People v. Kulpin

2021 IL App (2d) 180696

Opinion

2021 IL App (2d) 180696 No. 2-18-0696 Opinion filed February 8, 2021 ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of De Kalb County. ) Plaintiff-Appellee, ) ) v. ) No. 16-CF-401 ) MICHAEL KULPIN, ) Honorable ) Robbin J. Stuckert, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE ZENOFF delivered the judgment of the court, with opinion. Presiding Justice Bridges and Justice Schostok concurred in the judgment and opinion.

OPINION

¶1 Defendant, Michael Kulpin, appeals his convictions of first-degree murder (720 ILCS 5/9-

1(a)(1) (West 2016)) and concealment of a homicidal death (720 ILCS 5/9-3.4 (West 2016)),

following a bench trial. He was sentenced to an aggregate term of 63 years’ imprisonment. He

challenges the denial of his suppression motion and argues on various grounds that his sentence is

invalid. We affirm.

¶2 I. BACKGROUND

¶3 On June 24, 2016, a De Kalb County grand jury charged defendant by superseding

indictment with two counts of first-degree murder, aggravated domestic battery (720 ILCS 5/12-

3.3(a) (West 2016)), and concealment of a homicidal death. The victim was 19-year-old Moorea

-1- 2021 IL App (2d) 180696

Des Roches. Defendant and Moorea were living together at 906 Kimberly Drive, Apartment 1, in

the city of De Kalb when the police discovered her body inside defendant’s bedroom closet on

June 5, 2016. An autopsy revealed that Moorea was stabbed and bludgeoned multiple times.

¶4 A. The Motion to Suppress Evidence

¶5 Prior to trial, defendant moved to suppress evidence that the police seized from his

apartment during a warrantless search. The following testimony was introduced at the February

15, 2018, hearing on the motion to suppress.

¶6 1. Officer Jonathan Jursich

¶7 On Sunday, June 5, 2016, at 8:40 p.m., Jonathan Jursich, a De Kalb police officer, was

dispatched to apartment 1 at 906 Kimberly Drive in reference to a missing person report. The

dispatcher advised Jursich that Susan Des Roches was attempting to contact her daughter, Moorea,

as she had not seen or spoken with Moorea since the previous Friday.

¶8 Jursich did not locate Moorea’s car in the apartment building’s parking lot. He looked in

the apartment’s windows but saw no one present. No one answered his knock at the apartment’s

door. He returned to the police department and contacted Susan.

¶9 Susan told Jursich the following. Susan had custody of Moorea and defendant’s infant

child. However, Susan allowed Moorea to keep the child the previous Friday night. Moorea was

supposed to return the child to Susan on Saturday. On Saturday morning, Susan received a text

sent from defendant’s phone. Susan said that Moorea and defendant shared the same phone. The

text said that Moorea was dropping off the child because she was called into work early. However,

defendant brought the child to Susan, which was unusual, because Susan did not get along with

defendant.

-2- 2021 IL App (2d) 180696

¶ 10 Susan described Moorea’s relationship with defendant as marred by domestic violence and

physical abuse. Susan told Jursich that defendant had been arrested for domestic violence against

Moorea. When Susan asked defendant why Moorea was not dropping off the child, defendant said

that Moorea had been called into work early. Susan texted Moorea throughout Saturday about the

child. Some of the texts that Susan received in response, which were purportedly from Moorea,

referred to the child as “Bub.” Susan said that defendant was the only person who called the child

“Bub.”

¶ 11 Susan further told Jursich that, later Saturday afternoon, she received a call from Moorea’s

supervisor at Portillo’s Restaurant in Batavia. The supervisor was worried because Moorea had

not shown up for work. On Sunday, Susan went to defendant and Moorea’s apartment, looking for

Moorea. Susan did not find either Moorea or her car. When Moorea’s supervisor informed Susan

that Moorea did not come into work on Sunday either, Susan called the police. After she made that

call to the police, Susan spoke on the phone with defendant, who said that Moorea had again been

called into work early. Defendant then hung up on Susan.

¶ 12 Jursich testified that—after speaking with Susan—he, Sergeant Todd Wells, and Sergeant

Mark Tehan decided to return to defendant’s apartment. They arrived there at 10:07 p.m. Upon

arrival, Jursich located Moorea’s car in the parking lot. Jursich knocked on the apartment door and

heard movement from inside the apartment. He went outside and looked through the windows, but

he did not see anything. Jursich returned to the apartment door. Eventually, defendant opened the

door, and Jursich informed him that the officers were making a well-being check on Moorea.

Jursich asked defendant to step outside the apartment into the hallway. Jursich testified that, in his

opinion, defendant was under the influence of drugs. According to Jursich, defendant had difficulty

standing. Meanwhile, Tehan was speaking with another male, later identified as Michael

-3- 2021 IL App (2d) 180696

Meszaros. Jursich saw Meszaros inside defendant’s apartment when defendant opened the door to

the officers.

¶ 13 Defendant told Jursich that he had taken Moorea to work that morning in an Uber. Jursich

informed defendant that Moorea had not been at work that day. Defendant repeated that he had

dropped Moorea off at work that morning. Defendant added that he used the Uber to go to a job

interview. Defendant stated that he was “recently” in the company of Meszaros and Meszaros’s

girlfriend, Kaileigh Jung-Herman. Jursich asked defendant if Moorea was in the apartment and

defendant said no. Jursich then asked defendant if he, Meszaros, and Jung-Herman had been the

only persons in his apartment. Defendant stated that he was “not sure.” When Jursich asked

defendant how he could not be sure who was in his apartment, defendant repeated that Moorea

was not there. Jursich then told defendant that the most important thing to Jursich was to find

Moorea. Defendant stated that he wanted Jursich to find Moorea. Jursich then told defendant that

the police needed to make sure that Moorea was not in the apartment. Wells offered to search only

in places where a human could be located.

¶ 14 Then, defendant stated: “There’s something in the closet that will put me in jail for a very

long time.” Jursich asked what that was, and defendant answered that there were “marijuana and

a crack pipe in the apartment.” Jursich asked defendant for permission to search the apartment.

