People v. Wolski

• Citation: 403 N.E.2d 528,38 Ill.Dec. 297,83 Ill.App.3d 17
• Decision Date: 24 March 1980
• Docket Number: No. 78-306,78-306
• Court: United States Appellate Court of Illinois
• Parties: , 38 Ill.Dec. 297 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. David A. WOLSKI, Defendant-Appellant.

Page 528

403 N.E.2d 528

83 Ill.App.3d 17, 38 Ill.Dec. 297

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. David A. WOLSKI, Defendant-Appellant.

No. 78-306.

Appellate Court of Illinois, Second District.

March 24, 1980.

Rehearing Denied May 13, 1980.

As Corrected March 28, 1980.

Frederick F. Cohn, Julius Lucius Echeles, Chicago, for defendant-appellant.

Dallas C. Ingemunson, State's Atty., Yorkville, Phyllis J. Perko, Jan Tuckerman, State's Attys. Appellate Service Comm., Elgin, for plaintiff-appellee.

NASH, Justice:

After trial by jury defendant, David A. Wolski, was convicted of murder (Ill.Rev.Stat.1977, ch. 38, par. 9-1(a)(2)) and was thereafter sentenced to a term of 20 to 25 years imprisonment.

He brings this appeal asserting numerous grounds of error: (I) that the warrant for a search of his person, house and automobile was issued without probable cause and should have been quashed and the articles seized thereunder suppressed; (II) that his inculpatory statements to investigating officers should have been suppressed; (III) that the trial court erred in failing to instruct the jury on self-defense and on voluntary and involuntary manslaughter; (IV) that he lacked effective assistance of counsel; (V) that two prospective jurors should have been excused for cause; (VI) that testimony as to defendant's reputation, and (VII) the victim's alleged character trait for violence, was improperly excluded; (VIII) that his statement to the police was erroneously characterized as a confession in the instructions; and (IX) finally, that his conviction should be reduced to manslaughter or the sentence imposed for murder be reduced.

The body of Joy E. Lewis, age 14, was found on July 22, 1977, in underbrush approximately 60 feet from Hafenrichter Road on a farm in Kendall County. The body was not clothed below the waist and large quantities of blood were found within a radius of three to four feet from it; the girl had suffered multiple blows to the head, crushing her skull and causing death. A Master Charge sales slip dated July 21, 1977, in defendant's name and signed by him, was found about six feet from the body. The remaining evidence introduced at trial consisted substantially of clothing belonging to defendant, the purported murder weapon, inculpatory pre-trial statements attributed to defendant, and his own testimony in the course of trial.

Defendant's testimony in trial differed little from his pretrial statements to the investigating police officers. As given in evidence both disclosed that about 7 p. m. on July 21, 1977, defendant drove from his home in Naperville to pick up a television set from a friend's house. While en route he picked up a hitchhiker, subsequently determined to be the decedent, Joy E. Lewis, who asked to be driven to her brother's apartment in Aurora, and defendant agreed to do so. In Aurora, however, although defendant followed her directions they were unable to find the apartment. He stated that she giggled and talked continuously and that at one point she suddenly aimed her purse at him as if it contained a gun and instructed him to drive out on a country road. He complied, but after stopping the car he said he managed to grab the purse and discovered then that it did not contain a gun. In his statement to the investigating officers defendant said that he "made a pass at her", but in his testimony at trial he stated that it was the girl who suggested that they have sexual relations. This is the only essential difference between defendant's pre-trial and in-trial accounts of this incident.

Defendant stated that when he unzipped his trousers and turned to her a struggle began in which she struck him in the groin with her knee and tried to scratch his face; he said he hit her with his fist to stop the struggle and struck her head with a steel rod that had been laying on the floor of his car. She then fell limp and he removed her from the car; he was uncertain whether or not he hit her again outside the car with the steel bar. Defendant stated he threw her belongings, a purse, radio and camera, from the car and, although he noticed his Master Charge receipt had fallen to the ground, he drove away from the scene without retrieving it. Defendant told the investigating officers that he disposed of the steel bar by throwing it into a field away from the scene; it was subsequently recovered by police officers following his directions.

Defendant stated he then drove to a gas station where he washed blood from his hands, completed the errand to his friend's house and returned home. At home he changed his clothing and placed his bloodstained undershorts in a bathrobe pocket.

