THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DONALD FORCUM, Defendant-Appellant.
Fifth District No. 5-01-0692
Appellate Court of Illinois, Fifth District
Opinion filed November 7, 2003.
344 Ill. App. 3d 427 | 800 N.E.2d 499
III. CONCLUSION
After reviewing the entire record de novo, we find that the trial court‘s denials of the defendant‘s motions to suppress were against the manifest weight of the evidence. Accordingly, the order denying the suppression of the evidence is reversed. Furthermore, because the defendant was convicted solely upon the evidence adduced at the suppression hearing, the very same evidence sought to be excluded by the defendant‘s motions to suppress, we also reverse the defendant‘s conviction and sentence.
Reversed.
HOPKINS, P.J., and MAAG, J., concur.
Daniel M. Kirwan and Larry R. Wells, both of State Appellate Defender‘s Office, of Mt. Vernon, for appellant.
Michael Wepsiec, State‘s Attorney, of Murphysboro (Norbert J. Goetten, Stephen E. Norris, and T. David Purcell, all of State‘s Attorneys Appellate Prosecutor‘s Office, of counsel), for the People.
JUSTICE DONOVAN delivered the opinion of the court:
Defendant, Donald Forcum, appeals the order of the circuit court of Jackson County, sentencing him to natural-life imprisonment for first-degree murder, 30 years’ imprisonment for attempted first-degree murder, 30 years’ imprisonment for armed violence, and 30 years’ imprisonment for home invasion. On direct appeal to this court, defendant raises three issues: (1) whether a special interrogatory denied defendant a fair trial where the subject of the interrogatory—whether the crime was committed in an exceptionally brutal or heinous manner—was not an element of the offense, (2) whether defendant was denied a fair trial due to the repetition and emphasis of prejudicial evidence, including gruesome photographs, hearsay, the attribution of the decedent‘s mental state, and the presentation of a letter and a taped message during the State‘s closing argument, and (3) whether his convictions for home invasion and armed violence should be vacated because they violate the one-act, one-crime rule. For the following reasons, we affirm defendant‘s convictions and sentences for first-degree murder, attempted first-degree murder, and home invasion, and we vacate defendant‘s conviction for armed violence.
BACKGROUND
This case involves the brutal murder of a young woman, Renee DiCicco, and the savage attempted murder of Renee‘s new boyfriend, Brett Janecke, by defendant, Renee‘s former boyfriend. Defendant and Renee lived together in Carbondale for a period of time during their involvement in the house Renee resided in at the time of her
On Wednesday, June 7, 2000, Renee returned home from a trip to find a 22-page letter waiting for her from defendant. The rambling letter showed defendant‘s anger and hatred toward Renee. In this letter, defendant called Renee names such as tramp, liar, whore, enchantress, and harlot. Defendant expressed his anger over the breakup and his feelings of betrayal. Finally, defendant concluded the letter with a warning about what he would do if she attempted to contact him: “[I will] come crashing down upon the heads of *** Brett [and others] with a thunderous vengeance and furious anger and they will know that my name is Houdini because I can disappear and reappear just like magic you see, and no man nor [sic] beast nor [sic] nothing [sic] man-made can either hold or contain me.” After reading the letter, Renee became upset and contacted Brett for comfort. The next day, Thursday, June 8, 2000, Brett arrived in Carbondale to visit Renee.
On Friday, June 9, 2000, Renee worked until 3 p.m. After work, Renee and Brett spent the rest of the afternoon canoeing and swimming. They ate dinner at Quatro‘s Pizza and then picked up a bottle of wine. They returned to Renee‘s apartment around 11 p.m., consumed some wine, talked for a while, and then fell asleep on the couch.
Brett testified that during the early morning hours of Saturday, June 10, 2000, he woke from his sleep on Renee‘s couch to Renee asking, “What are you doing, Donnie?” Prior to this, Brett had not heard any knocking at the door or heard any sounds of a break-in. Brett got up off the couch and saw the arm of someone in the apartment. The intruder told Brett, “Now you get to call me a psycho pussy to my face.” Brett recognized the voice to be the same as the voice that had left the threatening messages on his answering machine. At that point, an object hit Brett twice on the side of his head. He fell to the couch with his knees on the cushions, his hands on the back of the couch, and his back to defendant. Seconds after his fall onto the couch, an object flashed in front of Brett‘s face, and he reached out to grab it.