Defendant refused to give permission.

¶ 15 According to Jursich, defendant admitted to having used crack and marijuana that day.

When defendant complained of feeling sick, Jursich escorted him outside the apartment building

to dry heave. When they returned to the hallway, Officer Elizabeth Fabro was present. Fabro stayed

with defendant while Jursich conferred with Tehan and Wells. Jursich, Tehan, and Wells then

decided to enter defendant’s apartment without a warrant, to conduct a well-being check on

-4- 2021 IL App (2d) 180696

Moorea. Jursich checked the living room and the bathroom. He testified that they were looking

only in “areas big enough to where a human could fit in.”

¶ 16 2. Officer Elizabeth Fabro

¶ 17 Fabro responded as Jursich’s backup to the 8:40 p.m. dispatch to defendant’s apartment.

She testified that she did not see Moorea’s car in the parking lot and that no one answered

defendant’s door when the officers knocked. She looked in defendant’s apartment windows. There

was a light on, and she saw a comforter on the bedroom floor. She saw no evidence of criminal

activity or signs that anyone needed help, so she left.

¶ 18 At trial, 1 Fabro testified that she switched to bike patrol after 9 p.m. Later, Jursich needed

an additional unit at defendant’s apartment building, so she “pedaled” there at about 10:24 p.m.

Fabro testified that she met up with the other officers inside defendant’s apartment building at

10:46 p.m. Jursich asked Fabro to stand with defendant while Jursich conferred with Tehan and

Wells. Fabro noted that defendant did not “look well.” Fabro testified that defendant’s head was

“bobbing back” and his eyes were “kind of rolling.” She stated that defendant “looked very tired”

and his eyes would “roll back.” Defendant told Fabro that he had been “doing drugs,” including

heroin, all day. Fabro stayed with defendant until Jursich placed him in handcuffs.

¶ 19 3. Sergeant Mark Tehan

1 For convenience, we combine Fabro’s testimony at the hearing on the motion to suppress

with her trial testimony because they both relate to issues defendant raises regarding the

warrantless search of his apartment. In reviewing the trial court’s ruling on a motion to suppress

evidence, it is proper for us to consider the testimony adduced at trial as well as at the suppression

hearing. People v. Hannah, 2013 IL App (1st) 111660, ¶ 41.

-5- 2021 IL App (2d) 180696

¶ 20 On June 5, 2016, Tehan arrived at defendant’s apartment building at 9:55 p.m. Jursich and

Wells were already there. Tehan announced that they were with the De Kalb Police Department as

he knocked on defendant’s door. Several minutes later, defendant opened the door. While Jursich

and Wells spoke with defendant, Tehan spoke with Meszaros and Jung-Herman. Both individuals

denied having seen Moorea.

¶ 21 Wells told Tehan that he was working with the police department’s drug-investigation team

to obtain a search warrant for defendant’s apartment. According to Tehan, “based on everything

we had been told,” including that Moorea was not then at work because the restaurant was closed,

the officers decided to enter defendant’s apartment immediately to “locate Moorea.” Tehan

testified that their purpose was to “locate Moorea and provide medical aid if needed.”

¶ 22 Tehan checked the kitchen and the back bedroom. He was “looking in spots big enough to

hold a person.” The door to the back bedroom was closed. Tehan opened it. Inside the room, he

saw a crib. Tehan testified that there was a closet with a closed door. He opened the closet door.

Tehan testified: “I saw a body-shaped bundle on the floor of the closet. It was wrapped in a shower

curtain over a blanket.” Tehan peeled back the wrappings and saw Moorea. She was deceased.

¶ 23 4. Sergeant Todd Wells

¶ 24 On June 5, 2016, at 9:55 p.m., Wells responded to a missing person report at defendant’s

apartment. Prior to his arrival, Wells spoke with Jursich. Jursich told Wells about his conversation

with Susan. Wells was also independently aware of prior “domestic disputes” between defendant

and Moorea, which raised his concerns about Moorea’s well-being. Wells spoke with the occupant

of the apartment directly across the hall from defendant’s apartment. She told Wells that she had

not seen Moorea “recently.” Wells knew that Moorea’s car was in the apartment building’s parking

lot.

-6- 2021 IL App (2d) 180696

¶ 25 Then, Wells and Jursich spoke with defendant. Because defendant’s eyes kept rolling to

the back of his head, Wells concluded that defendant was under the influence of drugs. Defendant

told the officers that he dropped Moorea off at work that morning. Defendant stated that later he

was in his apartment with Meszaros and Jung-Herman. According to Wells, defendant first stated

that he was “not sure” if he, Meszaros, and Jung-Herman were the only persons inside his

apartment, but then defendant stated that there was no one else present. When the officers stressed

that their “most important” concern was to find Moorea, defendant gave them “limited” consent

to search his apartment. According to Wells, defendant gave them permission to “look into the

rooms.” Wells then told defendant that they wanted “to look in all areas that a person may be.”

Defendant said that there was something in his closet that was “going to put him in jail for a very

long time.” Defendant stated that he had cannabis and a crack pipe. Wells asked defendant for

permission to search his apartment. Wells advised defendant that, if he refused permission, the

police would obtain a warrant. Defendant told Wells to get a warrant.

¶ 26 Next, Wells conferred with Tehan. Wells testified that he had decided to pursue a drug

investigation. To that end, Wells requested the police department’s drug investigation unit to

procure a search warrant for defendant’s apartment. Wells testified that it would take a minimum

of two hours to get the warrant, during which time the police would secure defendant’s apartment,

meaning that no one would be allowed to enter it.

¶ 27 Wells testified that, at the same time, nothing had alleviated his concern for Moorea’s well-

being, which was the reason for the police response in the first place. Wells considered the drug

investigation as separate from their primary purpose of determining Moorea’s well-being. Based

on everything that he knew, Wells believed that there was “a very good chance” that Moorea was

in the apartment. Consequently, Wells testified, he, Jursich, and Tehan entered defendant’s

-7- 2021 IL App (2d) 180696

apartment. According to Wells, waiting two hours for a warrant would be too long if Moorea were

in distress.

