Petition — Wolski v. Illinois

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ie Supreme Court, U.S,

; FILED

80-863 NOV 28 1980

No.

In THE

Supreme Court of the Gnited States

Ocroser Trerm, 1980

DAVID A. WOLSKI,

Petitioner,

VS.

PEOPLE OF THE STATE OF ILLINOIS,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

APPELLATE COURT OF ILLINOIS,

SECOND DISTRICT

FREDERICK F. COHN

JOEL KERSTETTER

35 East Wacker Drive

Chicago, Illinois 60601

(312) 641-0692

Attorneys for Petttioner

Midwest Law Printing Co., Chicago 60601, Financial 6-3988

QUESTIONS PRESENTED FOR REVIEW

1. Where the sole evidence allegedly connecting

petitioner to a dead body found in the woods was a

credit card receipt from petitioner’s account, is a police

officer’s statement in the affidavit to support the search

warrant, that such receipt was found “near” the body, a

statement of “fact”, as distinct from a “conclusion”, which

permits the magistrate to make an independent deter-

mination of probable cause?

2. Where crucial to the finding of probable cause is

an allegation that deceased was last observed hitch-

hiking on the same date as that borne on the credit card

receipt, does the Fourth Amendment require that the

affiant state who observed deceased hitchhiking and

how that person knew it was deceased?

3. Was a statement in an affidavit for a search

warrant that an item was found near the body, an affir-

mative misrepresentation where the affiant knew it was

six feet from the body, on a path, commonly used by

others?

4. Was there probable cause to search petitioner’s

house, where a credit card slip signed by him on the

same date deceased was seen hitchhiking in the vicinity

was found six feet from deceased on a path commonly

used by the public?

5. Was there probable cause to search petitioner’s

house on the basis that he committed an offense, where

the prosecution admits that there was not “any evidence

to support defendant’s arrest” and the search was

necessary because “investigation had not eliminated

defendant from suspicion and no further information

could be obtained except by confrontation with defen-

dant in some way.”?

6. Where the State admits there is not probable

cause for petitioner’s arrest, is the seizure of petitioner

outside his house and bringing him into his house for in-

terrogation while the police conduct a search of the

house pursuant to a warrant, an illegal arrest, causing

statements obtained during the period of interrogation

to be obtained in violation of the United States Con-

stitution?

7. Was petitioner’s right to a jury trial and due

process violated, where the trial court refused to in-

struct on the defense of self-defense because he personal-

ly had determined that petitioner’s belief that he acted

in self-defense was unreasonable?

8. Does the Illinois “farce or sham” standard applied

by the State reviewing court in evaluating petitioner’s

representation by private counsel, violate the Sixth

Amendment to the United States Constitution and the

Fourteenth Amendment right to equal protection of the

laws, where a different standard is applied to represen-

tation by court-appointed counsel?

9. Did the failure of retained counsel to sufficiently

prepare so as to know the law on crucial issues result in

denial of effective assistance of counsel?

ili

TABLE OF CONTENTS ©

PAGE

QUESTIONS PRESENTED FOR REVIEW .............. i

TABLE OF AUTHORITIES v

JUDGMENTS AND OPINION BELOW ...................... 2

JURISDICTIONAL STATEMENT 2

CONSTITUTIONAL PROVISIONS AND STAT-

UTES INVOLVED

STATEMENT OF THE CASE oo... ececcccecceees

Unconstitutional Search Of Defendant’s Home ....

Illegal Arrest Of Defendant

Failure To Properly Instruct Jury

Ineffective Assistance Of Counsel 10

REASONS FOR GRANTING THE WRIT:

The affidavit in support of the warrant failed to

satisfy the Fourth Amendment because (a) the

description of the relationship of a credit card

receipt to deceased’s body—the sole evidence link-

ing the defendant to the offense—as ‘‘near’’ the

body, is not a fact but a conclusion that does not

permit the magistrate to make an independent de-

termination of probable cause; (b) there is no

description by the affiant of the source of infor-

mation concerning deceased’s presence hitchhiking

on the date of the credit card receipt, preventing

the magistrate from making any determination of

the reliability of that information; and (c) all the

evidence presented in the affidavit demonstrated

onan ow

merely that a credit card receipt bearing the same

date deceased was last seen in the vicinity was

found in proximity to the body—evidence which

the State admits would not support the ‘‘arrest

of the defendant’’—does not rise to the level of

probable cause to search the defendant’s home be-

cause, as asserted by the State, ‘‘the investiga-

tion had not eliminated defendant from suspicion

and no further information could be obtained ex-

cept by confrontation with the defendant in some

way

The affidavit for the warrant affirmatively mis-

states facts and is invalid under Franks v. Dela-

ware, 438 U.S. 154 (1978) ...----c-seceenecececeesnsnessnenensenes

Where there is not evidence sufficient to sup-

port defendant’s arrest, seizing the defendant out-

side his house and bringing him into his house

and interrogating him, is an arrest and cannot be

justified ‘‘so as to prevent the defendant from

interfering with the search within the house’’;

and a statement obtained during the illegal ar-

rest must be sUPPTessed .........------c-ceesee-seeeneesneeereenerees

The right to jury trial and due process is denied

where the trial court refuses to instruct the jury

on an affirmative defense, i.e., self-defense, because

he personally evaluates defendant’s testimony that

he acted in self-defense as being unreasonable ......

The Illinois Courts’ application of the ‘‘farce

or sham”? standard in evaluating the quality of

petitioner’s representation abridged petitioner’s

Fourteenth Amendment rights to the effective as-

sistance of counsel and equal protection of the

laws basin

The ‘‘farce or sham’’ test is not a constitu-

tionally permissible standard for review of

ineffective assistance of counsel claims 23

Petitioner was deprived of the equal protec-

tion of the laws because the quality of his rep-

resentation by retained counsel was evaluated

by the ‘‘farce or sham’ standard, while the

quality of representation by appointed counsel

is evaluated according to a different, higher

standard 25

CONCLUSION jebeincadieinonsatebh 27

TABLE OF AUTHORITIES

Cases

Aguilar v. Texas, 378 U.S. 108 (1964) 00... 12, 16

Beck v. Alabama, ...... US. ....... 65 L.Ed.2d 392 (1980)

22, 23

Beck v. Ohio, 379 U.S. 89 (1964 12, 16

Brinegar v. U.S., 338 U.S. 160 (1949) 12, 16

Brown v. Illinois, 422 U.S. 590 (1975 19, 20

Chimel v. California, 395 U.S. 752 ( eee 20

Coolidge v. New Hampshire, 403 U.S. 443 CREED cincticen 17

Cuyler v. Sullivan, 100 S.Ct. 1708 re 26

Dunaway v. N.Y., 442 U.S. 200 (1979) 19, 20

Franks v. Delaware, 438 U.S. 154 (1978) .. 18

Giordenello v. U.S., 357 U.S. 480 ( 1958) . 12, 16

Grosso v. U.S., 390 U.S. 62 (1968) .......... 18

McCreary v. Sigler, 406 F.2d 1264 (9th Cir. 1969) ....... 15

McMann v. Richardson, 397 U.S. 759 en 24

Mincy v. Arizona, 437 U.S. 385 Ne 17

Payton v. N.Y., 100 S.Ct. 1371 (1980) 17

People v. Bach, 45 Tll.2d 140 (1970) 18

People v. Damon, 32 Ill.App.3d 987, 337 N.E.2d 262

(1975) 15

People v. Hester, 39 Ill.2d 489, 237 N.E.2d 466 (1968). 27

People v. Hainline, 77 Ill.App.3d 30, 395 N.E.2d 1224

(1979) 26

People v. Ibarra, 60 Cal.2d 460, 386 P.2d 487 (1963) .... 26

People v. King, 12 Ill.App.3d 355, 298 N.E.2d 715 (1973) 15

People v. Martin, 46 Ill.App.3d 9438, 361 N.E.2d 595

(1977) 15

People v. Morris, 3 Il].2d 437, 121 N.E.2d 810 (1954) .. 25

People v. Murphy, 72 Tll.2d 421, 381 N.E.2d 677 (1978) 26

People v. Ramey, Cal. Sup. Ct. 545 P.2d 1333, 16 Cal.

3d 263 (1976) : 15

People v. Slago, 58 Ill.App.3d 1009, 374 N.E.2d 1270

| Seas al 27

People v. Vanco, 55 Ill.App.3d 151, 371 N.E.2d 82

4. 3 ; 15

People v. Wolski, 83 Ill.App.3d 17, 403 N.E.2d 528

TED aiclaschoinions ee 2

Plazda v. U.S., 291 F.2d 56 (9th Cir. 1961) .................... 18

Sibron v. N.Y., 392 U.S. 40 (1968) ............. ; 16

Spinelli v. N.Y., 394 U.S. 410 (1969) ..... 16

Stevenson v. United States, 162 U.S. 314 (1896) ........ 22, 23

Terry v. Ohio, 392 U.S. 1 (1977) .... 17

U.S. v. Chadwick, 443 U.S. 1 (1977) .............:seecsscssceeeeoees 17

Vale v. Louisiana, 399 U.S. 30 (1970) 20

Wolf v. Briton, 509 F.2d 304 (8th Cir. 1975) .................. 26

Zemina v. Solom, 573 F.2d 1027 (8th Cir. 1978) ............ 22

Constitutional Provisions and Statutes

Fourth Amendment, United States Constitution ............ 3

Fifth Amendment, United States Constitution .............. 3

Sixth Amendment, United States Constitution .............. 3

Fourteenth Amendment, United States Constitution... 3

Tilinois Revised Statutes, Chap. 38, Sec. 7-1 .................-.- 4

Tllinois Revised Statutes, Chap. 38, Sec. 9-2 ............ 3, 21, 26

In Tue

Supreme Court of the United States

Ocroser Tzrm, 1980

DAVID A. WOLSKI,

Petitioner,

VB.