Brett then heard Renee ask: “Am I going to die now? Am I going to die now?” To which he heard defendant respond, “Yes, you‘re going to die now, [b]itch.” Brett then heard a gurgling noise coming from the direction of Renee. Renee‘s hand, which had been holding Brett‘s toe, went limp. Defendant then walked to where Brett lay, hit him on the head, and stated, “Told you not to fuck with me, you son of a bitch.” Brett heard defendant drag Renee into another part of the house. Brett was unable to move because he was lightheaded from blood loss.
Brett testified that he then heard defendant return to where he was lying. Although Brett was conscious, he was unable to move, due to his injuries. Defendant started slashing at Brett‘s neck with the knife. Brett lay on the floor, taking the pain and unable to move. Defendant finally stopped cutting into Brett, walked to another part of the room, and then moments later walked back to Brett and said, “I‘ll see you in hell.” Defendant then walked out the back door.
Renee‘s neighbor, Cecilia Potter, testified that while she was sitting in her living room, she heard banging and crashing coming from Renee‘s house. Cecilia and her mother ran outside to see what was happening and observed the walls of Renee‘s house shaking and items falling off of Renee‘s porch and heard what sounded like people stomping around inside. They heard Renee scream and then silence. They ran inside and called 9-1-1.
Officers responded to the 9-1-1 call. Inside Renee‘s apartment, the officers found Brett lying on the floor. At first, they thought he was dead, but he mumbled and they realized he was still alive. Before the ambulance arrived to take Brett to the hospital, Brett told one of the officers that the attacker had mail at the apartment with his name on it. The officer followed a trail of blood that led them to Renee‘s bedroom. Officers found that a full-length mirror attached to the wall near the entrance to Renee‘s bedroom was shattered and there were blood smears on the wall. Renee‘s dead body was lying on her bed. She
Renee had numerous deep, gaping defensive cuts on her forearms and hands. She had cutting wounds on her right shoulder, bruises on her thighs, a stab wound on her foot, and multiple deep-cutting wounds on her face and thighs. Defendant had made multiple slashes with his knife across the soft tissues of Renee‘s neck, which had sliced all of the flesh around Renee‘s neck except for one small, one-inch section in the back of her neck. Defendant‘s knife cut through Renee‘s skeletal muscle in her neck, her voice box, her windpipe, and the two jugular veins on either side of her neck. The knife nicked the bone of her spine. Renee died of blood loss from the multiple cutting wounds that she had received to her face, neck, chest, and extremities.
There were no signs of forced entry at Renee‘s apartment. In the living room, police found a large pool of blood, clumps of Renee‘s hair on the floor, and splatters of blood on the television, couch, and walls. A blood trail with drag marks led back into Renee‘s bedroom. A Band-Aid box and Band-Aid wrappers were on the floor covered in blood and fingerprints. A blood trail led into the bathroom. The floor and vanity in the bathroom were covered with blood drops. There was also an open box of matches and a can of paint thinner. Defendant‘s latent fingerprints were found on the paint thinner. Brett testified that prior to his falling asleep that night, the blood-covered Band-Aid box had not been lying on the living room floor and the matches and paint thinner had not been present in the bathroom. In the kitchen area, there was a trail of blood leading toward the back door to the back porch area of the house, and the officers found defendant‘s bicycle outside, near the back door.
Investigators searched defendant‘s residence and found a used Band-Aid on his dresser. In addition, they found a bloodstain in the sink area of his bathroom. They collected defendant‘s boots, which were found on a deck outside his home. A DNA test of a portion of one of the shoelaces from his boot revealed a bloodstain that contained a mixture of DNA profiles. A DNA profile consistent with Renee‘s DNA was the major contributor to the bloodstain. Later on the same day of the attack, defendant was arrested and processed at the Jackson County jail. A jail nurse noticed a cut on one of defendant‘s index fingers and multiple abrasions on defendant‘s arms and back. The jailer who booked defendant also noticed that defendant had several scrapes on his back and under his arms, scratches on his legs, and a big cut on his index finger which was still freshly bleeding.
One of defendant‘s roommates testified that she saw defendant leave the house at approximately 10:30 p.m. on June 9, 2000. Defendant stated that he was going to a bar called The Cellar, in Carbondale. Defendant did not have a car but had access to a roommate‘s bicycle that defendant frequently used for transportation.