¶ 28 5. The Court’s Ruling on the Motion to Suppress Evidence

¶ 29 The court took the matter under advisement. On March 28, 2018, the court issued its oral

ruling. The court first recounted the facts. Next, the court made findings. The court found that

Moorea was missing under suspicious circumstances. The court found that the police officers

credibly testified that defendant was under the influence of drugs, based on defendant’s demeanor

and his admissions that he had ingested drugs and had drugs in his apartment. The court found that

the officers could reasonably infer that Moorea was in the apartment, perhaps overdosing on drugs,

and that she would need police assistance. The court based that finding on Moorea’s automobile

being in the parking lot, defendant’s statement that he was not sure how many people were in the

apartment, and defendant’s demeanor and appearance. The court found that, after the officers

entered the apartment, their intent was to locate Moorea, as they confined their search to places

where a human could be found, rather than prying into hidden places to look for contraband. Lastly,

the court found that the officers immediately left the premises after they discovered Moorea’s

body. Therefore, the court concluded, the officers had a reasonable belief that an emergency

existed. The court denied the motion to suppress. 2

¶ 30 B. The Trial

2 The trial court did not rule on the State’s alternative argument that Moorea’s body would

have been legally discovered if the officers obtained a search warrant. The court also denied

defendant’s motion to suppress his confession, which is not at issue in this appeal.

-8- 2021 IL App (2d) 180696

¶ 31 On April 16, 17, and 18, 2018, the parties proceeded to a bench trial. Jursich, Fabro, Tehan,

and Wells testified consistently with their testimony at the hearing on the motion to suppress

evidence. In addition, the State presented the following testimony. Susan testified as a life-and-

death witness. Jung-Herman testified that, on June 5, 2016, she, Meszaros, and defendant went

together to Chicago to purchase heroin. After consuming some of the heroin, they went to

defendant’s apartment to shoot more heroin. Moorea was not present. Defendant instructed Jung-

Herman and Meszaros not to go into his bedroom. When the police knocked and announced, “This

is the police,” defendant went into his bedroom. Jung-Herman heard “shuffling” noises coming

from the bedroom. Meszaros testified that defendant told them that he had not seen Moorea since

he dropped her off at work that morning. Meszaros also testified that defendant instructed them

not to go into his bedroom. When the police were knocking on the door, Meszaros tried to follow

defendant into his bedroom, but defendant blocked the bedroom door.

¶ 32 Denise Gombar testified to a March 17, 2015, incident in which Gombar witnessed

defendant beating Moorea with his fists while defendant and Moorea were riding in the backseat

of Gombar’s car.

¶ 33 After the police found Moorea’s body, they obtained a warrant to search defendant’s

premises. During that search, the police recovered from a dumpster in the parking lot of

defendant’s apartment building a broken metal pot, a bottle of bleach, bloody clothes, and a bloody

towel. DNA linked those items to defendant and Moorea. Inside defendant’s apartment, the police

discovered blood stains, bloody items, and various cleaning products. An autopsy established that

the cause of Moorea’s death was multiple sharp-force and blunt-force injuries.

-9- 2021 IL App (2d) 180696

¶ 34 The State introduced a video recording of defendant’s interrogation, in which he admitted

stabbing Moorea and hitting her with a frying pan during a verbal and physical altercation, which

resulted in her death.

¶ 35 The court found defendant guilty on all four counts of the superseding indictment. The

court merged the two first-degree murder count and then merged the aggravated-domestic-battery

count into the remaining first-degree murder count. The court sentenced defendant to 60 years’

imprisonment on the first-degree murder conviction and a consecutive three-year term on the

concealment-of-a-homicidal-death conviction. Defendant filed a motion to reconsider the

sentence. The motion was denied, and defendant filed a timely appeal.

¶ 36 II. ANALYSIS

¶ 37 A. The Motion to Suppress Evidence

¶ 38 Defendant first contends that the court erred in denying his motion to suppress evidence. It

is undisputed that the police officers had neither a warrant nor consent to search when they entered

defendant’s apartment. The State argues that the intrusion was made pursuant to the emergency-

assistance exception to the warrant requirement. In the alternative, the State asserts that Moorea’s

body would have been legally discovered if the officers obtained a search warrant. Defendant

asserts that the emergency-assistance exception does not apply because the officers delayed their

entry for almost one hour after they returned to defendant’s apartment the second time. Citing

People v. Carter, 2016 IL App (3d) 140958, ¶ 33 (police who believe that they have probable

cause to search cannot enter without a warrant on the rationale that they intended to obtain a

warrant), defendant also contends that the inevitable-discovery rule does not apply, because the

police could not justify their warrantless search by claiming that they planned to obtain a warrant.

- 10 - 2021 IL App (2d) 180696

¶ 39 In reviewing a ruling on a motion to suppress, this court accepts the trial court’s findings

of fact so long as those findings are not against the manifest weight of the evidence. People v.

Lewis, 363 Ill. App. 3d 516, 523 (2006). However, we review de novo the trial court’s ultimate

ruling on the legality of the search or seizure. Lewis, 363 Ill. App. 3d at 523.

¶ 40 The fourth amendment to the United States Constitution protects persons from

unreasonable searches and seizures. U.S. Const., amend. IV. Similarly, article I, section 6, of the

Illinois Constitution (Ill. Const. 1970, art. I, § 6) protects persons against unreasonable searches

and seizures and is interpreted in lockstep with the fourth amendment. People v. Ferral, 397 Ill.

