People v. Kruger, 4-17-0306

2018 IL App (4th) 170306-U

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOSHUA W. KRUGER, Defendant-Appellant.

NO. 4-17-0306

APPELLATE COURT OF ILLINOIS FOURTH DISTRICT

January 16, 2018

NOTICE

This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from Circuit Court of Vermilion County

No. 99CF357

Honorable Karen E. Wall, Judge Presiding.

JUSTICE TURNER delivered the judgment of the court.

Presiding Justice Harris and Justice Knecht concurred in the judgment.

ORDER

¶ 1 Held: The circuit court did not err by denying defendant's motion for leave to file a successive postconviction petition.

¶ 2 In January 2017, defendant, Joshua W. Kruger, filed a motion for leave to file a successive postconviction petition. In his motion, defendant asserted this court lacked jurisdiction to entertain the State's 2000 interlocutory appeal, and thus our January 2002 judgment was void. In March 2017, the Vermilion County circuit court entered an order denying defendant's motion. Defendant appeals, asserting (1) his double jeopardy claim was properly raised in the successive postconviction petition and (2) his convictions violate the double jeopardy clause. We affirm.

¶ 3 I. BACKGROUND

¶ 4 In August 1999, a grand jury indicted defendant on seven counts of first degree murder (720 ILCS 5/9-1(a)(1), (a)(3) (West 1998)) based on the July 14-15, 1999, death of Peter Godels, two counts of home invasion (720 ILCS 5/12-11(a)(2) (West 1998)), two counts of residential burglary (720 ILCS 5/19-3(a) (West 1998)), and one count of attempt (robbery) (720 ILCS 5/8-4(a), 18-1(a) (West 1998)). In investigating Godels's murder, the police had obtained a search warrant for defendant's vehicle, which commanded the vehicle be searched and the following items be seized: "clothing belonging to [defendant], clothing bearing evidence of blood stains, shoes, crowbar, ski mask, and gloves, any bludgeon, tire iron, or object capable of causing the blunt force trauma to the victim or other items which constitute evidence of the offense of Murder ***." An Illinois State Police crime scene technician searched defendant's vehicle and seized several items, including a chrome casing from the front passenger door. The technician also took various tapings for fingerprint identification and a swabbing of a stain on the bottom of the steering column. In October 1999, an Illinois State Police forensic scientist tested blood from a stain on the chrome casing, and the deoxyribonucleic acid (DNA) from the bloodstain matched Godels's DNA profile.

¶ 5 In July 2000, defendant filed a motion to suppress evidence seized as beyond the scope of the warrant, asserting the following were outside the scope of the search warrant: (1) the swabbing of the stain on the bottom of the steering column, (2) the chrome casing removed from the passenger front door, (3) the door strap removed from the right rear passenger door, (4) the ashtray removed from the right rear passenger door, and (5) the tapings taken from various areas inside the vehicle. On August 28, 2000, the circuit court entered a written order granting in part defendant's motion to suppress. The court excluded the tapings and fingerprint evidence. However, it found bloodstains obtained from the swab were admissible, as well as "any items taken from the vehicle which were in plain view." Defense counsel orally requested the court toclarify whether it had suppressed the items "physically removed from the vehicle," namely, the steering wheel cover, chrome casing, door strap, and ashtray. The court responded, "Right. Not plain view." The State did not appeal the court's August 28, 2000, order.

¶ 6 On October 31, 2000, defendant filed a sixth motion in limine, seeking to bar the State from mentioning or eliciting any testimony regarding the DNA test that matched blood found on the chrome casing with Godels's DNA. Defendant's motion contended the blood evidence was inadmissible for the same reason as the chrome casing and was "nothing more than 'Fruits of the poisonous tree' (evidence found from anything illegally seized)." On November 1, 2000, the circuit court called the case for trial and held a hearing on pretrial motions in the morning. In arguing defendant's sixth motion in limine, the prosecutor stated he did not understand the court was suppressing the chrome casing and requested the court to reconsider its ruling. He explained the crime scene technician had to remove the chrome casing because it could not be swabbed for blood. The State argued the chrome casing was within the scope of the warrant and the police had probable cause to search without a warrant. The court denied the State's oral motion to reconsider and granted defendant's sixth motion in limine. It scheduled jury selection for that afternoon and recessed.