Several witnesses testified that they saw defendant at The Cellar after 10 p.m. None of them saw any cuts or bandages on defendant‘s hands at that time. Defendant left The Cellar around midnight. His roommate testified that he saw defendant return home about 12:30 a.m. and leave a short time later with a gym bag. Defendant returned to The Cellar at approximately 12:50 a.m. and left again sometime before closing.
Following a jury trial on May 25, 2001, defendant was convicted of first-degree murder, attempted first-degree murder, armed violence, and home invasion. The jury also found that the State had proved beyond a reasonable doubt that defendant had committed the offenses by exceptionally brutal or heinous behavior indicative of wanton cruelty. As a result, the trial court sentenced defendant to an extended term of natural-life imprisonment for first-degree murder, 30 years’ imprisonment for attempted first-degree murder, 30 years’ imprisonment for armed violence, and 30 years’ imprisonment for home invasion.
ANALYSIS
Special Interrogatory
Defendant first argues that the court and the prosecutor violated the separation-of-powers doctrine by altering the elements of the offense of first-degree murder and violated the prohibition against ex post facto laws by the use of a special interrogatory.
Prior to the May 2001 trial, the State filed a notice of intent to seek an extended-term sentence. The State alleged that the offense charged in the information had been accompanied by exceptionally brutal and/or heinous behavior indicative of wanton cruelty. At the time of the instant offenses, the brutal or heinous character of a crime was not an element of any charged offense but was a matter for judicial
This court must first determine whether
The defendant in Thurow was charged, under
As a part of its analysis in Thurow, the court found that
“There is no indication here as to the evidentiary standard that is to be applied in making the household-member determination. Under
section 9-3(f) , this finding could be made by a preponderance of the evidence. However, it also could be made based upon proof beyond a reasonable doubt. Under Apprendi, a finding, based upon a preponderance of the evidence, that the victim was a member of defendant‘s household could not form the basis for an enhanced sentence. As noted, such a procedure would be unconstitutional. However, there is no violation if this determination is made beyond a reasonable doubt. Because this latter, constitutionally correct procedure is allowed bysection 9-3(f) , it cannot be said that there is no set of circumstances under which the statute would be valid. See In re C.E., 161 Ill. 2d [200,] 210-11[, 641 N.E.2d 345, 350 (1994)].Section 9-3(f) is not unconstitutional on its face. Accordingly, we reject defendant‘s contention thatsection 9-3(f) is void ab initio.” Thurow, 203 Ill. 2d at 368, 786 N.E.2d at 1028.
Apprendi does not require that
We find the recently decided cases of People v. Crespo, 203 Ill. 2d 335, 788 N.E.2d 1117 (2001), and People v. O‘Quinn, 339 Ill. App. 3d 347, 791 N.E.2d 1066 (2003), to be instructive. In Crespo, the Illinois Supreme Court held that a 75-year, extended-term, prison sentence based on the brutal and heinous nature of the crime was not error. On rehearing, the defendant asked the supreme court to vacate his extended-term sentence because the circuit court had not complied with Apprendi. In a supplemental opinion filed upon the denial of
In O‘Quinn, we held that the State‘s use of a special interrogatory to determine the age of the victim beyond a reasonable doubt did not violate any of the defendant‘s constitutional rights. O‘Quinn involved the prosecution of a defendant for the murder of a 13-month-old child.
Based on Crespo and O‘Quinn, we hold that the court did not err in the allowance of the use of the special interrogatory. In fact, we find the facts in our case make it easier to reach this conclusion compared to Crespo, where the jury did not even find the element of brutal or heinous behavior beyond a reasonable doubt and the Illinois Supreme Court still found there to be no prejudicial error. In our case, the element of brutal or heinous behavior was found by each and every juror. We conclude that the court was acting in its express authority in allowing the use of the special interrogatory and that the interrogatory caused no harm or prejudice to defendant. See People v. Testin, 260 Ill. App. 3d 224, 235, 632 N.E.2d 645, 652 (1994) (“Although the use of special interrogatories in criminal cases is not favored, they have been used without harm or prejudice to the defendant“); see also United States v. Ross, No. 99 CR 469 (N.D. Ill. March 22, 2002) (memorandum opinion and order) (since the decision in Apprendi, federal district courts have proceeded by submitting special interrogatories to the jury for a determination of drug type and quantity). In order to comply with the mandate of Apprendi, it was imperative that the State have the jury find the age of the victim beyond a reasonable doubt. Had the State not done so, upon sentencing, defendant may not have been eligible for an extended-term
Additionally, defendant claims that the court and the prosecutor violated the prohibition against an ex post facto application of the law “by adding an element of the offense at trial.” Defendant argues that because the ex post facto prohibition prohibits the legislature from retroactively altering the definition of a crime or increasing the punishment for a criminal act, his case should have been governed by the law in effect at the time of the offense.