App. 3d 697, 704 (2009). The chief evil against which the fourth amendment is directed is entry

into the home. People v. Swanson, 2016 IL App (2d) 150340, ¶ 26. It is a basic principle of fourth

amendment law that searches and seizures inside a dwelling without a warrant are presumptively

unreasonable. Brigham City, Utah v. Stuart, 547 U.S. 398, 403 (2006). Because the “touchstone”

of the fourth amendment is “reasonableness,” the warrant requirement is subject to exceptions,

including the need to protect or preserve life. Stuart, 547 U.S. at 403. “[P]reservation of human

life is paramount to the right of privacy protected by the fourth amendment.” State v. Bogess, 340

N.W.2d 516, 521 (Wis. 1983). Consequently, law officers may enter a home without a warrant to

give emergency assistance to an injured occupant or to protect an occupant from imminent injury.

Stuart, 547 U.S. at 403. “[T]he right of the police to enter and investigate in an emergency is

inherent in the very nature of their duties as police officers *** and derives from the common law

***.” People v. Smith, 47 Ill. 2d 161, 165 (1970).

¶ 41 In Lewis, this court held that an emergency-assistance search is valid where (1) there are

reasonable grounds to believe that there is an emergency that requires the intrusion and (2) there

is a reasonable basis, approximating probable cause, to associate the emergency with the area

- 11 - 2021 IL App (2d) 180696

searched. Lewis, 363 Ill. App. 3d at 530. Here, defendant conceded the existence of the second

prong at the hearing on the motion to suppress. Thus, the question is whether the De Kalb officers

had reasonable grounds to believe that an emergency required their intrusion into defendant’s

apartment before obtaining a search warrant. In Lewis, this court explained that the “controlling

criterion is one of reasonableness.” Lewis, 363 Ill. App. 3d at 529 (citing Mincey v. Arizona, 437

U.S. 385, 392 (1978) (warrantless searches and seizures are permitted where the police

“reasonably believe that a person within is in need of immediate aid”)). The reasonableness of an

officer’s belief that an emergency exists is determined by the “entirety of the circumstances known

to the officer at the time of entry.” (Emphasis added.) Ferral, 397 Ill. App. 3d at 705.

¶ 42 On appeal, defendant does not challenge the trial court’s findings of historical fact. Rather,

defendant urges that those facts presented no emergency. Specifically, defendant asserts that so

much time elapsed between the officers’ second arrival at defendant’s apartment and their entry

that no emergency existed. Jursich testified that the officers arrived at defendant’s apartment

building for the second time at 10:07 p.m. Tehan and Wells testified that they either went to

defendant’s building, or arrived there, at approximately 9:55 p.m. Defendant notes that the record

does not indicate the time when the officers entered defendant’s apartment to search for Moorea.

However, defendant posits that it was after Fabro arrived at 10:46 p.m., because she stayed outside

the apartment with defendant while the others entered to conduct the search.

¶ 43 Defendant argues that, once officers arrive at a scene, the emergency-assistance exception

“requires a quick response from officers.” According to defendant, waiting even 10 minutes to

enter the premises to search “undermines the purpose of the emergency-aid exception because in

that time, the emergency could pass.” Defendant relies on People v. Lomax, 2012 IL App (1st)

103016. Lomax involved multiple 911 calls from citizens claiming that gunshots had been heard

- 12 - 2021 IL App (2d) 180696

from a specific address. Lomax, 2012 IL App (1st) 103016, ¶ 5. The appellate court in Lomax

upheld the police officers’ entry into the defendant’s apartment, holding that the 911 calls triggered

the emergency-assistance exception to the warrant requirement. Lomax, 2012 IL App (1st) 103016,

¶ 47.

¶ 44 However, the Lomax court distinguished People v. Feddor, 355 Ill. App. 3d 325 (2005),

where the police were investigating a traffic accident in which the defendant had fled the scene.

Officers arrived at the defendant’s home, rang the doorbell and received no answer, and they then

waited 10 minutes for another officer to arrive before they forcibly entered the defendant’s

residence and arrested him for driving under the influence of alcohol. Lomax, 2012 IL App (1st)

103016, ¶ 33. The Lomax court noted that the Feddor court determined that “the facts did not

support a reasonable belief that an emergency existed.” Lomax, 2012 IL App (1st) 103016, ¶ 34.

¶ 45 The facts in Lomax and Feddor, as well as in the other cases defendant cites, are unlike the

present case. Here, the officers responded to a a missing person report rather than an emergency

in progress, such as a 911 hang-up call (People v. Koester, 341 Ill. App. 3d 870, 872 (2003)), the

sudden appearance in a police station of a disheveled, disoriented person (People v. Koniecki, 135

Ill. App. 3d 394, 395-96 (1985)), the report of the presence of dynamite in a house trailer (People

v. Meddows, 100 Ill. App. 3d 576, 578 (1981)), or a report of theft of telephone services (People

v. Plante, 371 Ill. App. 3d 264, 266 (2007)). It was not until the De Kalb officers assimilated all

of the information known to each of them through their investigations that they determined the

existence of an emergency likely involving a drug overdose. In missing person cases, courts

approach “each claim of an extraordinary situation by looking at the totality of the particular

circumstances known to the searching officer.” People v. Rogers, 209 P.3d 977, 995 (Cal. 2009).

- 13 - 2021 IL App (2d) 180696

¶ 46 The facts in Rogers are similar to our facts. In Rogers, the San Diego police received a

report that Biata Toronczak was missing and her mother feared that the defendant, who was Biata’s

paramour, was responsible. Rogers, 209 P.3d at 991-92. The defendant was evasive and short when

questioned. Rogers, 209 P.3d at 992. Detective Carlson received information that the defendant

had threatened to lock Biata in the basement storage area of his residence. Rogers, 209 P.3d at 992.

Carlson delayed investigating that tip for over four hours. Rogers, 209 P.3d at 992. Then, Carlson

spoke with neighbors, who had not seen Biata in weeks. Rogers, 209 P.3d at 992. Carlson also

learned that the defendant had sole control over the storage area. Rogers, 209 P.3d at 992. When

Carlson mentioned to the defendant that he had heard of the threat the defendant made to Biata,

and then asked the defendant’s permission to check the storage area, the defendant’s throat began

to throb, and he denied permission. Rogers, 209 P.3d at 992-93. Carlson and other officers then

broke into the storage area, where they discovered a bloody and macabre crime scene. Rogers, 209

P.3d at 993.