PEOPLE OF THE STATE OF ILLINOIS,

Respondent.

——="lIclooooooooooooooNooooo——

PETITION FOR A WRIT OF CERTIORARI TO THE

APPELLATE COURT OF ILLINOIS,

SECOND DISTRICT

Petitioner, David A. Wolski, (hereafter, defendant)

respectfully prays that a Writ of Certiorari be issued to

the Appellate Court of Illinois, Second District, to

review its decision affirming his conviction for murder,

as adjudged by the Circuit Court of Kendall County, I)-

linois.

JUDGMENTS AND OPINION BELOW

The opinion of the Appellate Court of which we seek

review by Certiorari is reported, People v. Wolski, 83 Ill.

App.3d 17, 38 Ill.Dec. 297, 403 N.E.2d 528 (2 Dist.) (set

forth as Appendix A hereto).

JURISDICTIONAL STATEMENT

———

On March 24, 1980, the Appellate Court of Illinois,

Second District, entered its judgment affirming peti-

tioner’s conviction and sentence. (App. A) A petition

for leave to appeal to the Illinois Supreme Court, timely

filed, was denied on September 29, 1980, No. 53538.

(App. B) This Petition is filed within the time allowed.

Jurisdiction of this Court is invoked under 28 U.S.C.

1257(3) and Rule 20.1 of this Court.

—

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

The Fourth Amendment to the United States Con-

stitution provides, in part:

“The right of the people to be secure in their per-

sons, houses, papers, and effects, against un-

reasonable searches and seizures, shall not be

violated, and no Warrants shall issue, but upon

probable cause, supported by Oath or affirmation,

The Fifth Amendment to the United States Constitu-

tion provides, in part:

“No By shall ... be compelled in any

criminal case to be a witness against himself, nor

be deprived of life, liberty, or property, without due

process of law;... ”

The Sixth Amendment to the United States Constitu-

tion provides, in part:

“In all criminal prosecutions, the accused shall

enjoy the right ... to have the Assistance of

Counsel for his defence.”

The Fourteenth Amendment to the United States Con-

stitution provides, in part:

“. ». nor shall any State deprive any person of

life, liberty, or property, without due process of law:

nor deny to any person within its jurisdiction the

equal protection of the laws.”

Illinois Revised Statutes, Chap. 38, Sec. 9-2, provides:

“Voluntary Manslaughter

“(a) A person who kills an individual without

lawful justification commits voluntary manslaughter

a a

if at the time of the killing he is acting under a sud-

den and intense passion resulting from serious

provocation by:

(1) The individual killed, or

(2) Another whom the offender endeavors to

kill, but he negligently or accidentally causes

the death of the individual killed.

Serious provocation is conduct sufficient to excite

an intense passion in a reasonable person.

(b) A person who intentionally or knowingly

kills an individual commits voluntary manslaughter

if at the time of the killing he believes the cir-

cumstances to be such that, if they existed, would

justify or exonerate the killing under the principles

stated in Article 7 of this Code, but his belief is un-

reasonable.”

Illinois Revised Statutes, Chap. 38, Sec. 7-1, provides:

“Use of Force in Defense of Person

A person is justified in the use of force against

another when and to the extent that he reasonably

believes that such conduct is necessary to defend

himself or another against such other’s imminent

use of unlawful force. However, he is justified in

the use of force which is intended or likely to cause

death or great bodily harm only if he reasonably

believes that such force is necessary to prevent im-

minent death or great bodily harm to himself or

another, or the commission of a forcible felony.”

STATEMENT OF THE CASE

To the extent that the Appellate Court’s Opinion (App.

A) contains material to meet the requirements of Rule

21.1(g), such is here incorporated by reference to avoid

unnecessary duplication.

The specific facts pertaining to the Points which

follow, including the raising of the federal questions

below per Rule 21.1(h), are as follows:

Unconstitutional Search Of Defendant’s Home.

On the morning of July 22, 1977, Joy E. Lewis was

found dead in some bushes about 15 feet from a lane

which was 60 feet from Hafenrichter Road. Late in the

evening of July 22, 1977, police officers pulled up behind

defendant’s car as defendant drove into the driveway of

his house (Tr. H. 20)! with his wife. With guns drawn,

(Tr. H. 111), police officers placed defendant against his

car (Tr. H. 88-89) and searched him, (Tr. H. 89) took

him into his house, caused him to remain seated, and in-

terrogated him while they searched his house. Defen-

dant “would not have been allowed to leave. . .” (Tr. H.

73-74) His car was transported to the Naperville Police

Garage, dismantled and submitted to scientific tests.

The police had a search warrant that commanded

that:

“The person of David N. Wolski and/or Residence

at 1321 Frederick St., Naperville, IL 1976 Mercury

\ Ir. H.” refers to Transcript of Proceedings at Motion to

Suppress; “Tr.” to Transcript of proceedings at Trial; “C.” to

the Common Law Record; “SC.” to Supp! emental Common

Law Record; “App.” refers to Appendix to this petition.

2-Door Vin #6Z64S570032 Recent model Ford LTD

4-door IL 1977 regist. #238154 be searched and the

following instrument, articles and things which

have been used in the commission of, or which con-

stitute evidence of the offense of murder be seized

therefrom: blood, articles of clothing with blood or

male or female secretions thereon, jewelry and

other personal items formerly in possession of Joy

E. Lewis, hair from the head of Joy E. Lewis, dirt,

grass or other materials or things from the area

where the body of Joy E. Lewis was found.”

The search warrant was based upon an affidavit by Of-

ficer Michael Alsup. The complaint for search warrant

reads:

“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 in-

tersection 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.

38. That near the body was also a charge receipt

from a Master Charge account of one David N.

Wolski of 1321 Frederick Street, Naperville, IL

bearing a date of July 21.

4. “hat Joy E. Lewis was last observed hitchhiking

on Washington Street near Bailey Road in Naper-

ville at 8:15 p.m. on July 21, 1977.

5. That the residence of David N. Wolski, 1321

Frederick Street is near the point of last observa-

tion of Joy E. Lewis and is approximately 1 to 1%

miles therefrom.

6. That several homes near 1321 Frederick Street

are under construction and miscellaneous lumber

is scattered thereabout.

~~ a

7. That the aforesaid David N. Wolski is the

registered owner of a 1976 Mercury 2-door VIN

#686455/0032.

8. That many items found at the scene of the crime

which may contain fingerprints of the person

causing the death of Joy E. Lewis.

9. That a recent model Ford LTD 4-door, Illinois

registration #238154, has been located for a

period of time prior to the execution of this Af-

fidavit in the immediate area of 1321 Frederick

St., Naperville, IL and is believed that said vehi-

cle was recently acquired by David N. Wolski.

The dead body was nude from the waist down

and appeared to be sexually molested.” (SC. 16)

Testimony demonstrated that the body was found in

bushes and the receipt described in the warrant was

found on a path six feet from the body. (Tr. 339, 354,

373, 582)

Prior to trial, defendant moved to quash the warrant,

asserting:

“The . . . complaint for search warrant contained

insufficient facts to find probable cause . . .” (SC. 1, 3)

The trial court denied the motion, stating the warrant

was based on sufficient facts. (SC. 30) The error was

preserved in the motion for new trial. (SC. 37) The con-

stitutional insufficiency of the affidavit in support of the

search warrant was raised in the Appellate Court which

considered the affidavit to be sufficient (App. fa-7a) and

raised on petition for leave to appeal.

Illegal Arrest Of Defendant

Defendant at 12:30 a.m. drives into his driveway, a

car drives in behind him, blocking his car, (Tr. H. 20);

police officers with drawn guns place him against the

car and search him; (Tr. 89) he is made to put his hands

on the hood of the car; (Tr. 20) he is read Miranda-type

warnings; (Tr. H. 21, 72-73) and not allowed to leave,

(Tr. H. 14, 73-74) and moved to inside his house and

ordered him to sit in a secured area of the living room,

(Tr. H. 74-77) where he is interrogated (Tr. H. 74-78);

and after 45 minutes, he makes a statement.

In the Appellate Court, defendant argued that the

trial court erroneously denied his pre-trial motion to

suppress his statement obtained in violation of the

Fourth and Fifth Amendments. The Appellate Court

held defendant’s seizure was not an arrest, and hence,

that the statements were not obtained in violation of the

Fourth Amendment. (App. 9a-10a) That defendant’s

statement was obtained in violation of the Fourth

Amendment was raised in his petition for leave to appeal.

Failure To Properly Instruct Jury

In his statements (Tr. 539-580), defendant related how

he had picked up the victim as she was hitchhiking, how

she directed him to a side road and, while parked, an

altercation occurred; that after being kicked twice in the

groin, he grabbed a piece of metal and hit her once in

the head and placed her out of the car. (Tr. 543)

At trial, defendant testified in further detail concern-

ing the incident. He testified how she initially pretend-

ed she had a gun in her purse and threatened him, and

as he got out of the car, he grabbed her purse and she

had no weapon (Tr. 741-743); that she then agreed to

have sex, but when he got on top of her, she attacked

him. (Tr. 746, 789, 818-819, 828-829)

He testified:

“She kicked me hard in the groin.