As a result of Apprendi, the Illinois legislature amended the extended-term statute. Pub. Act 91-953, § 10, eff. February 23, 2001 (amending
An ex post facto law is one that is retrospective, affects substantial rights, and disadvantages the defendant. Miller v. Florida, 482 U.S. 423, 430, 96 L. Ed. 2d 351, 360, 107 S. Ct. 2446, 2451 (1987). A defendant does not, however, have a “vested right” in the modes of procedure used at his trial. Miller, 482 U.S. at 430, 96 L. Ed. 2d at 360, 107 S. Ct. at 2451; Dobbert v. Florida, 432 U.S. 282, 293, 53 L. Ed. 2d 344, 356, 97 S. Ct. 2290, 2298 (1977); People v. Felella, 131 Ill. 2d 525, 536, 546 N.E.2d 492, 497 (1989). The ex post facto clause does not limit the legislature‘s control of remedies or modes of procedure, so long as they do not affect matters of substance. Beazell v. Ohio, 269 U.S. 167, 70 L. Ed. 216, 46 S. Ct. 68 (1925).
Defendant alternatively argues that this court should reverse because the legislature did not provide for special interrogatories to be given to the jury during the guilt-innocence phase of the trial. Defendant relies specifically on the fact that special interrogatories are not favored in the law. See People v. Ruppel, 303 Ill. App. 3d 885, 708 N.E.2d 824 (1999); People v. Testin, 260 Ill. App. 3d 224, 632 N.E.2d 645 (1994). Defendant argues that the aggravating factor could have been submitted to a jury in a bifurcated approach wherein the jury would not have been given the special interrogatory until after he had been found guilty of the offense of murder.
Although the legislature did not specifically authorize the use of special interrogatories at the guilt phase, the legislature also did not provide for a bifurcated sentencing proceeding similar to death penalty proceedings. See
Finally, on the use of the special interrogatory, defendant argues that the trial court and the prosecutor usurped the function of the legislative branch of the government. We reject defendant‘s argument and instead find that the court was simply utilizing the most logical method of complying with Apprendi and also acting in accordance with Public Act 91-953 (Pub. Act 91-953, § 10, eff. February 23, 2001 (amending
The dissent argues that the amendments to Public Act 91-953
”Apprendi is about sentencing only. For Apprendi concerns to come into play, a criminal defendant must already have been found guilty of the underlying crime. A defendant raising an Apprendi claim on appeal is simply complaining that he received a sentence in excess of the normal sentencing range, without the fact or facts necessary to permit such sentence having been proven to a jury beyond a reasonable doubt. See United States v. Sanchez-Cervantes, 282 F.3d 664, 671 (9th Cir. 2002) (rejecting retroactive application of Apprendi because Apprendi ‘only affects the enhancement of a defendant‘s sentence once he or she has already been convicted beyond a reasonable doubt. Therefore, it does not rise to the level of importance of other cases which have been found to apply retroactively). Thus an Apprendi violation does not mean that a defendant is imprisoned on ‘a charge never made *** and never heard by the jury.’ The most that can be said is that an Apprendi violation results in a defendant‘s imprisonment on a charge one element of which—the sentencing enhancement—was not proven to a jury beyond a reasonable doubt.” (Emphasis in original.) De La Paz, 204 Ill. 2d at 436-37, 791 N.E.2d at 495-96.
Similarly, in our case, the use of the special interrogatory asking the jury whether it found that defendant committed the crime by brutal and heinous behavior indicative of wanton cruelty was used only in sentencing defendant to an extended term. It was not used to create an extra element to the underlying offense of murder.