¶ 47 The California Supreme Court held that “substantial evidence supports the trial court’s

determination *** that the circumstances known to Detective Carlson established an objective

emergency requiring immediate action.” Rogers, 209 P.3d at 995. The defendant argued that there

was no emergency, because, in part, Carlson’s delays in investigating the storage area was

inconsistent with his belief that an emergency existed. Rogers, 209 P.3d at 996. The California

Supreme Court held that, “it makes no difference that Carlson could perhaps have acted even more

quickly,” because the “relevant inquiry remains whether, in light of all of the circumstances, there

was an objectively urgent need to justify a warrantless entry.” Rogers, 209 P.3d at 997. The court

reasoned that the absence of evidence that Biata was dead, the defendant’s lack of concern, the

defendant’s physical reaction when Carlson mentioned the threat to lock Biata in the storage area,

- 14 - 2021 IL App (2d) 180696

and the defendant’s sole control over the storage area “all contributed to Carlson’s sense of

urgency” about entering the storage area immediately to look for Biata. Rogers, 209 P.3d at 996.

¶ 48 The Iowa case of State v. Carlson, 548 N.W.2d 138 (Iowa 1996), is also instructive. In

Carlson, the police received a report that a woman was concerned about her mother, Rita, from

whom she had not heard in two days. Carlson, 548 N.W.2d at 139. The daughter related that the

defendant, who had been abusive to Rita, had given the daughter conflicting stories concerning

Rita’s whereabouts. Carlson, 548 N.W.2d at 139. Police officers knocked at the defendant’s

residence but received no answer. Carlson, 548 N.W.2d at 139. The officers then spoke with the

daughter again before they made a forced entry. Carlson, 548 N.W.2d at 139. The defendant was

in bed, but the police found Rita’s dead body in the basement behind the furnace. Carlson, 548

N.W.2d at 140. The Iowa Supreme Court upheld the search pursuant to the emergency-assistance

exception, holding that the “specific and articulable” facts known to the officers when they entered

the defendant’s home—Rita was missing for two days, the defendant had a past history of domestic

violence toward Rita, the defendant gave contradictory stories concerning Rita’s whereabouts, the

defendant’s car was in the garage, the defendant’s dog usually resided in the basement but was

roaming the first floor, and the defendant did not respond to the officers’ knocks—satisfied an

objective test of reasonableness that justified the officers’ actions. Carlson, 548 N.W.2d at 143. In

addition, the court stressed that one thing was not known to the officers when they entered the

defendant’s home: that Rita was dead. Carlson, 548 N.W.2d at 143. Thus, although it seemed

highly likely that some terrible harm had befallen Rita, the officers were searching for her, not her

body. Carlson, 548 N.W.2d at 143.

¶ 49 We glean from Rogers and Carlson that it is not the amount of time that elapses from the

first report of a missing person to when the police make a warrantless entry that determines whether

- 15 - 2021 IL App (2d) 180696

an emergency exists but, rather, the totality of the circumstances known to the police when they

make the entry. This is consistent with this court’s decision in Ferral, where we held that the

“existence of an emergency is determined by the entirety of the circumstances known to the officer

at the time of entry.” Ferral, 397 Ill. App. 3d at 705.

¶ 50 Here, as in Rogers and Carlson, it took investigation by the officers to ascertain “specific

and articulable” facts that led them to conclude that an emergency was at hand. When Jursich was

dispatched to defendant’s apartment building at 8:40 p.m. on Sunday, he was advised only that

Susan had not been able to contact Moorea since the previous Friday. Moorea’s car was not in the

parking lot, and no one answered defendant’s door. Neither Jursich nor Fabro noticed anything

amiss, so they left.

¶ 51 However, Jursich’s concern increased after he spoke with Susan. In that conversation,

Susan related that Moorea was missing under suspicious circumstances. Susan also said that

defendant was curt with her when she asked him where Moorea was. Additionally, Susan told

Jursich that defendant had a history of domestic violence toward Moorea. Jursich, Wells, and

Tehan went back to defendant’s apartment. This time, Moorea’s car was in the parking lot.

Defendant did not immediately answer the door. Then, Jursich noticed that defendant was under

the influence of drugs, to the point that he was sick in Jursich’s presence. Jursich knew that

defendant was lying about dropping Moorea off at work. When Jursich and Wells asked defendant

if he and his two friends were the only ones in the apartment, defendant said that he was not sure.

Then, when the officers asked for permission to look inside for Moorea, defendant blurted that

there was something in his closet that could put him in jail for a very long time. Defendant declared

that he had a crack pipe and cannabis in his apartment, but he refused permission to search for

- 16 - 2021 IL App (2d) 180696

Moorea. By this time, Wells had learned from the neighbor that Moorea had not been seen recently,

and Tehan knew that Portillo’s was closed at that time.

¶ 52 Collectively, the officers knew that Moorea was not at work, her car was in the apartment

building’s parking lot, defendant lied about her whereabouts, and he was not sure how many people

were in his apartment. Further, the officers determined that defendant was under the influence of

drugs, drugs were present inside the apartment, and defendant had a history of violence toward

Moorea. According to Wells, nothing had alleviated his concern for Moorea’s well-being. As in

Carlson, only then did the officers have reason to suspect that Moorea was in danger inside the

apartment. Wells testified that Moorea was their primary concern and so they decided to enter

rather than wait for a search warrant.

¶ 53 Defendant argues that the lack of blood or evidence of a fight militates against any

emergency. However, because we consider the entirety of the circumstances, the absence of

scratches or blood on defendant’s person does not negate the presence of an emergency. See

Rogers, 209 P.3d at 996 (the absence of gunshots or fire, or certain noises or smells, does not

defeat the finding of an emergency).

¶ 54 Also, to the extent that defendant suggests that the officers’ true motive was to look for

drugs, we held in Lewis that the scrutiny of an emergency-assistance search is based on the

objective circumstances of the situation, not on the subjective motives of the officers involved.