Based upon the complaint and affidavit of an investigating police officer a judge issued a warrant on July 22, 1977, for the search of defendant's person, home and automobile for evidence of the murder. Defendant was not at home when the officers first arrived for the purpose of executing the warrant but he came shortly thereafter in his automobile. The officers exhibited the search warrant to defendant, informed him that he was a suspect in a homicide case, advised him of his Miranda rights and proceeded to carry out the search as directed by the warrant. As a result of this search the officers seized defendant's bloodstained undershorts in the house and seized from his automobile samples of hair which were later determined to have the same characteristics as the decedent's hair.

Defendant thereafter gave a detailed statement relating his contact with the decedent.

I.

Defendant contends first that the warrant issued for the search of his person, house and automobile, failed to satisfy the requirements of the Federal and Illinois constitutions and section 108-3 of the Code of Criminal Procedure of 1963 (Ill.Rev.Stat.1977, ch. 38, par. 108-3). He asserts the search warrant should have been quashed as defective on these grounds:

A) that the complaint and affidavit for the search warrant did not establish probable cause;

B) that the complaint failed to list the items to be seized; and

C) that it contained unexplained handwritten additions.

A.

A complaint and affidavit for the issuance of a search warrant must be considered by the issuing judge and reviewing court in a common-sense, realistic fashion (People v. McGrain (1967), 38 Ill.2d 189, 230 N.E.2d 699), and great deference should be paid to the issuing judge's determination of probable cause (Spinelli v. United States (1969), 393 U.S. 410, 419, 89 S.Ct. 584, 590, 21 L.Ed.2d 637, 645. Our supreme court has held that the probable cause required for the issuance of a search warrant has two dimensions: first, facts must be related which would cause a reasonable man to believe a crime has been committed; second, facts must be set forth which would cause a reasonable man to believe that evidence of the crime is in the place to be searched. People v. George (1971), 49 Ill.2d 372, 274 N.E.2d 26; People v. Francisco (1970), 44 Ill.2d 373, 255 N.E.2d 413.

The complaint and affidavit in this case, signed under oath by one of the investigating police officers, alleged in relevant part:

"1. That on the 22nd day of July, the dead body of one Joy E. Lewis was discovered in a wooded area adjacent to Hafenrichter Road near the intersection of Hafenrichter Road and U.S. Route 34 in Kendall County.

2. That a 2 X 4 board with protruding nails was found near the body of Joy E. Lewis with blood thereon, which board apparently inflicted the mortal wounds.

3. That near the body was also a charge receipt from a Master Charge account of one David N. (sic) Wolski of 1321 Frederick Street, Naperville, IL bearing a date of July 21, 1977.

4. That Joy E. Lewis was last observed hitchhiking on Washington Street near Bailey Road in Naperville at 8:15 p. m. on July 21, 1977.

5. That the residence of David N. (sic) Wolski, 1321 Frederick Street is near the point of last observation of Joy E. Lewis and is approximately 1 to 11/2 miles therefrom."

We are satisfied, contrary to defendant's argument, that the complaint established probable cause. The first and second factual allegations establish the probability that a homicide had taken place. The third allegation would lead a reasonable person to believe evidence of the crime could be found in the places sought to be searched; the sales receipt, bearing so recent a date and found near the body, established the probability that defendant was linked to the offense so as to reasonably permit the search for which authorization was sought. See People v. Weinger (1978), 63 Ill.App.3d 171, 19 Ill.Dec. 938, 379 N.E.2d 810. Defendant also suggests the form of the complaint was defective in that it failed to specify the source of each fact alleged in it. This contention is waived on appeal as defendant failed to raise it at the hearing of his motions to quash the search warrant and suppress the evidence; nor was it preserved by the general averment in his post-trial motion that the complaint contained insufficient facts to establish probable cause. (People v. Pickett (1973), 54 Ill.2d 280, 296 N.E.2d 856; People v. Limas (1977), 45 Ill.App.3d 643, 4 Ill.Dec. 242, 359 N.E.2d 1194.) We note, moreover, that defendant has cited no relevant authority which supports his argument. (People v. Martin (1977), 46 Ill.App.3d 943, 5 Ill.Dec. 272, 361 N.E.2d 595 (probable cause for an arrest); People v. Vanco (1977), 55 Ill.App.3d 151, 13 Ill.Dec. 387, 371 N.E.2d 82 (affidavit devoid of factual allegations); People v. King (1973), 12 Ill.App.3d 355, 298 N.E.2d 715 (warrantless stop and search of automobile); and People v. Damon (1975), 32 Ill.App.3d 937, 337 N.E.2d 262 (stop and frisk, illegal arrest) are inapposite. The police officer's sworn representations of fact in the complaint were sufficiently definite so that, if false, perjury could be assigned (People v. Bak (1970), 45 Ill.2d 140, 258 N.E.2d 341; Franks v. Delaware (1978), 438...