The dissent argues that it is “impossible to reconcile” De La Paz with Apprendi and cites to Justice Scalia‘s opinion in Sattazahn v. Pennsylvania, 537 U.S. 101, 111, 154 L. Ed. 2d 588, 598-99, 123 S. Ct. 732, 739 (2003). 344 Ill. App. 3d at 451. Sattazahn involved the United States Supreme Court‘s analysis of the double jeopardy clause as it pertains to Apprendi. In Sattazahn, the jury returned convictions of first-, second-, and third-degree murder and various other charges. In accordance with Pennsylvania law, the proceedings then moved into a penalty phase. The State presented evidence on one statutory aggravating circumstance that would allow the defendant to be sentenced
On remand, the State filed a notice of its intent to seek the death penalty. The State realleged the aggravating circumstance alleged at the first sentencing hearing and also alleged a second aggravating circumstance. The trial court denied the defendant‘s motion to prevent the State from seeking the death penalty and from adding the second aggravating circumstance on retrial, and the superior court affirmed. Commonwealth v. Sattazahn, 451 Pa. Super. 629, 679 A.2d 257 (1996). The Pennsylvania Supreme Court declined to review the ruling. Commonwealth v. Sattazahn, 547 Pa. 742, 690 A.2d 1162 (1997). Following a second trial, the jury again convicted the defendant of first-degree murder and, this time, imposed a sentence of death. The Pennsylvania Supreme Court affirmed both the verdict of guilt and the sentence of death on direct appeal, finding that neither the double jeopardy clause nor the due process clause barred the State from seeking the death penalty at the defendant‘s retrial. Commonwealth v. Sattazahn, 563 Pa. 533, 763 A.2d 359 (2000).
The United States Supreme Court analyzed what constitutes an element necessary to impose an Apprendi analysis and determined, “If a jury unanimously concludes that a State has failed to meet its burden of proving the existence of one or more aggravating circumstances, double-jeopardy protections attach to that ‘acquittal’ on the offense of ‘murder plus aggravating circumstance(s).‘” Sattazahn, 537 U.S. at 112, 154 L. Ed. 2d at 597, 123 S. Ct. at 740. In Sattazahn, the Court concluded that since the defendant‘s first sentencing jury had not made any findings regarding aggravating or mitigating circumstances, there was no double jeopardy bar to Pennsylvania‘s retrying the defendant. Thus, the Sattazahn Court was only stating that the aggravating factor which was a factor in determining death penalty eligibility—similar to our necessary finding of brutal and heinous behavior in order to impose an extended-term sentence—was to be found after the jury had determined the defendant‘s guilt and had to be proven beyond a reasonable doubt. The Court was not stating that the aggravating factor created an additional element to the crime but, rather, that it created an element for sentencing that had to be found beyond a reasonable doubt by the jury in order to comply with Apprendi.
In the case at bar, the jury found that defendant committed the first-degree murder of Renee. Through a special interrogatory, the jury also found the existence of an extended-term sentencing factor—brutal and heinous behavior—beyond a reasonable doubt. The trial judge then used this necessary finding to sentence defendant to an extended-term sentence. It did not create a new “element” of the crime of murder. The trial judge acted in accordance with Apprendi and its progeny.
Fair Trial
Photographs
Defendant next argues that the court erred in allowing into evidence photographs, based on the gruesomeness, size, and number of the photographs. Although defendant concedes that these photographs may have had probative value, he argues that their value was offset by their prejudicial nature.