Lewis, 363 Ill. App. 3d at 523. Several months after this court’s decision in Lewis, the Supreme

Court of the United States held that an action is reasonable under the fourth amendment,

“regardless of the individual officer’s state of mind,” when the circumstances, viewed objectively,

justify the action. Stuart, 547 U.S. at 404.

- 17 - 2021 IL App (2d) 180696

¶ 55 Moreover, the record does not support defendant’s suggestion. Once inside defendant’s

apartment, the officers confined their search to places where a human could be located. At oral

argument, defendant conceded that the purpose of the search was to locate Moorea. The officers

did not seize any contraband. Accordingly, based on the entirety of the circumstances known to

the officers when they entered defendant’s apartment, we hold that the trial court did not err in

finding that the search was constitutional pursuant to the emergency-assistance exception. Because

we hold that the search was proper under the emergency-assistance exception, we do not address

the State’s alternative argument that the inevitable-discovery rule should apply.

¶ 56 B. Defendant’s Challenges to His Sentence

¶ 57 Defendant next argues that his aggregate 63-year sentence of imprisonment was

(1) unconstitutional and (2) excessive.

¶ 58 1. As-Applied Challenge Under the Eighth Amendment

¶ 59 In Miller v. Alabama, 567 U.S. 460, 465 (2012), the Supreme Court of the United States

held that a mandatory life sentence without parole for those offenders who are under age 18 at the

time of their crimes violates the eighth amendment’s (U.S. Const., amend. VIII) prohibition on

cruel and unusual punishments. Defendant asks this court to extend Miller to persons, like himself,

who were over 18 when they committed their crimes. Defendant contends that he received a

de facto life sentence. See People v. Buffer, 2019 IL 122327, ¶ 41 (a sentence of a juvenile to over

40 years’ imprisonment is a de facto life sentence).

¶ 60 In People v. Harris, 2018 IL 121932, ¶ 61, our supreme court rejected the defendant’s

facial eighth-amendment challenge, declining to expand Miller to apply to adults, like defendant,

who were 18 years or older when they committed their crimes. The court further held that the

defendant had not developed an adequate record in the trial court to support an as-applied Miller

- 18 - 2021 IL App (2d) 180696

challenge. Harris, 2018 IL 121932, ¶ 45 (“The record must be developed sufficiently to address

defendant’s claim that Miller applies to his particular circumstances.”). Defendant concludes that

our supreme court “did not foreclose an as-applied challenge brought by defendants over the age

of 18.”

¶ 61 Defendant recognizes two impediments to our review of this issue. First, in People v.

LaPointe, 2018 IL App (2d) 160903, ¶ 47, this court held that Miller “simply does not apply” to a

sentence imposed on an offender who was at least 18 at the time of his offense. Second, defendant

failed to raise this issue before the trial court.

¶ 62 We adhere to our decision in LaPointe. Here, defendant was 20 years old—within 6 months

of turning 21—when he murdered Moorea. While defendant concedes that he “technically” was

not a juvenile, we note that, by no stretch can he be considered a juvenile when he committed the

murder. Thus, defendant’s argument that the trial court was obligated to consider the factors

enumerated in People v. Holman, 2017 IL 120655, ¶ 46, before imposing a “de facto life sentence,”

is misplaced. 3 Defendant’s reliance on People v. Suggs, 2020 IL App (2d) 170632, is likewise

misplaced. In Suggs, this court noted that a qualifying offender under 21 years of age, who

3 In Holman, our supreme court enumerated five factors related to a juvenile defendant’s

youth and its attendant characteristics that trial courts must consider before sentencing a juvenile

to a life sentence without parole. Holman, 2017 IL 120655, ¶ 46. Here, although the court was not

required to make a finding that the murder was indicative of irretrievable depravity, the evidence

shows that it was. After committing the brutal murder in the presence of the parties’ infant child,

defendant entertained friends in his living room while Moorea’s body was concealed in his

bedroom.

- 19 - 2021 IL App (2d) 180696

committed a first-degree murder, is eligible for parole review after serving 20 years of the sentence.

Suggs, 2020 IL App (2d) 170632, ¶ 34. Specifically, we noted that the legislature changed the

parole statute. Suggs, 2020 IL App (2d) 170632, ¶ 34. We underscore that it is the function of the

legislature, not the courts, to declare the public policy of this state. Phoenix Insurance Co. v. Rosen,

242 Ill. 2d 48, 65 (2011). Consequently, we determine that, if Miller is to be extended to persons

over age 18, it is the legislature that should make that change. See Rosen, 242 Ill. 2d at 65 (if a

modification or change in public policy is desired, the legislature, not the judiciary, must be

appealed to).

¶ 63 We also reject defendant’s argument that the record in the present case is sufficiently

developed that we should decide this issue “in the interests of judicial economy.” Defendant

suggests that the scientific research extant when Miller was decided is outdated and that current

research indicates that Miller should be extended to persons between 18 and 21 years of age.

Defendant includes citations to the various studies upon which he relies. The State argues that the

trial court was the “most appropriate tribunal” to hear defendant’s as-applied constitutional

challenge, because such a challenge depends on the circumstances and facts particular to an

individual defendant.

¶ 64 The State cites People v. Thompson, 2015 IL 118151. In Thompson, the adult defendant

argued that his mandatory life sentence violated the eighth amendment as applied to him, relying

on “evolving science.” Thompson, 2015 IL 118151, ¶ 38. Our supreme court applied the forfeiture

rule, holding that an as-applied constitutional challenge cannot be raised for the first time on

appeal. Thompson, 2015 IL 118151, ¶ 40. We agree with the State that Thompson is applicable to

our facts. While the record in the instant case contains more information concerning defendant

than is contained in the presentence investigation report, the record is devoid of how the “evolved

- 20 - 2021 IL App (2d) 180696

science” upon which defendant relies applies to the circumstances of his case. Our supreme court

noted that how the science applies to a particular defendant’s circumstances is the “key showing”

for an as-applied constitutional challenge. Thompson, 2015 IL 118151, ¶ 38. Accordingly,

assuming, without deciding, that Harris permits an as-applied challenge, we hold that this issue is

forfeited.