Q. And, did she say anything to you prior to

kicking you in the groin?

A. No, after she did that she said that because

she knew my name and she saw there was a baby

carriage in your back seat, which she said that she

was going to tell my wife, and she was struggling to

get up off the seat to sit up, aud she was again try-

ing to kick me, and she was using her hands to

scrape my face and punch me, and at that point she

again, she was able to kick me or knee me in the

groin again, and—

Q. Dave, did that first kick she kicked you with

before she said anything, did that hurt you?

A. Yes, I was in a lot of pain.

Q. Did the second kick hurt you?

A. Yes.” (Emphasis added.)

He testified further that after twice being kicked in

the groin he hit her with his left fist on the face, (Tr.

746-747) “. . . she fell back on the seat and then con-

tinued to struggle and attempt to kick me (Tr. 747) and

there was a piece of steel . . . on the floor, and I picked

it up and hit her with it at that time.” (Tr. 474)

The trial judge refused to give a self-defense instruc-

tion because he believed defendant’s actions were un-

reasonable self-defense, even though defendant testified

that he acted in self-defense. The trial court stated:

“The Court: Despite what the defendant may have

testified to he believed, I don’t agree there is anything

in the record insofar as the facts are concerned

reasonably justify anybody feeling their life was in

danger of great bodily harm. Here was a bulky man

weighing 265, and she weighed 120, and all he

received was a couple of kicks in the groin, and un-

der all those circumstances and other circumstances

alluded to by the State’s Attorney, I don’t think

—19—

there is any legitimate question of fact on that to

present to the jury, so I am sustaining the objec-

tions to the giving of that instruction. Again, it is

what a reasonable person would believe under the

circumstances not just the defendant's belief.” (Tr.

876-87") (Emphasis added.)

The Appellate Court affirmed this refusal by saying

there was not even “some evidence” that defendant acted

in self-defense. (App. lla-18a) That the trial court’s

refusal properly to instruct the jury violated defendant’s

constitutional right was raised in his petition for leave to

appeal.

Ineffective Assistance Of Counsel

Trial counsel was unaware that under the Illinois

statute defining voluntary manslaughter, an “unreason-

able belief” that one had to act in self-defense reduces

the offense from murder to manslaughter, and hence, he

failed to request a manslaughter instruction under such

provision, although he requested other manslaughter

instructions, as the offense is otherwise defined. (C. 36)

Trial counsel voir dired the jury substantially on how

they would evaluate psychiatric testimony, intending to

introduce such testimony on the “credibility of defen-

dant’s confession,” unaware that under prevailing law,

such evidence was inadmissible.

The Appellate Court rejected the assertion that trial

counsel rendered ineffective assistance of counsel, apply-

ing to retained counsel’s performance the “sham and

mockery” test. (App. 14a-15a) The insufficiency of coun-

sel was raised in the petition for leave to appeal.

a on

REASONS FOR GRANTING THE WRIT

The affidavit in support of the warrant failed to satisfy

the Fourth Amendment because (a) the description of the

Nengece agp: of a credit card receipt to deceased’s body—

the sole evidence linking the defendant to the offense—as

“near” the body, is not a fact but a conclusion that does

not permit the magistrate to make an independent deter-

mination of probable cause; (b) there is no description by

the affiant of the source of information concerning

deceased's presence hitchhiking on the date of the credit

card receipt, preventing the magistrate from making any

determination of the reliability of that information; and

strated merely that a credit card receipt bearing the

same date deceased was last seen in the vicinity was

found in proximity to the body—evidence which the State

admits would not support the “arrest of the defendant”?—

does not rise to the level of probable cause to search the

defendant's home because, as asserted by the State, “the

investigation had not eliminated defendant from suspicion

and no further information could be obtained except by

confrontation with the defendant in some way.”

Prior to authorization of the search of a home, the

Fourth Amendment requires (1) assertion of cir-

ane State in its Brief in the Appellate Court so admitted. It

8 :

“If the search had not revealed o- incriminating

evidence such as described in the searc warrant, it is

clear the police would have departed the residence

without arresting the defendant since there would not

aye been any evidence to support that arrest.” (St. Br., p.

8 and also:

“Investigation had not eliminated defendant from suspi-

cion and no further information could be obtained except

by —— with the defendant in some way.” (St.

r.. D.

cumstances sufficient to warrant a prudent man in

believing that the suspect had committed the offense,

Beck v. Ohio, 379 U.S. 89, 91 (1964); Brinegar v. United

States, 338 U.S. 160 (1949), and (2) allegation of facts,

not conclusions, because a magistrate

“must judge for himself the persuasiveness of the

facts relied upon by the complaining officer to show

probable cause. He must not accept without ques-

tion the complainant’s mere conclusion that the per-

son whose arrest is sought has committed a crime.”

Giordenello v. United States, 357 U.S. 480 (1958).

Cf. Aguilar v. Texas, 378 U.S. 108 (1964).

Here, the affidavit (1) failed to demonstrate evidence

with sufficient certainty as to rise to the level of

probable cause, and (2) failed to provide the magistrate

with crucial facts as distinct from conclusions.

Crucial to link defendant to the crime is finding the

credit card receipt in close proximity to the deceased’s

body, and that her death was of recent origin. The af-

fiant attempted so to do in Paragraphs 1, 3 and 4.4

These allegations are defective, for they fail to supply

the magistrate with facts as opposed to conclusions.

Allegation 3—That near the body was also a charge

receipt from a Master Charge account of one David N.

Wolski of 1821 Frederick Street, Naperville, IL bearing

a date of July 21—merely advised the magistrate that,

4 The State reviewing court stated:

“The third allegation would lead a reasonable person to

lieve 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 probabili-

ty that defendant was linked to the offense so as to

moms gy | permit the search for which authorization was

sought. (App. 5a)

= 1G—

in the opinion of the affiant, the receipt was found near

the body. This is a conclusion, not a fact.

The magistrate was not advised of crucial facts as to

distance, nor was he advised as to the locale. Does the

warrant advise the magistrate:

(1)

(2)

(3)

(4)

How close the receipt § No; it merely uses the

was to the body? general term “near.”

Whether the body was No.

visible from where the

receipt was found?

Whether the receipt No.

was found within the

woods or the path?

Whether it was an No.

area secluded from

the general public or

used by the general

public?

That “near” is a conclusion is evident in an af-

fidavit that used the term “near” five times to de-

fine clearly distinct and different distances. Because

° I.

That on the 22nd day of July, the dead body of one Joy

. Lewis was discovered in a wooded area adjacent to

Hafenrichter Road NEAR the intersection of Hafen-

richter Road and U.S. Route 34 in Kendall County.

That a 2 x 4 board with protruding nails was found

NEAR the body of Joy E. Lewis.

That NEAR the body was also a charge receipt from

. Wols

a Master Charge account of one David ki of 1821

zrenereen Street, Naperville, IL bearing a date of July

That Joy E. Lewis was last observed hitchhiking on

Washington Stree. NEAR Bailey Road in Naperville at

8:15 p.m. on July 21, 1977.

That the residence of David N. Wolski, 1321 Frederick

Street is NEAR the point of last observation of Joy E.

Lewis and is approximately 1 to 1% miles therefrom.

wiltinie

near® is the affiant’s conclusion, Allegation 3 is merely

the affiant’s opinion that something belonging to the

defendant was found in such a manner as to give proba-

ble cause to believe the defendant was involved in the

homicide. This fails to satisfy the Fourth Amendment.

Aguilar v. Texas, 378 U.S. 482 (1958).

Allegation 4,’ necessary to create a temporal rela-

tionship between deceased’s death and the presence

in the area of the receipt, similarly fails to satisfy the

Fourth Amendment. Absent are facts from which the

magistrate could determine the reliability and credibili-

ty of the assertion that Joy E. Lewis was observed

hitchhiking on Washington Street near Bailey Road in

Naperville at 8:15 p.m. on July 21, 1977.

The magistrate did not know: (1) Who provided that

information? (2) How that person knew they saw Joy E.

Lewis? Even when information is supplied by a citizen,

the affidavit must convey information demonstrating

that the citizen had a basis for making and forming the

6 The lack of specificity permitted the police to present their

conclusion, where presenting the “true” facts would have

resulted in an allegation less forceful than Allegation 3. The

statement in Allegation 3, highly material that the receipt

was near, is false. “Near”, a non-specific term, as here used,

implies that the receipt was in very close proximity. It was

not. If Allegation 3 stated the “true” facts, 2.¢., the y was

found within bushes and shrubs (‘I'r. 339) and on a path com-

monly used by others (Tr, 373) about six feet or more from the

body was found the receipt from a Master Charge account of

David Wolski of 1321 Frederick Street, Naperville, Illinois,

bearing the date of July 21, it would be beyond ment that

there is not sufficient linking of defendant to the body so as to

demonstrate probable cause. See also Point 2, infra.

7 Allegation 4 reads:

“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.”

