.S. 102, 108, 85 S.Ct. 741, 745, 13 L.Ed.2d 684, 688]; and that their determination of probable cause should be paid great deference by reviewing courts, Jones v. United States [ (1960), 362 U.S. 257, 270-71, 80 S.Ct. 725, 735-36, 4 L.Ed.2d 697, 708].' (393 U.S. 410, 419, 21 L.Ed.2d 637, 645, 89 S.Ct. 584, 590-91.)"

A showing of probable cause means that the facts and circumstances within the knowledge of the affiant are sufficient to warrant a person of reasonable caution to believe that an offense has occurred and that evidence of it is at the place to be searched. (People v. Free (1983), 94 Ill.2d 378, 400, 69 Ill.Dec. 1, 447 N.E.2d 218; People v. Francisco (1970), 44 Ill.2d 373, 376, 255 N.E.2d 413.) It is not contended that there was insufficient evidence to believe that several offenses had been committed. Instead the defendant argues that it was unreasonable to believe that evidence of the crimes...