¶ 65 2. Proportionate Penalties Challenge

¶ 66 Next, defendant argues that his sentence violates the proportionate penalties clause of the

Illinois Constitution. Ill. Const. 1970, art. I, § 11. Article I, section 11 contains two limitations on

penalties: (1) they must be determined according to the seriousness of the offense and (2) they

must be determined with the objective of restoring the defendant to useful citizenship. People v.

Clemons, 2012 IL 107821, ¶ 37. Here, defendant argues that his aggregate 63-year sentence of

incarceration violates the proportionate penalties clause because (1) the “moral sense of the

community has evolved regarding defendants” under age 21 and (2) the sentence fails to provide

defendant with a “real opportunity to demonstrate growth and maturity or to live a rehabilitated

life.”

¶ 67 Defendant’s first argument is the same as his eighth amendment argument, which depends

upon what defendant identifies as “evolving scientific research.” As noted, the record does not

show how this research applies to defendant’s circumstances. Consequently, we deem this

argument to be forfeited. See Harris, 2018 IL 131932, ¶ 45 (where the defendant is over age 18 at

the time of his offenses, Miller does not directly apply to his circumstances, thus requiring the

record to be developed sufficiently to make a Miller claim cognizable); People v. Figueroa, 2020

IL App (2d) 160650, ¶ 89 (court declined to address as-applied proportionate penalties challenge

where the record was not sufficiently developed).

- 21 - 2021 IL App (2d) 180696

¶ 68 However, in his motion to reconsider the sentence, defendant argued that the aggregate 63-

year sentence would “not afford [defendant] the opportunity for rehabilitation.” Thus, liberally

construing his motion, we conclude that defendant preserved this issue, and we will consider it.

¶ 69 At the sentencing hearing, the court and the parties agreed that the sentence for concealing

a homicidal death must be consecutive to the sentence for first-degree murder. The parties also

agreed that, if an extended-term sentence for first-degree murder applied, the range of that sentence

would be 20 to 100 years. The court found that defendant was eligible for extended-term

sentencing based on defendant’s prior convictions of domestic battery and violation of an order of

protection, both of which he committed against Moorea. However, the court declined to impose

an extended term. Instead, the court sentenced defendant to the maximum nonextended term of 60

years’ incarceration for first-degree murder and a consecutive three-year sentence for concealment

of a homicidal death.

¶ 70 At the hearing on defendant’s motion to reconsider the sentence, defendant argued that the

court failed to consider his mental health issues in mitigation and that his aggregate 63-year

sentence was essentially a life sentence that prohibited rehabilitation or restoration to useful

citizenship. In denying the motion, the court noted that it considered all of the appropriate factors

in aggravation and mitigation at the sentencing hearing. The court also noted that, despite

defendant’s eligibility for extended-term sentencing, the court did not impose an extended term.

The court further noted that, in weighing an appropriate sentence, it considered a psychologist’s

report indicating that defendant continued to present a danger to society.

¶ 71 On appeal, defendant argues that it is “unconstitutional to completely discount

[defendant’s] rehabilitative potential at such a young age, where his 63-year sentence fails to

provide him with a real opportunity to demonstrate growth and maturity or to live a rehabilitated

- 22 - 2021 IL App (2d) 180696

life after his release, should he survive.” Defendant relies on People v. Gipson, 2015 IL App (1st)

122451, comparing himself at 20 with the 15-year-old defendant in Gipson. In Gipson, the

defendant shot the victim in the buttocks, causing injury but not death. Gipson, 2015 IL App (1st)

122451, ¶ 17. The trial court sentenced the defendant as an adult to 52 years in prison. Gipson,

2015 IL App (1st) 122451, ¶ 1. The appellate court held that the statute that required the

defendant’s automatic transfer to adult court, in conjunction with a statutory sentencing scheme

that produced the 52-year sentence, violated the proportionate penalties clause, as applied to the

defendant. Gipson, 2015 IL App (1st) 122451, ¶ 77. In so concluding, the court noted that the

defendant had previously been declared unfit to stand trial, he was not at his “peak mental

efficiency” when the shooting occurred, his mental health issues had never been addressed, and

his impaired ability to process information might have affected his judgment. Gipson, 2015 IL

App (1st) 122451, ¶ 74. In addition, the court noted that the defendant committed a crime in which

“no one died” and that the codefendant, who inflicted worse damage, received a sentence of only

31 years’ imprisonment. Gipson, 2015 IL App (1st) 122451, ¶ 75.

¶ 72 The facts in Gipson are alien to our case. Here, 20-year-old defendant murdered Moorea

by stabbing and bludgeoning her multiple times, and then he concealed the crime. Defendant

admitted perpetrating 10 prior incidents of domestic abuse toward Moorea. Witnesses to such prior

abuse testified to its horrific nature, which included punching a pregnant Moorea in the stomach

and beating Moorea with his fists. At sentencing, the State introduced a recording of a telephone

call between defendant, while he was incarcerated in the county jail awaiting trial, and his sister.

In that call, defendant coolly admitted to his sister that his trial strategy was to blame Moorea, to

deflect responsibility from himself. The court noted that, as an adult offender, defendant’s mental

- 23 - 2021 IL App (2d) 180696

health issues were addressed. The court considered evidence that defendant responded to life

situations with violence.

¶ 73 We agree with the State that People v. White, 2020 IL App (5th) 170345, is apt. In White,

the defendant was convicted of two counts of first-degree murder and one count of concealment

of a homicidal death and was sentenced to natural life imprisonment. White, 2020 IL App (5th)

170345, ¶¶ 4-5. The appellate court rejected the defendant’s contention that the mere fact that he

was 20 years of age when he committed the crimes qualified him as a “youthful offender,” such

that a mandatory life sentence was so disproportionate as to violate the eighth amendment. White,

2020 IL App (5th) 170345, ¶ 19. The court also rejected the defendant’s challenge under the

proportionate penalties clause, holding that the mandatory life sentence neither shocked the

conscience nor was disproportionate to the offenses, given the violent nature of the murders and

the defendant’s culpability as an adult principal in planning, executing, and attempting to avoid

responsibility for the crimes. White, 2020 IL App (5th) 170345, ¶ 29. Here, the evidence showed

a conscienceless defendant to whom the trial court nevertheless granted leniency in not imposing

an extended term.