—15—

opinion conveyed by the affidavit. McCreary v. Sigler,

406 F.2d 1264, 1269 (9 Cir. 1969); People v. Ramey, Cal.

Sup. Ct. 545 P.2d 1333, 16 Cal.8d 263 (1976). Without

any indication of the source of the information in Allega-

tion 4, there was no means for the magistrate to make

an independent determination of the persuasiveness and

accuracy the conclusions there alleged.

The State reviewing court avoided the requirement

that the source of information be stated in the affidavit

by holding (a) that no source need be provided so long as

the affiant (even though not relating personal obser-

vations) could be charged with perjury if the statement

is not true;* and (b) that the rule requiring specification

of the source of facts alleged applies only to non-warrant

situations; and (c) that the issue was waived, because,

although defendant moved to suppress based on an in-

sufficient allegation of probable cause, he failed to assert

that “specific contention in the trial court.” These

reasons are erroneous and the record fails to support the

reviewing court’s conclusion.

8 The Appellate Court stated:

“The police officer's sworn representations of fact in the

complaint were sufficiently definite so that, if false, per-

jury could be assigned.” (App. 7a)

® The State reviewing court stated:

“We note, moreover, that defendant has cited no rele-

vant authority which supports his argument. (People v.

Martin (1977, 46 Ill. App. 3d 948, 361 N.E.2d 595

robable cause for an arrest); ine v. Vanco (1977), 55

l, App. 3d 151, 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 o automobile);

and Aye v. Damon (1975), 32 Ill. App. 3d 987, 337

prong - \stop and frisk, i legal arrest) are inapposite.”

Pp. 0a-/a

—16—

The affidavit in support of a warrant is not sufficient

merely because it is a police officer’s sworn representa-

tion of fact—“sufficiently definite so that, if false, per-

jury could be assigned.” (App. 7a) if there are not facts,

so the magistrate can make an independent determina-

tion Giordenello v. United States, 357 U.S. 482 (1958);

Spinelli v. New York, 393 U.S. 410 (1969).

The State reviewing court’s position, that the require-

ment of “underlying facts and source” only applies to

non-warrant situations, is absurd. Cf. Aguilar v. Texas,

378 U.S. 108 (1964).

And the issue was raised. Defendant moved to quash

the warrant, asserting:

*** *

“The complaint for search warrant contained in-

sufficient facts to find probable cause * * *; (SC. 13)

The trial court denied the motion to suppress, stating

that the warrant was based on sufficient facts. (CS. 30)

The error was preserved in the motion for new trial.'°

As demonstrated above, the affidavit in support of the

warrant contains conclusions, not facts, and fails to

satisfy the Fourth Amendment.

The affidavit fails to satisfy the Fourth Amendment

requirement that it demonstrate probable cause and not

mere suspicion. Beck v. Ohio, 379 U.S. 89; Brinegar v.

United States, 338 U.S. 160; Sibron v. New York, 392

U.S. 40 (1968).

0 The State, in the Appellate Court, never raised any waiver

argument.

= =

What was presented to the magistrate is that at some

time before or after deceased was last seen alive at 8:15

p.m. on July 21, 1977, a credit card receipt on defen-

dant’s account for a purchase on that date was discarded

and was found somewhere near the body of deceased.

The State admits there was not probable cause to arrest

defendant.

“If the search had not revealed any incriminating

evidence * * * the police would have departed the

residence without arresting the defen caged since

there would not have been any evidence to

that arrest.” (St. Br., p. 32) (Emphasis added

Although certain intrusions may require less justifica-

tion than that necessary to justify an arrest, Terry v.

Ohio, 392 U.S. 1, the evidence justifying a search of a

man’s house based on belief that he committed a crime,

must be sufficient to justify his arrest. There is no

greater invasion than the “ransacking of a man’s house”.

Cf. Payton v. New York, ..... US. ...... 100 S.Ct. 1871

(1980).

In a most candid statement, the State explains why

the warrant was obtained, as follows:

“Investigation had not eliminated defendant from

suspicion and no further information could be ob-

tained except by confrontation with the defendant

in some way.” (St. Br., p. 20)

The State’s position—that where there is suspicion and

further investigation would not eliminate it, the police

are justified in obtaining a warrant to search and

seize—is but another way of asserting that a search is

justified where it is good police work—a position often

refuted by the Court. See Coolidge v. New Hampshire,

403 U.S. 443 (1971); Mincey v. Arizona, 487 U.S. 385;

United States v. Chadwick, 443 U.S. 1, (1977).

** *

—18—

The affidavit in support of the warrant satisfied

neither the “more than suspicion” requirement of

probable cause, nor the requirement that the magistrate

be provided with facts upon which he can make an in-

dependent determination. The search conducted pur-

suant to the warrant violated the Fourth Amendment.

The affidavit for the warrant affirmatively misstates

facts _ is invalid under Franks v. Delaware, 438 U.S. 154

(1978).

The affidavit for the warrant stated, “That near the

body was also a receipt from a Master Charge account

of David N. Wolski.” This statement, highly material, is

false. “Near”, a non-specific term, as here used, implies

that the receipt was in very close proximity. It was not.

It was found some six feet or more from the body (Tr.

354), on the path (Tr. 354) commonly used by others. (Tr.

373) This was known by the police when the term “near”

was deceptively used. Officer Alsup, the affiant, found

the receipt. (Tr. 354)

The deceptively false material statement violates the

Fourth Amendment. Franks v. Delaware, 488 U.S. 154

(1978).

11 This issue was raised in ap ny Fe grad Brief, pp. 20

and 28, but was not considered by the S reviewing court.

Though this issue was not raised in the trial court, this cannot

be considered waiver, because the prevailing iy in mots at

the time of trial (Jan. 1978) was ut Bach, 45 Ill. 2d 140,

which prohibited goi hind four adn of the

warrant. The decision of this Court in Franks v. Delaware,

488 U.S. 154, was not rendered until June 26, 1978. Hence,

failure to raise this constitutional issue at trial shouid not be

“waiver.” Grosso v. United States, 390 U.S. 62 (1968);

v. United States, 291 F.2d 56 (9th Cir. 1961).

—19—

Where there is not evidence sufficient to mppest defen-

dant’s arrest, seizing the defendant outside his house and

bringing him into his house and interrogating him, is an

arrest and cannot be justified “so as to prevent the

defendant from interfering with the search within the

house”; and a statement obtained during the illegal arrest

must be suppressed.

Confronted with the State’s admission that at the time

defendant was seized outside his house, brought into his

house and interrogated, there was not sufficient

probable cause for the defendant’s arrest, i.e.,

“If the search had not revealed any incriminating

evidence such as was described in the search

warrant, it is clear that the police would have

departed the residence without arresting the defen-

dant since there would not have been any evidence to

<5 that arrest.” (St. Br., p. 32) (Emphasis add-

the State reviewing court avoided the holding required

by Dunaway v. New York, 442 U.S. 200 (1979), and

Brown v. Illinois, 422 U.S. 590 (1975), that defendant’s

statement must be suppressed if his arrest was illegal,

erroneously holding that the “detention” of the defendant

was not an “arrest.” (App. 10a) This holding is consti-

tutionally impermissible.

Defendant was under arrest when, at 12:30 a.m., he

drives into his driveway, a car drives in behind him,

blocking his car, (Tr. H. 20); police officers with drawn

guns place him against the car and search him, (Tr. 89);

he is made to put his hands on the hood of the car, (Tr.

20); he is read Miranda-type warnings, (Tr. H. 21, 72-

73); and not allowed to leave, (Tr. H. 14, 73-74); and he

is moved inside his house and ordered to sit in a secured

area of the living room, (Tr. H. 74-77), where he is in-

terrogated. (Tr. H. 74-78)

—20—

His “arrest” for interrogation cannot be justified “in

order for the police to execute the search of his person

authorized by the search warrant,” (App. 10a), because,

“defendant was searched as soon as he got out of his

car.” (App. 10a) Once the authorized search of defendant

was completed, holding him for investigation and in-

terrogation violated his constitutional rights. The

further seizure of defendant cannot be justified to

“preserve the scene and to secure the safety of the of-

ficers conducting the search.” (App. 10a) Defendant was

not arrested in the premises, but outside. The police can-

not justify his detention—to prevent him from interfer-

ing with their search inside the house—when it was they

who brought him in. The police cannot expand their

authority to detain by moving the apprehended person

for their benefit. Cf, Vale v. Louisiana, 399 U.S. 30

(1970); Chimel v. California, 395 U.S. 752 (1969).

Defendant was arrested and, as admitted by the State,

his arrest was without probable cause.

Defendant’s initial statement was obtained within one

hour of his illegal arrest; his further statement was ob-

tained one hour after the initial statement. During this

entire time, defendant was in custody of the same of-

ficers or their associates; there was continued attempt to

interrogate defendant from the time of defendant’s

arrest. The taint of the initial illegality was never

attenuated. Brown v. Illinois, 422 U.S. 590 (1975);

Dunaway v. New York, 442 U.S. 200 (1979).

The statement was obtained in violation of defendant’s

Fourth Amendment rights.

The right to jury trial and due process is denied where

the trial court refuses to instruct the jury on an affir-

mative defense, ie., self-defense. ‘xecause he personally

evaluates defendant's testimony that he acted in self-

defense as being unreasonable.