The decision of whether to allow the jury to view photographs is left to the circuit court‘s discretion and is reversed only for an abuse of that discretion. People v. Shum, 117 Ill. 2d 317, 353, 512 N.E.2d 1183, 1196-97 (1987). If the photographs are relevant to prove facts at issue, they are admissible and may be shown to the jury unless the prejudicial nature of the photographs outweighs their probative value. People v. Heard, 187 Ill. 2d 36, 718 N.E.2d 58 (1999). Even gruesome and inflammatory photographs may be admitted if sufficiently probative. See People v. Driskel, 224 Ill. App. 3d 304, 314-15, 586 N.E.2d 580, 587 (1991) (more than 50 photographs were allowed because they were probative of the amount of force used and the number of persons who had committed the offense, and in any event, any error was harmless); People v. Simms, 143 Ill. 2d 154, 572 N.E.2d 947 (1991) (the admission of photographs of the victim‘s partially naked body, of stab wounds in the victim‘s neck, and of bloodstains in the victim‘s apartment was not an abuse of discretion because they were probative of the defendant‘s mental state); Heard, 187 Ill. 2d 36, 718 N.E.2d 58 (photographs depicting a female victim with her uterus being held open to show the six- to eight-week-old fetus she had been carrying and another victim who had been shot 17 times were allowed); People v. Armstrong, 183 Ill. 2d 130, 700 N.E.2d 960 (1998) (photographs that showed the shattered pieces of the victim‘s skull were properly admitted to the jury); People v. Anderson, 237 Ill. App. 3d 621, 604 N.E.2d 546 (1992)
In this case, the photographs were relevant and admissible. These photographs were relevant to establish the nature and extent of Renee‘s injuries and the manner in which the injuries had been inflicted, to corroborate the testimony of the officers and crime scene technicians who had found Renee and described the crime scene, and to help the jurors understand the testimony of the pathologist who had performed the autopsy. The photographs of Renee‘s body as it had been discovered at the scene of the crime were probative of the method of force of defendant‘s attack. They informed the jury of the extent and nature of Renee‘s injuries much more accurately than the testimony of the witnesses who had viewed the murder scene. Additionally, despite some gruesome aspects of the photographs, they were relevant to prove defendant‘s eligibility for an extended term under
Defendant argues that People v. Garlick, 46 Ill. App. 3d 216, 360 N.E.2d 1121 (1977), is on point. In Garlick, the defendant alleged error in the admission of a single “gruesome, color photograph of the deceased‘s massive head wound” that went to the jury. Garlick, 46 Ill. App. 3d at 224, 360 N.E.2d at 1126-27. The appellate court found that the photographs served no purpose other than to inflame and prejudice the jury. Garlick is easily distinguishable from the case at bar. In Garlick, the defendant admitted guilt and was only arguing insanity. Therefore, those pictures were not showing the force that had been used or the manner in which the murder had been committed. Unlike Garlick, at issue in this case is defendant‘s guilt and the manner in which he performed his acts. Therefore, we find Garlick inapposite and hold that the trial judge did not abuse his discretion in admitting the photographs.
Hearsay
Defendant next argues that the court erred when it overruled defendant‘s objections to hearsay statements from witnesses Jason Kitner and Shannon Weger, who testified regarding Renee‘s fear of defendant.
Jason Kitner testified to the following:
“Q. [State‘s Attorney:] During that period of time that you knew her, from spring of ‘96 through June the 9th of 2000, do you know of anyone who threatened her?
A. [Jason:] Yes.
Q. Who was that person?
[Defense Counsel:] I‘m going to object, your Honor. I believe this witness‘s knowledge is based on hearsay.
THE COURT: The objection is overruled. Q. [State‘s Attorney:] Who was that person?
A. It was Donnie.
Q. The defendant?
A. Yes.”
Evidence of prior threats of an accused to do violence to the person eventually slain is admissible to show malice and criminal intent. People v. Jayne, 52 Ill. App. 3d 990, 1007, 368 N.E.2d 422, 434 (1977); People v. Wood, 72 Ill. App. 3d 919, 391 N.E.2d 206 (1979). However, in the case at bar, the court erred in failing to grant defendant‘s objection and should have required the prosecution to lay a proper foundation before engaging in this line of questioning. During cross-examination, Jason testified that he had never met defendant and that the source of his knowledge regarding the threat was from Renee. If the court had required the prosecution to lay a foundation, it would have demonstrated that his testimony was not based on his personal knowledge of defendant‘s statement but was based on hearsay that he had learned from the victim. Nevertheless, not every erroneous admission of evidence requires a reversal. People v. Rozo, 303 Ill. App. 3d 787, 790, 708 N.E.2d 1229, 1232 (1999). Rather, a new trial is warranted only where the evidence improperly admitted was so inflammatory that it deprived the defendant of a fair trial or where the improper evidence appears to have affected the outcome of the trial. People v. Swanson, 335 Ill. App. 3d 117, 126, 780 N.E.2d 342, 350 (2002). In this case, the introduction of Jason‘s hearsay statement does not warrant a new trial. The evidence of defendant‘s guilt was overwhelming.
Regarding defendant‘s argument regarding the testimony of Shannon Weger, the record reflects that the following colloquy took place during the direct examination of Shannon:
“Q. [State‘s Attorney:] Now, in the two[—] almost two years that you knew Renee, did you know her to have any enemies?
A. [Shannon:] To my knowledge, the only person that she felt threatened by was Donnie Forcum.
[Defense Counsel:] Objection, your Honor. It calls for speculation and based on hearsay.
THE COURT: Sustained. And the answer will be stricken.