¶ 74 In sum, defendant fails to persuade us that his sentence is so wholly disproportionate to the

offense that it “shocks the moral sense of the community.” See Gipson, 2015 IL App (1st) 122451,

¶ 69 (to succeed on a proportionate penalties claim, the defendant must demonstrate that the

sentence is degrading, cruel, or “ ‘so wholly disproportionate to the offense that it shocks the moral

sense of the community’ ” (quoting People v. Klepper, 234 Ill. 2d 337, 348-49 (2009)).

¶ 75 3. Excessive Sentence

¶ 76 Lastly, defendant argues that his sentence is excessive. Defendant asserts that the trial court

failed to give proper weight to his (1) childhood, during which his mother committed suicide and

- 24 - 2021 IL App (2d) 180696

he was raised by an abusive alcoholic father, (2) youth, and (3) improving psychological outlook.

Defendant asks this court to reduce his sentence. Reviewing courts have the power to reduce

sentences, pursuant to Illinois Supreme Court Rule 615(b)(4) (eff. Jan. 1, 1967). This power should

be used “cautiously and sparingly.” (Internal quotation marks omitted.) People v. Alexander, 239

Ill. 2d 205, 212 (2010). A reviewing court cannot alter a defendant’s sentence absent an abuse of

discretion by the trial court. Alexander, 239 Ill. 2d at 212. A sentence that is within the statutory

limits will not be deemed excessive unless it is greatly at variance with the spirit and purpose of

the law or manifestly disproportionate to the nature of the offense. People v. Butler, 2013 IL App

(1st) 120923, ¶ 31.

¶ 77 It is well established that a trial court has broad discretionary powers to impose a sentence

and that the court’s sentencing decision is entitled to great deference because it is in a better

position than the appellate court to weigh such factors as the defendant’s credibility, demeanor,

general moral character, mentality, social environment, habits, and age. Butler, 2013 IL App (1st)

120923, ¶ 30. The reviewing court cannot substitute its judgment for that of the trial court because

it would have weighed those factors differently. Butler, 2013 IL App (1st) 120923, ¶ 30.

¶ 78 Throughout his brief, defendant emphasizes his childhood. Defendant was born addicted

and was later diagnosed with depression after his mother’s suicide. He was also diagnosed as

bipolar. Defendant’s father was an abusive alcoholic. As a young adult, defendant was addicted to

heroin. Defendant had also attempted suicide. According to defendant’s letter to the trial judge,

which is included in an addendum to the presentence investigation report, defendant blames the

murder of Moorea on his “horrible childhood” and “horrible way of being raised.” Defendant

claims that he was not given help for his mental disorders. However, the record indicates that he

underwent multiple hospitalizations for those disorders.

- 25 - 2021 IL App (2d) 180696

¶ 79 To support his excessive-sentence claim, defendant essentially restates his Miller

argument, contending that he should be treated as a juvenile for purposes of sentencing. In

LaPointe, this court made clear that Miller does not apply to individuals who are over 18 years of

age when their crimes were committed. LaPointe, 2018 IL App (2d) 160903, ¶ 47. Nothing about

the facts of the instant case requires us to reconsider LaPointe.

¶ 80 Defendant argues that a psychological report shows that, with help, he can change.

However, the report concludes that defendant is at high risk for recidivism. That report also

describes defendant as “unreliable, reckless, irresponsible, has a desire to meet his own needs

above others, and has been involved in criminal activities since a young age which have impacted

his ability to succeed in multiple areas of his life.” The report indicates that defendant experiences

“intense angry feelings most of the time” and that he is “impulsive” and “lacks the ability to control

his anger” effectively. The report also notes that defendant has a “positive attitude” toward

criminal activity and an “unwillingness” to take responsibility for criminal behavior. The report

notes that defendant’s test results showed that he is “impulsive,” manipulates others effectively,

and feels angry and detached from others most of the time. The report indicates that defendant is

likely to engage in “targeted, or planned violence” and that he experiences “a multitude of

thoughts” that “predispose” him to engage in aggressive or violent acts.

¶ 81 The parties agreed that the sentencing limits for defendant’s first-degree murder conviction

were a minimum of 20, and a maximum of 60, years’ imprisonment. Additionally, the court found

defendant eligible for an extended term of up to 100 years. Defendant does not challenge his

eligibility for the extended term. Despite that eligibility, the court elected not to sentence defendant

to an extended term. Under these circumstances, we cannot say that an aggregate 63-year sentence

of incarceration is greatly at variance with the spirit and purpose of the law or manifestly

- 26 - 2021 IL App (2d) 180696

disproportionate to the nature of the offense. Accordingly, we reject defendant’s argument that his

sentence is excessive.

¶ 82 III. CONCLUSION

¶ 83 For the reasons stated, we affirm the judgment of the circuit court of De Kalb County.

¶ 84 Affirmed.

- 27 - 2021 IL App (2d) 180696

No. 2-18-0696

Decision Under Review: Appeal from the Circuit Court of De Kalb County, No. 16-CF- 401; the Hon. Robbin J. Stuckert, Judge, presiding.

Attorneys James E. Chadd, Thomas A. Lilien, and Christopher McCoy, of for State Appellate Defender’s Office, of Elgin, for appellant. Appellant:

Attorneys Richard D. Amato, State’s Attorney, of Sycamore (Patrick for Delfino, Edward R. Psenicka, and Adam Trejo, of State’s Appellee: Attorneys Appellate Prosecutor’s Office, of counsel), for the People.

- 28 -