Petitioner’s right to trial by jury and due process of

law was violated because the trial judge refused to in-

struct on the defense of self-defense because in his opin-

ion, defendant’s belief that he had to act in self-defense

was unreasonable. The trial court stated:

“The Court: Despite what the defendant may have

testified to he believed, I don’t agree there is anything

in the record insofar as the facts are concerned

reasonably justify anybody feeling their life was in

danger of great bodily harm. Here was a bulky man

weighing 265, and she weighed 120, and all he

received was a couple of kicks in the groin, and un-

der all those circumstances and other circumstances

alluded to by the State’s Attorney, I don’t think

there is any legitimate question of fact on that to

present to the jury, so I am sustaining the objec-

tions to the giving of that instruction. Again, it is

what a reasonable person would believe under the

circumstances not just the defendant’s belief.”2 (Tr.

876-877) (Emphasis added.)

It is constitutionally impermissible for a trial court to

refuse to give an instruction on a defendant’s affirmative

2 Under the Illinois statutory scheme, a person can be guilty

of voluntary manslaughter either if defendant is “acting un-

der a sudden intense passion resulting from serious provoca-

tion” Chap. 38, Sec. 9-2(a), or “if at the time of the killing he

believes the circumstances to be such that, if they existed,

would agg? or exonerate the killing under the ———

stated in Article 7 of this Code [(said Article sets out the affir-

mative defenses such as self-defense, defense of others, defense

of Nig mg ye his belief is unreasonable.” Chap. 38, Sec. 9-

2b). Here, the trial court did instruct pursuant to Sec. 9-2(a),

but did not instruct as to Sec. 9-2(b).

anililiiss

defense or on a lesser included offense because the court

personally evaluated the evidence. “So long as there is

some evidence... , the proper weight to be given is for

the jury to determine” Stevenson v. United States, 162

U.S. 314 (1896). Beck v. Alabama, ..... US. ..... 65 L.Ed.

2d 392 (1980); Zemina v. Solom, 573 F.2d 1027 (1978).

The State reviewing court affirmed by evaluating the

evidence and erroneously concluding that the record is

“devoid of evidence of self-defense.” (App. 11a-18a) This

is not true.

Defendant testified that deceased originally tried to

rob him (Tr. 742-743); that after he prevented such initial

attempt she solicited a sexual encounter (Tr. 744); that

after enticing him, she began to attack him, kicking him

twice in the groin (Tr. 746); that to prevent further at-

tack, in defense of himself, “while she was attempting to

kick me, punch me or scratch my face,” (Tr. 804), he hit

her with his fist and when this would not prevent her

continued attack, he hit her once with the pipe. (Tr. 747)

His testimony as to the extent of the kicks in the groin is

corroborated: his blood was on his undershorts. (Tr. 636)

The State reviewing court rejected the position that

the bloody shorts corroborated the claim of self-defense:

“There is no evidence in the record, nor did defen-

dant suggest in his testimony, that any conduct of

the deceased caused him pain, injury or bleeding.”

(App. 12a) (Emphasis added.)

Not true. Defendant testified that as he was attempting

to get on top of her after she had solicited him to do so,

then suddenly:

“she kicked me hard in the groin...

Q. Dave, did that first kick she kicked you with

before she said anything, did that hurt you?

A. Yes, I was in a lot of pain.

Q. Did the second kick hurt you?

A. Yes.” (Tr. 746) (Emphasis added.)

fins

And as that statement of the Appellate Court is not

true, so is its conclusion that there is no evidence that

defendant acted in self-defense. His further testimony is

that after twice being kicked in the groin, he hit her

with his left fist on the face, (Tr. 746-747); “. . . she fell

back on the seat and then continued to struggle and

attempt to kick me (Tr. 747) And there was a piece of

steel . . . on the floor, and I picked it up and hit her with

it at that time.” (Tr. 747) This is evidence that defen-

dant, having been twice kicked in the groin, which caus-

ed him to “be in a lot of pain,” (Tr. 746), and in order to

prevent his being kicked again, hit her with the iron

pipe. (Tr. 747) This is testimony requiring the giving of

a self-defense instruction. The court’s refusal denied

defendant due process and his right to a jury trial.

Stevenson v. United States, 162 U.S. 314 (1896); Beck v.

Alabama, ..... USS. ..... 65 L.Ed.2d 392 (1980).

The Illinois Courts’ application of the “farce or sham”

standard in evaluating the quality of petitioner’s represen-

tation abridged petitioner’s Fourteenth Amendment

rights to the effective assistance of counsel and equal pro-

tection of the laws.

The “farce or sham” test is not a constitutionally

permissible standard for review of ineffective assis-

tance of counsel claims.

Petitioner contended in the Illinois Appellate Court

that he was entitled to reversal of his conviction because

of incompetence of his trial counsel. The Appellate Court

noted that “[t]he standard applied in Illinois to judge the

competence of retained counsel is whether the caliber of

representation was so low as to amount to no representa-

tion at all or to reduce the court proceedings to a farce

or sham.” (App. 14a) The petitioner’s claim was rejected

on the ground that “the representation afforded to defen-

dant did not violate that standard.” Jd. The petitioner’s

conviction cannot stand because the “farce or sham”

standard applied to petitioner’s claim by the Illinois

court is constitutionally infirm. Effective assistance of

counsel as guaranteed by the Sixth and Fourteenth

Amendments requires a higher caliber of representation

than that implied in the “farce or sham” test. This is

clearly indicated in McMann v. Richardson, 397 US.

759 (1970), where this Court, noting that “defendants

cannot be left to the mercies of incompetent counsel,”

397 U.S. at 771, declared that a guilty plea made on ad-

vice of counsel is open to attack if counsel’s advice was

not “within the range of competence demanded of at-

torneys in criminal cases.” Jd.

The United States Courts of Appeal in ten of the

eleven circuits have clearly rejected the “farce or sham”

test and its equivalents.’

13 First Circuit—United States v. Bosch, 584 F.2d 11138 (1

Cir. 1978);

i Circuit—Moore v. United States, 482 F.2d 730 (3 Cir.

Fourth Circuit—Marzullo v. Maryland, 561 F.2d 540 (4 Cit.

ae Coles v. Peyton, 398 F.2d 224 (4 Cir. 1968), cert. d,

393 U.S. 849;

Fifth Circuit Herring v, Estelle, 491 F.2d 125 (5 Cir. 1974);

Mac Kenna v. Ellis, 280 F.2d 592 (5 Cir. 1960), modified, 289

F.2d 928 (5 Cir. 1961), cert. denied, 386 U.S. 877;

sae Circuit—Beasley v. United States, 491 F.2d 687 (6 Cir.

Seventh Circuit—United States ex rel. Williams v. Twomey,

510 F.2d 634 (7 Cir. 1975);

~~ Circuit—United States v. Easter, 539 F.2d 663 (8

Cir. 1976);

Ninth Circuit—C v. Fitzharris, 586 F.2d 1825 (9 Cir.

1978), cert. denied, 440 U.S. 974;

Tenth Circuit—Dyer v. Crisp, 618 F.2d 275 (10 Cir. 1980);

District of Columbia Circuit—United States v. DeCoster, 487

F.2d 1197 (D.C. Cir. 1973).

(Footnote continued on following page)

—25—

The “farce or sham” test is so opposed to the

overwhelming weight of current Sixth Amendment

jurisprudence that this Court cannot suffer it to be

applied to deny defendant his constitutional right to the

effective assistance of counsel.

Petitioner was deprived of the equal protection of the

laws because the quality of his representation by

retained counsel was evaluated by the “farce or sham”

standard, while the quality of representation by

appointed counsel is evaluated according to a differ-

ent, higher standard.

The Illinois courts adopt different standards for

evaluating the effectiveness of counsel’s representation

depending on whether counsel was retained or ap-

pointed.

“Where the defendant selects his own attorney

** * that the failure of such counsel to exercise

care and skill in the trial of the case does not afford

a basis for reversing a judgment of conviction.

*“* *

* * * [hjowever, in those cases where the defendant

is represented by court-appointed counsel * * * [it

is] the duty of the trial court to see that counsel is

assigned who has sufficient ability and experience

to fairly represent the defendant, present his

defense and protect him from undue oppression.”

People v. Morris, 3 Ill.2d 487, 444-45, 121 N.E.2d

810, 815 (1954).

‘8 continued

In the Second Circuit, in Brinkley v. evre, 621 F.2d 45

(2d Cir. 1980), the issue of whether the gleun and mockery”

standard should be abandoned was not reached, because the

majority found no Sixth Amendment violation regardless of

what alternative standard ought to apply. 621 F.2d at 47. A

strong dissenting opinion urged immediate consideration of

the issue in order to articulate a proper standard for

evaluating criminal representation. Jd. at 47-48.

—26—

The farce or sham test, applicable to private counsel,

People v. Murphy, 72 Ill.2d 421, 381 N.E.2d 677 (1978),

is inapplicable to appointed counsel. People v. Hainline,

77 Ill. App. 3d 80, 38, 395 N.E.2d 1224, 1227 (1979).

Application of the “farce or sham” test, thus affording

the petitioner less protection against prejudice resulting

from incompetent retained counsel than he would have

enjoyed had he been an indigent for whom counsel

would have been appointed is constitutionally imper-

missible. Cuyler v. Sullivan, ..... Tide wes. wep Se ae

1708, 1716 (1980).

There is ineffective assistance of counsel here, because

of lack of preparation and “unawareness” of a rule of law

basic to the case. People v. Ibarra, 60 Cal.2d 460, 386

P.2d 487 (1968); Wolf v. Briton, 509 F.2d 304 (8 Cir. 1975).