¶ 7 When the circuit court reconvened, the State tendered a notice of appeal "[i]nstanter in open court." The State also filed a certificate of impairment that day. The notice of appeal stated that the State was appealing orders "[s]uppressing evidence and denying a motion to reconsider the suppression and allowing Defendant's 6th Motion in Limine." The circuit court found the State's notice of appeal was untimely with respect to the August 28, 2000, suppression order and stated it would proceed to trial. The prosecutor notified the court that the State would not be participating in the trial. Thereafter, defendant waived his right to a jury.

The court called the case for a bench trial and granted defendant's motion for a directed verdict of not guilty without receiving any evidence. The court entered judgment of not guilty on all charges.

¶ 8 On appeal, this court found it had jurisdiction of the circuit court's November 1, 2000, order under Illinois Supreme Court Rule 604(a)(1) (eff. Nov. 1, 2000), which allowed the State to appeal from an order the substantive effect of which results in suppressing evidence. People v. Kruger, 327 Ill. App. 3d 839, 843, 764 N.E.2d 138, 141 (2002). We then addressed the merits of the State's argument and concluded the circuit court erred in suppressing the blood and DNA evidence. Kruger, 327 Ill. App. 3d at 845, 764 N.E.2d at 142. Thus, this court (1) vacated the circuit court's judgment finding defendant not guilty; (2) reversed the circuit court's November 1, 2000, orders denying the State's motion to reconsider the suppression of the chrome casing and granting defendant's sixth motion in limine, and (3) remanded the case for a new trial. Kruger, 327 Ill. App. 3d at 845, 764 N.E.2d at 142. Defendant filed a petition for leave to appeal to the Illinois Supreme Court, and the supreme court denied defendant's petition. People v. Kruger, 201 Ill. 2d 595, 786 N.E.2d 193 (Oct. 2, 2002) (denying defendant's petition for leave to appeal).

¶ 9 While the State's appeal was pending, the State filed a new indictment that restated the charges from the original indictment and added four counts that raised aggravating factors. After a June 2003 trial, a jury found defendant guilty of felony murder, home invasion, residential burglary, and attempt (robbery). The jury found him not guilty of intentional murder. In August 2003, the circuit court sentenced defendant to concurrent prison terms of natural life for felony murder, 30 years for home invasion, 15 years for residential burglary, and 5 years for attempt (robbery). Defendant filed a direct appeal and raised eight issues. People v. Kruger, 363Ill. App. 3d 1113, 1119, 845 N.E.2d 96, 101 (2006). In March 2006, this court affirmed defendant's convictions but remanded the cause with directions to correct the written sentencing judgment to reflect defendant was convicted of felony murder, not intentional murder. Kruger, 363 Ill. App. 3d at 1124, 845 N.E.2d at 105. Defendant filed a petition for leave to appeal to the Illinois Supreme Court, which the supreme court denied. People v. Kruger, 219 Ill. 2d 582, 852 N.E.2d 244 (May 24, 2006) (denying defendant's petition for leave to appeal).

¶ 10 Defendant has filed numerous collateral challenges to his convictions and sentences. In November 2006, defendant filed a pro se postconviction petition raising 12 grounds for relief. He later filed an amended pro se postconviction petition, which the circuit court dismissed at the second stage of the proceedings. Defendant appealed, and this court affirmed the dismissal but vacated defendant's conviction and sentence for residential burglary and corrected defendant's murder conviction to show conviction for felony murder predicated on residential burglary. People v. Kruger, 2012 IL App (4th) 100866-U, ¶ 21. We remanded the cause with directions to issue an amended sentencing judgment consistent with our judgment. Kruger, 2012 IL App (4th) 100866-U, ¶ 21.

¶ 11 In October 2011, defendant filed a pro se petition for relief from judgment under section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2010)). Defendant's section 2-1401 petition requested vacatur of the Vermilion County circuit court's October 25, 2010, judgment denying defendant's request for a search of the DNA database. On November 4, 2011, the circuit court sua sponte denied defendant's section 2-1401 petition on the merits. Defendant appealed the court's denial. In a March 1, 2013, summary order, this court reversed the circuit court's denial because (1) defendant had not properly served the State and (2) the court's denial occurred prior to the expiration of the 30 day period for which the State had torespond to the petition. People v. Kruger, No. 4-11-1033 (Mar. 1, 2013) (unpublished summary order under Illinois Supreme Court Rule 23(c)). In October 2013, the circuit court dismissed defendant's section 2-1401 petition for want of prosecution and denied defendant's section 2-1401 petition on the merits. Defendant again appealed. This court first denied OSAD's ...