Q. [State‘s Attorney:] Did everyone you encountered [sic] appear to have liked Renee?
A. Yes, very much.
Q. Do you know firsthand of anyone who may have wanted to do her harm?
A. No. Again, just what I said before.”
On cross-examination the following colloquy occurred:
“Q. [Defense Counsel:] You met Donald Forcum one time?
A. [Shannon:] Right.
Q. So you observed Renee and Donald together one time?
A. Right.
Q. And based on that observation, you decided they have had a tumultuous relationship?
A. That observation is based on how Renee behaved at work for the rest of the spring of 2000 and other things that she said directly to me.
[Defense Counsel:] Hearsay?
[THE COURT:] (Affirmative nod.)
[Defense Counsel:] You had no personal knowledge based on what you saw or heard about their relationship?
A. I did not observe them together.
[Defense Counsel:] Thank you. Your honor, I would ask that her answer be stricken with regard to the information—her testimony about the—it being [a] tumultuous relationship and all reference whatsoever to the hearsay matter she testified with regard to.
THE COURT: I‘ll allow it to stay in the record, and the people can consider it for whatever weight it is worth.”
Based on a reading of Shannon‘s testimony, it is apparent that the trial court sustained defendant‘s objection and struck Shannon‘s testimony concerning Renee feeling threatened by defendant. The only objection the trial court overruled concerned Shannon‘s testimony that Renee‘s relationship with defendant was “tumultuous.” The testimony concerning the tumultuous nature of the relationship is not the same as the testimony concerning Renee‘s fear of defendant. Additionally, during direct examination, defendant did not object to the fact that the relationship had been referred to as “tumultuous,” which supports the view that the trial court was within its discretion to overrule defendant‘s objection to the same testimony brought out during cross-examination. Additionally, where there is no reasonable possibility that a jury would have acquitted the defendant if the hearsay evidence had been excluded, admission of the evidence is harmless error. People v. Griggs, 104 Ill. App. 3d 527, 531, 432 N.E.2d 1176, 1179 (1982); People v. Hall, 90 Ill. App. 3d 1073, 1077, 414 N.E.2d 201, 204 (1980). Therefore, even if defendant had succeeded with his argument that the statements were hearsay, which we do not find, any error would be harmless based on the overwhelming evidence against defendant. Therefore, we find this argument has no merit.
Letter/Taped Message
Defendant next argues that the court erred in allowing the prosecutor to replay during closing argument threatening messages
A trial court‘s decision to allow counsel to read from the record during closing argument will not be disturbed absent an abuse of discretion. People v. Pierce, 56 Ill. 2d 361, 364, 308 N.E.2d 577, 578 (1974); People v. Davies, 50 Ill. App. 3d 506, 513, 365 N.E.2d 628, 634 (1977). Additionally, properly admitted evidence may be displayed during closing argument. People v. Eckles, 83 Ill. App. 3d 292, 301, 404 N.E.2d 358, 365 (1980).
We find no error in the court allowing the prosecutor to play the tape and read a portion of the letter. The tape recording and the letter had been admitted into evidence, and the jurors had the opportunity to examine the letter themselves. The prosecutor‘s reading of the letter was accurate and constituted only a small portion of the State‘s closing argument.
Defendant‘s reliance on People v. Ammons, 251 Ill. App. 3d 345, 622 N.E.2d 58 (1993), is misplaced. In Ammons, the court reversed a conviction where the State replayed an 18-minute audiotaped statement in its entirety during closing argument. Ammons, 251 Ill. App. 3d at 347, 622 N.E.2d at 59. The court found that the taped statement was substantially similar to the defendant‘s testimony, so that replaying it in its entirety placed undue emphasis on its contents. Ammons, 251 Ill. App. 3d at 347, 622 N.E.2d at 60. The court also determined that permitting the taped statement to be played during the State‘s rebuttal closing argument “dramatically overemphasized its credibility” and that the error could not be deemed harmless because the evidence of the defendant‘s guilt was not overwhelming. Ammons, 251 Ill. App. 3d at 347-48, 622 N.E.2d at 60.
Unlike the recorded statement in Ammons, which involved the reading of testimony already heard, in the present case, the prosecutor merely directed the attention of the jurors to an exhibit that they had available for examination during deliberations. Additionally, the evidence of defendant‘s guilt was overwhelming. Thus, we hold that the trial court did not abuse its discretion in allowing the playing of the tape recording and the reading of the letter.