Here, counsel’s failure to read the controlling statutes

caused him to fail to request an instruction on voluntary

manslaughter. Under the Illinois statutory scheme, a

person can be guilty of voluntary manslaughter and not

murder if, when he kills, he believes he is acting in self-

defense, but his belief is unreasonable. Chap. 38, Sec. 9-

2(b).

Hence, even if the trial court was correct in con-

cluding that defendant’s belief that he had to act in self-

defense was unreasonable; once the court having concluded

that defendant had such a belief, defendant had a right

to have the jury instructed on the lesser included offense

of voluntary manslaughter. He and his lawyer desired

that the jury be instructed on a lesser included offense;

counsel requested an instruction on the lesser included

offense of voluntary manslaughter (murder reduced if

the killing is by provocation). Chap. 38, Sec. 9-2(a).

Hence, the failure specifically to request the instruction

on voluntary manslaughter as defined as “unreasonable

self-defense” must be because the lawyer failed to read

the statute.

= =

Further evidence of ineffective assistance of counsel is

the attorney’s substantial voir diring of the jurors as to

how they would respond to psychiatric expert testimony

(Tr. 43, 55-57, 66-67, 84-85, 115-116, 138, 170, 171, 216,

217, 224-225, 238, 280, 294-295), where his intent was to

introduce such expert evidence on the “credibility of

defendant’s confession” (Tr. 707-705), where the most

superficial research’ would demonstrate that such

testimony is inadmissible on the issue of “credibility of

the confession.” Voir diring the jury improperly prej-

udiced the defendant by destroying his credibility in

the eyes of the jury, and because the jury selection by

the lawyer was based upon an irrelevant issue.

Defense counsel was unprepared, and could not and

did not render effective assistance of counsel.

CONCLUSION

Petitioner requests grant of a Petition for Writ of

Certiorari.

Respectfully submitted,

FREDERICK F. COHN

JOEL KERSTETTER

35 East Wacker Drive

Chicago, Illinois 60601

(312) 641-0692

Attorneys for Petitioner

«People v. Slago, 58 Ill. App. 34 1009, 874 N.E.2d 1270: Peo-

ev, Hester, BE Til ad ae Big 0 374 D He made no ot

(e) 0 sO.

—la—

APPENDIX A

(No. 78-306—Filed March 24, 1980)

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

PEOPLE OF THE STATE OF ILLINOIS,

Plaintiff-Appellee,

vs.

DAVID A. WOLSKIT,

Defendant-Appellant.

Appeal from the 16th Judicial Circuit,

Kendall County, Illinois.

MR. JUSTICE NASH delivered the opinion of the court:

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 there-

under suppressed; (II) that his inculpatory statements to

investigating officers should have been suppressed; (III)

—2a-—

that the trial court erred in failing to instruct the jury

on self-defense and on voluntary and involuntary man-

slaughter; (IV) that he lacked effective assistance of coun-

sel; (V) that two prospective jurors should have been

excused for cause; (V1) 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 sen-

tence 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 Hafen-

richter 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 sub-

stantially of clothing belonging to defendant, the purported

murder weapon, inculpatory pre-trial statements attrib-

uted to defendant, and his own testimony in the course

of trial.

Defendant’s testimony in trial differed little from his

pre-trial 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

—8a—

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 dif-

ference 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. Defend-

ant 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 di-

rections.

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

—da—

his clothing and placed his bloodstained undershorts in a

bathrobe pocket.

Based upon the complaint and affidavit of an investi-

gating 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 war-

rant 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 war-

rant. As a result of this search the officers seized de-

fendant’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 de-

cedent’s hair.

Defendant thereafter gave a detailed statement relating

his contact with the decedent.

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 con-

stitutions and section 108-3 of the Code of Criminal Pro-

cedure 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

—5a—

C) that it contained unexplained handwritten ad-

ditions.

A complaint and affidavit for the issuance of a search

warrant must be considered by the issuing judge and re-

viewing court in a common-sense, realistic fashion (People

v. McGram (1967), 38 Ill. 2d 189, 230 N.E.2d 699), and

great deference should be paid to the issuing judge’s de-

termination of probable cause (Spinelli v. United States

(1969), 393 U.S. 410, 419, 21 L. Ed. 2d 687, 645, 89 S. Ct.

584, 590). 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 com-

mitted; 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 om 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 in-

tersection 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.

—6a—

[sis] Wolski of 1321 Frederick Street, Naper-

ville, IL bearing a date of July 21, 1977.

4. That Joy E. Lewis was last observed hitchhiking

on Washington Street near Bailey Road in Na-

perville 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 approxi-

mately 1 to 1144 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. Weimger

(1978), 63 Ill. App. 3d 171, 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 IIl.

App. 3d 643, 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,

361 N.E.2d 595 (probable cause for an arrest); People

—J7a—

v. Vanco (1977), 55 Til. App. 3d 151, 371 N.E.2d 82 (af-

fiidavit 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, 387 N.B.2d 262 (stop and

frisk, illegal arrest) are inapposite. The police officer’s

sworn representations of fact in the complaint were suf-

ficiently definite so that, if false, perjury could be assigned

(People v. Bak (1970), 45 Til. 2d 140, 258 N.B.2d 341;

Franks v. Delaware (1978), 438 U.S. 154, 57 L. Ed. 2d

667, 98 S. Ct. 2674), and the warrant will not be quashed

on the basis urged by defendant.

Defendant also argues that the complaint was defective

in that it failed to list any of the items to be searched

for and seized, and he takes exception to the search war-

rant’s broad authorization of seizure of ‘‘articles of cloih-

ing with blood or male or female secretions thereon.”’

Article I, section 6 of the Illinois Constitution and

section 108-3 of the Code of Criminal Procedure of 1963

(Tll. Rev. Stat. 1977, ch. 38, par. 108-3) require that a com-

plaint for a search warrant describe with particularity

the ‘‘place or person, or both, to be searched and the

things to be seized.’’ The purpose of that requirement is

to prevent the issuance of general search warrants. Peo-

ple v. Elias (1925), 316 Ill. 376, 147 N.E. 472; People v.

Holmes (1974), 20 Ill. App. 3d 167, 312 N.E.2d 748.

The complaint in this case sought authorization to seize

**the following instruments, articles and things which have

been used in the commission of, or which constitute evi-

dence of, the offense of murder’’, but it did not further

satin

describe in greater detail the items to be seized. The search

warrant, however, did describe the items which could be

seized under its authority: ‘‘blood, articles of clothing

with blood or male or female secretions theron [sic],

jewelry and other personal items formerly in possession

of Joy E. Lewis, hair from the head of Joy E. Lewis,

dirt, grass on [sic] other materials or things from the

area where the body of Joy E. Lewis was found. finger-

prints [sic] of Joy E. Lewis.”’ The record discloses that

both the complaint and warrant were drafted by the same

persons and were presented simultaneously to the issuing

judge who affixed his signature to both documents.

It has been held that, in accordance with sound legal

practice, the issuing judge may be presumed to have read

both the warrant and accompanying complaint before is-

suing the search warrant. (People v. Mays (1974), 25 Til.

App. 3d 435, 323 N.E.2d 409 (abstract).) Under the cir-

cumstances of this case, therefore, we see no error in the

trial court’s ruling on this point. The failure of the com-

plaint to specify the items to be seized, while not a prac-

tice to be encouraged, was in the nature of a technical

defect not affecting the substantial rights of the accused

(Ill. Rev. Stat. 1977, ch. 38, par. 1018-14) and did not con-

stitute a basis for quashing the search warrant or sup-

pressing the evidence seized thereunder. The warrant de-

scribed the items to be seized with as much exactitude as

was possible at that stage of the investigation (see People

v. Raicevich (1978), 61 Tl. A'pp. 3d 143, 377 N.E.2d 1266),

and sufficiently limited the discretion to be exercised by

the officers in conducting the search. (See People v. Prall

(1924), 314 Ill. 518, 145 N.E. 610; People v. Sovetsky

(1931), 343 Tll. 583, 175 N.E. 844.) The present case must

be distinguished from People v. Prall and People v. Bishop

—9Ia—

(1979), 71 Ill. App. 3d 52, 388 N.B.2d 1144, referred to

by defendant, wherein the warrants themselves failed to

describe the items to be seized.

Defendant also objects to certain handwritten interlinea-

tions on the face of the typewritten complaint and in the

body of the search warrant, and suggests the warrant was

thereby invalidated. To the complaint was added: ‘10,

The dead body was nude from the waist down and ap-

peared to be sexually molested’’, initialed by the affiant

Officer; to the warrant was added ‘(clothing with blood]

or male or female secretions’’ and ‘‘fingerprints of Joy

KE. Lewis’’, both items clearly initialed by the issuing

judge. These alterations did not affect the substantial

rights of defendant. (See People v. Fitegerald (1975), 35

Til. App. 3d 58, 340 N.E.2d 591.) We find no parallel be-

tween these facts and those in People v. West (1977), 48

il. App. 3d 132, 362 N.E.2d 791, relied on by defendant,

wherein the issuing judge materially altered the search

warrant pursuant to the ‘‘unsworn, factually unsupported

oral speculation’’ of a police officer not the affiant in the

complaint. 48 Ill. App. 3d at 135, 362 N.E.2d at 794.

Defendant next contends that the inculpatory statement

he gave to the investigating officers at the police station

should have been suppressed and asserts, first, that it was

the fruit of a warrantless arrest made without probable

cause. His argument is grounded on a claim that he was

illegally placed under arrest when he first encountered

the officers on alighting from his car on the driveway to

his house, and that at that moment the arresting officers

—10a—

did not have enough facts or evidence to constitute prob-

able cause that defendant had committed an offense. At

the hearing of his motion to suppress defendant testified

that officers informed him at that time he was under ar-

rest; three officers who were present during the search

testified, however, that defendant had not been placed

under arrest before the search of his home disclosed his

bloodstained undershorts. Testimony further disclosed that

defendant was searched as soon as he got out of his car

and he was then taken into the house where he was in-

structed to remain in a chair while the search of his

house and car were carried out.

An arrest is effected by ‘‘an actual restraint of the

person or by his submission to custody.’’ (Ill. Rev. Stat.

1977, ch. 38, par. 107-5(a).) Defendant’s argument, that

the initial restraint of his person amounted to an illegal

arrest requiring suppression of his statement defies logic.

He must necessarily have been reasonably restrained in

order for police officers to execute the search of his per-

son authorized by the search warrant. As defendant was

lawfully restrained under the authority of the search war-

rant, that restraint cannot form a basis for suppression

of the fruits of the search or of his subsequent arrest.

We note further that section 108-9 of the Criminal Pro-

cedure of 1963 (Ill. Rev. Stat. 1977, ch. 38, par. 108-9)

approves detention of persons on the premises to be

searched in order to preserve the scene and to assure the

safety of the officers conducting the search. It is apparent

the restraint and search of defendant was carried out at

the earliest opportune moment. See People v. One 1968

Cadillac Automobile VIN #J8316714 (1972), 4 Ill. App.

8d 780, 281 N.E.2d 776.

—lla—

The second prong of defendant’s argument for the sup-

pression of his statement is that he did not make a know-

ing and voluntary waiver of his rights under Miranda v.

Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct.

1602. We cannot agree. It is undisputed in the record that

defendant was twice fully advised of his rights, the first

time before any questioning, and he acknowledged this fact

in his own testimony. He also testified at trial that he

did in fact understand his Miranda rights and had volun-

tarily waived them. While he suggests now on appeal that

he did not knowingly and voluntarily waive his rights, we

are unimpressed by his present argument in light of his

testimony at trial.

. We find that the trial court correctly refused to sup-

press defendant’s statement and that defendant’s response

to an inquiry from a police officer as to whether he wished

to waive his rights, ‘‘I don’t wish to but I certaining [sic]

will,’’? does not require a contrary finding.

II.

Defendant next contends that the trial court erred in

failing to instruct the jury as to voluntary manslaughter

(Ill. Rev. Stat. 1977, ch. 38, par. 9-2(b)), and self-defense

(Ill. Rev. Stat. 1977, ch. 38, par. 7-1), and involuntary man-

slaughter (Ill. Rev. Stat. 1977, ch. 38, par. 9-3). Defend-

ant’s tendered instructions relating to the latter two sub-

jects were refused by the trial court; no instruction on

voluntary manslaughter was tendered by him, however,

so he has waived consideration of that question on appeal.

People v. Roberts (1979), 75 Tl. 2d 1, 387 N.E.2d 331.

Initially we address the question whether there was

“‘some evidence’’ of self-defense presented at trial, in

accordance with section 3-2(a) of the Criminal Code of

—12a—

1961 (Ill. Rev. Stat. 1977, ch. 38, par. 3-2(a)), and based

on the record before us we agree with the trial court’s

refusal to instruct on self-defense. In his statement to

the police defendant said he had attempted sexual rela-

tions with the decedent and that she thereupon struck him

in the groin with her knee, an action which ‘‘startled’’

him. He further acknowledged that although she hit him

in the face with her fist, ‘‘it wasn’t much of a, of a blow.’’

Defendant then hit her on the head with a 23% lb., 1114”

long steel bar while positioned on top of her on the front

seat of his car; he was 26 years old, a veteran, and weighed

approximately 265 pounds while decedent was 14 years

old and weighed about 120 pounds. Responding ‘to a ques-

tion during his post-arrest interrogation as to whether

he again struck decedent outside the car, defendant said

“‘T don’t recall doing it. I, I just say I must have because

there was, there was blood all over me, my hands.”’

As evidence of self-defense, defendant points to his

undershorts, stained with blood of his own type, not of

decedent’s. We find this insufficient to lend support to his

claim of self-defense. There is no evidence in the record,

nor did defendant suggest in his testimony, that any con-

duct of decedent cause him pain, injury or bleeding. The

bloodstains on his clothing are generally unexplained and

it cannot be determined from the record when they oc-

curred.

As the record is devoid of evidence of self-defense, the

trial court need not have instructed as to that issue. (See

People v. Allen (1972), 50 Tl. 2d 280, 278 N.E.2d 762.)

For the same reasons we reject defendant’s argument

that the trial court should have instructed sua sponte on

voluntary manslaughter. People v. Wilkins (1976), 36 Ill.

App. 3d 761, 344 N.E.2d 724.

—13a—

In support of his contention that the trial court erred

in refusing his tendered instruction on the lesser included

offense of involuntary manslaughter, defendant theorizes

that a jury might have found he hit Joy Lewis only once,

and was merely reckless in leaving her lying injured at

the roadside where some unknown person killed her. Where

there is some evidence in the record which, if believed by

a jury, would reduce the crime to involuntary manslaugh-

ter, a defendant is enti‘led to an instruction defining the

lesser included offense if he so requests (People v. Joyner

(1972), 50 Ill. 2d 302, 306, 278 N.E.2d 756, 759), but such

evidence is lacking in this case.

Recklessness in the performance of an act is an essen-

tial element of the offense of involuntary manslaughter.

(Ill. Rev. Stat. 1977, ch. 38, par. 9-3.) The offense is also

characterized by the absence of an intent to kill or inflict

injury. (Ill. Rev. Stat. 1977, ch. 38, par. 9-3; People v.

Farmer (1977), 50 Ill. App. 3d 111, 365 N.E.2d 177.)

Defendant’s own description of the incident militates

against a finding that he acted recklessly or lacked the

requisite knowledge for a finding of murder (Ill. Rev.

Stat. 1977, ch. 38, par. 9-1(a)(2)); to the contrary, his

acknowledged conduct in striking the girl on the head with

a steel bar can only be viewed as deliberate and volitional.

He stated he believed she was dead when he left the scene.

The trial court therefore correctly refused defendant’s

tendered instruction on involuntary manslaughter. See

People v. Cannon (1971), 49 Ill. 2d 162, 273 N.E.2d 829;

People v. Latimer (1966), 35 Ill. 2d 178, 220 N.B.2d 314;

and People v. Boisvert (1975), 27 Ill. App. 3d 35, 325 N.E.

2d 644.

For these same reasons, we also decline to reduce de-

fendant’s murder conviction to either voluntary or in-

voluntary manslaughter.

—l4a—

IV.

Defendant next contends that he lacked effective as-

sistance of counsel at trial because his attorney was in-

competent. The standard applied in Illinois to judge the

competence of retained counsel is whether the caliber of

representation was so low as to amount to no representa-

tion at all or to reduce the court proceedings to a farce

or sham. (People v. Murphy (1978), 72 Ill. 2d 421, 381 N.E.

2d 677; People v. Anderson (1978), 65 Ill. App. 3d 783, 382

N.E.2d 866.) From our examination of the record we find

the representation afforded to defendant did not violate

that standard.

As evidence of his attorney’s incompetence, defendant

points to his failure to request a voluntary manslaugh-

ter instruction. We find no prejudice to defendant by this

omission, however, for his previously tendered self-defense

instruction was correctly refused on the ground that there

was no evidence of self-defense; in that light, it would

have been a meaningless act to seek a voluntary man-

slaughter instruction based on unreasonable self-defense,

the only remotely possible version of voluntary manslaugh-

ter under this evidence.

Defendant also maintains that his attorney ‘‘floun-

dered’’ in his attempts to introduce testimony of char-

acter witnesses; that his counsel failed to know defend-

ant’s statement was an admission and not a confession;

and that his final argument consisted of ‘‘organized ram-

blings.’’ To the contrary, defendant’s attorney did suc-

cessfully introduce character testimony; defendant’s state-

ment was indeed a confession, not merely an admission;

and we do not agree with his characterization of his coun-

sel’s closing argument.

—15a—

Finally, contrary to defendant’s argument, we do not

believe defense counsel’s voir dire examination of prospec-

tive jurors regarding psychiatry and psychiatric testi-

mony, when he later failed to offer such testimony, ren-

dered the trial a farce or sham.

Defendant contends next that the trial court erred in

refusing to challenge for cause two prospective jurors

who were former clients of the prosecutor, thereby forcing

defendant to use his peremptory challenges. He argues

that these persons as jurors could not have maintained

objectivity and impartiality in view of the nature of the

former lawyer-client relationship and, therefore, the im-

pairment of his right to a full allotment of challenges

requires reversal. (United States v. Boyd (5th Cir. 1971),

446 F.2d 1267.) Under the circumstances of this case, how-

ever, we do not agree. The prosecutor had represented

one of the prospective jurors in a real estate closing about

3 years before this trial, and had draftm? ‘ie will of

another prospective juror 10 years before it. \«/ther of

the prospective jurors had employed his professional serv-

ices at any other time, and both responded in their ex-

aminations that they would be impartial regardless of their

prior contact with the prosecutor.

We do not find the former relationship between these

jurors and the prosecutor was such as to require their

exclusion for cause, particularly in that they stated under

oath that it would not affect their resolution of the issues

in this case. We see no prejudice to defendant in the fact

that he used two peremptory challenges to exclude these

jurors for, after exhausting his ten peremptories, he did

not seek to challenge any remaining prospective jurors

—16a—

for cause, and he does not now suggest he wished to chal-

lenge any of the last few jurors chosen to hear this case.

The determination of whether a challenge for cause should

be allowed rests within the sound discretion of the trial

court ( People v. Harris (1968), 38 Til. 2d 552, 232 N.E.2d

721) and that discretion was not abused here.

VI.

Defendant next asserts the trial court erred in exclud-

ing certain testimony by three witnesses relating to his

reputation for truth, veracity and peacefulness. Defense

counsel asked one witness, Tom Zrout, about defendant’s

honesty, but in response to an objection, he withdrew the

question without a ruling by the court. He then questioned

Zrout about defendant’s reputation for integrity, an ob-

jection to which was sustained. We find no error in that

ruling, as Mr. Zrout’s testimony later had to be stricken

in its entirety when it became clear that he was inade-

quately acquainted with defendant’s reputation. People v.

Moretti (1955), 6 Ill. 2d 494, 129 N.E.2d 709.

Defense counsel also sought to elicit reputation testi-

mony from Richard Modell, a Lisle resident who knew

defendant only from defendant’s visits to relatives re-

siding in Lisle. Defendant, however, lived in Berwyn un-

til about the time of the homicide in this case and did

not move to Lisle until a week after the homicide. Modell’s

testimony was correctly stricken as it related to the time

defendant lived in Berwyn for Modell was not familiar

with defendant’s reputation in that community. (People

v. Moretti.) We also note that the portion of Modell’s

testimony which related to the period defendant resided

in Lisle could have also been stricken. Evidence of char-

acter must be confined to proof of the accused’s general

—17a—

reputation among his neighbors and associates at or be-

fore the commission of the offense. People v. Willy (1922),

301 Ill. 307, 183 N.E. 859; People v. Bascomb (1979), 74

Ill. App. 3d 392, 392 N.E.2d 1130.

William Hoy, a co-worker of defendant, was also called

to testify and when asked by counsel for defendant’s

‘‘reputation in the community for violence,’’ he replied,

**T wouldn’t know of any.’’ When asked ‘‘[w]hat is [de-

fendant’s] community reputation whether you know of

any or not?’’, Hoy replied, ‘‘I would say good.’’ At the

prosecutor’s request the court struck the testimony in its

entirety. Defendant now argues this was testimony as to

his reputation for peacefulness to which he was entitled.

We find no error in the court’s ruling. Where an ac-

cused is charged with a crime of violence, as here, evi-

dence of his good reputation for peacefulness is relevant

(People v. Bridgewater (1938), 369 Ill. 633, 17 N.E.2d 556),

but one cannot, however, have a good reputation for vio-

lence. See People v. Partee (1974), 17 Ill. App. 3d 166, 308

N.E.2d 18.

VIL.

Defendant next contends the trial court erred in ex-

cluding evidence that decedent had participated in fights

at school. He argues that as the excluded evidence of par-

ticular acts was offered to reveal a character trait of the

decedent, not her general reputation, it was relevant and

admissible to establish her alleged propensity for aggres-

sion.

It is well-established that where a claim of self-de-

fense is made, and at the time of the incident the accused

knew of the victim’s reputation for violence or knew of

specific violent acts by the victim, proof of such reputa-

tion or acts together with the accused’s knowledge there-

of is relevant and admissible to establish the reasonable-

ness of the accused’s apprehension of danger. People v.

Stepheny (1970), 46 Ill. 2d 153, 263 N.E.2d 83; People v.

Allen (1941), 378 Ill. 164, 37 N.E.2d 854; People v. Adams

(1979), 71 Ill. App. 3d 70, 388 N.E.2d 1326; People v. Ortie

{1978), 65 Ill. App. 3d 525, 382 N.E.2d 303; People v.

Peeler (1973), 12 Tl. App. 3d 94U, 299 N.E.2d 382.

In arguing for the admissibility of evidence of the vic-

tim’s prior conduct defendant relies in part on People

v. Stombaugh (1972), 52 Ill. 2d 130, 284 N.E.2d 640, where-

in our supreme court said that ‘‘evidence concerning the

violent temper and disposition of the deceased and his

prior threats to the defendant is admissible as tending to

show the circumstances confronting the defendant, the

extent of his apparent danger, and the motive by which

he was influenced. Such circumstances are relevant in that

they tend to show the defendant’s state of mind. People

v. Davis (1963), 29 Ill. 2d 127, 129, 130 [other citations

omitted].)’’ 52 Til. 2d at 139, 284 N.E.2d at 645.

The Davis opinion upon which the Stombaugh court

relied clearly qualified, however, the admissibility of evi-

dence of a decedent’s character trait by stating it must

be a trait of which defendant was aware at the time of

the killing. (29 Ill. 2d 127 at 130, 193 N.E.2d 841 at 843.)

The Stombaugh decision did not purport to overrule Davis

in this regard. Thus the law in Illinois still requires the

exclusion of evidence of a victim’s propensity for aggres-

sion unless the accused knew the victim had that trait.

To the extent that they suggest a departure from this

rule, we do not follow People v. Robinson (5th Dist. 1977),

ee RN ee nena

—19a—

56 Ill. App. 3d 832, 371 N.E.2d 1170; People v. Montgomery

(1st Dist. 1977), 51 Ill. App. 3d 324, 366 N.E.2d 623; and

People v. Baer (1st Dist. 1976), 35 Ill. App. 3d 391, 342

N.E.2d 177.

We therefore find the trial court correctly excluded that

testimony. Decedent was a hitchhiker first seen by defend-

ant on the day of her death; they were strangers to each

other and he had no prior knowledge of her character.

VIiil.

Defendant further contends the trial court improperly

instructed the jury by Illinois Pattern Instruction, Crim-

inal, No. 3.07. that defendant made a confession. He ar-

gues the statement he gave to the investigating police of-

ficers was at most an admission, not a confession to mur-

der, as it raised issues of self-defense or provocation. Since

defendant made no objection in trial to the instruction the

issue is waived. (People v. Roberts (1979), 75 Tll. 2d 1,

387 N.E.2d 331; People v. Mailett (1970), 45 Ill. 2d 388,

259 N.E.2d 241.) We decline to consider this issue as plain

error under Supreme Court rules 451(c) and 615(a) (III.

Rev. Stat. 1977, ch. 110A, pars. 451(c) and 615(a)), as

on examination of the statement we have determined that

it cannot fairly be said to raise issues of self-defense or

provocation (People v. Weeks (1976), 37 Tll. App. 3d 41,

344 N.E.2d 791), and it was correctly characterized as a

confession.

IX.

Detendant’s final contention is that his sentence of 20

to 25 years imprisonment is excessive and should be re-

duced to a minimum of 14 years. We decline to do so. The

sentence imposed is within the range permitted by stat-

—20a—

ute (Ill. Rev. Stat. 1977, ch. 38, par. 1005-8-1(c)) and does

not reflect an abuse of the trial court’s discretion under

the circumstances of this case. People v. Perruquet (1977),

68 Ill. 2d 149, 368 N.E.2d 882.

Defendant’s conviction for murder and sentence there-

on is therefore affirmed in all respects.

Affirmed.

UNVERZAGT and WOODWORD, JJ. concur.

—2la—

APPENDIX B

UNITED STATES OF AMERICA

State of Illinois

Supreme Court—ss.

At a Term of the Supreme Court, begun and held in

Springfield, on Monday, the eighth day of September in

the year of our Lord, one thousand nine hundred and

eighty, within and for the State of Illinois.

Present:

JosepH H. GoupenuersH, Cuier Justice

Justice Ropert C. UnpERwoop

Justice Howarp C. Ryan

Justice THomas J. Moran

Justice Danie, P. Warp

Justice Wittiam G. CLark

Justice Tuomas E. Kivuczynsx1

Tyrone C. Fanner, ATToRNEY GENERAL

Loviz F. Dean, MarsHau

Attest: Ciett L. Woops, CLerk

Be It Remembered, that, to-wit: on the 29th day of Sep-

tember 1980, the same being one of the days of the term

of Court aforesaid, the following proceedings were, by

said Court, had and entered of record, to-wit:

People State of Illinois, 7

Resp ondent, ——' an home to >

No. 53538 vs. > Court, Second District,

No. 78-306.

David A. Wolski,

Petitioner. |

And now on this day the Court having duly considered

the Petition for Leave to Appeal herein and being now

—29a—

fully advised of and concerning the premises, doth over-

rule the prayer of the petition and denies Leave to Appeal

herein.

I, CLELL L. WOODS, Clerk of the Supreme Court of

the State of Illinois and keeper of the records, files and

Seal thereof, do hereby certify that the foregoing is a

true copy of the final order of the said Supreme Court in

the above entitled cause of record in my office.

(Seal) In Witness Whereof, I have hereunto subscribed

my name and affixed the Seal of said Court this

19th day of November, 1980.

/s/ Clell LL. Woods Clerk,

Supreme Court of the State of Illinois.

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