Vacation of Sentence
Defendant‘s remaining argument is that his convictions for home invasion and armed violence should be vacated because they violate the one-act, one-crime rule based on People v. King, 66 Ill. 2d 551, 363 N.E.2d 838 (1977). In King, the Illinois Supreme Court stated:
“Prejudice results to the defendant only in those instances where more than one offense is carved from the same physical act. Prejudice, with regard to multiple acts, exists only when the defendant is convicted of more than one offense, some of which are, by definition, lesser[-]included offenses. Multiple convictions and concurrent sentences should be permitted in all other cases where a defendant has committed several acts, despite the interrelationship of those acts. ‘Act,’ when used in this sense, is intended to mean any overt or outward manifestation which will support a different offense. We hold, therefore, that when more than one offense arises from a series of incidental or closely related acts and the offenses are not, by definition, lesser[-]included offenses, convictions with concurrent sentences can be entered.” King, 66 Ill. 2d at 566, 363 N.E.2d at 844-45.
The rule in King was later refined by the Illinois Supreme Court in People v. Rodriguez, 169 Ill. 2d 183, 661 N.E.2d 305 (1996). In Rodriguez, the court, in discussing the definition of “act,” held that it simply means ” ‘any overt or outward manifestation which will support a different offense.’ ” Rodriguez, 169 Ill. 2d at 186, 661 N.E.2d at 306, quoting King, 66 Ill. 2d at 566, 363 N.E.2d at 844-45. The court went on to state that a person can be guilty of two offenses when a common act is a part of both offenses. Rodriguez, 169 Ill. 2d at 188, 661 N.E.2d at 308. Specifically, Rodriguez held that convictions for both aggravated criminal sexual assault and home invasion are proper where the defendant committed multiple acts, despite the interrelationship of those acts.
In the case at bar, the charging instruments show that the murder counts for the death of Renee (counts I, II, and III) and the home invasion count (count V) were based upon the same act—the repeated stabbings of Renee. Similarly, the attempted murder (count IV) and armed violence (count VI) counts were both based upon the repeated stabbings of Brett.
The State concedes that the armed violence count based on the stabbings of Brett should be vacated based on People v. Crespo, 203 Ill. 2d 335, 788 N.E.2d 1117 (2001), wherein the Illinois Supreme Court recently held that the defendant‘s conduct of stabbing a victim three times constituted only a single act and did not support multiple convictions. The court stated that, although the conduct could have supported two separate convictions, one for aggravated battery and another for armed violence, the State did not differentiate between the stab wounds and did not apportion them to separate offenses either in the charging instrument or to the jury at the trial. Crespo, 203 Ill. 2d at 342-45, 788 N.E.2d at 1121-22. Therefore, the State was
We hold that defendant‘s conviction for home invasion does not violate the one-act, one-crime rule for the reasons stated in Rodriguez, and we therefore affirm his conviction for home invasion. We vacate defendant‘s conviction for armed violence for the reasons set forth in Crespo.
CONCLUSION
For the aforementioned reasons, we vacate defendant‘s conviction for armed violence but otherwise affirm the judgment of the circuit court of Jackson County.
Affirmed in part and vacated in part.
CHAPMAN, J., concurs.
JUSTICE KUEHN, dissenting:
I dissented in People v. O‘Quinn, registering my disagreement with the majority opinion that the amendments to the criminal code which are at issue here could be applied to an offense committed before their enactment. People v. O‘Quinn, 339 Ill. App. 3d 347, 791 N.E.2d 1066 (2003). Because my chief concern was over the lack of speed at which Mr. O‘Quinn was prosecuted, I did not fully address why I felt that using the amendments to prosecute the crime of infant murder violated the constitutions’ prohibition of ex post facto laws. Therefore, I respectfully depart again, to fully explain my view. Hereafter, I will abide by the law crafted by my colleagues.
This case involves a long-standing fundamental principle.
Our forefathers, being somewhat concerned about abuses of governmental power, assured themselves that lawmakers could never criminalize and punish conduct with a bill that outlawed it after the fact. They placed a constitutional constraint upon the use of legislation to penalize someone for behavior that was not illegal at the time that it was committed. Our constitutions guard against ex post facto laws and reserve the pains of punishment for those who engage in conduct that society has clearly prohibited in advance. It is deep-rooted that, in America, people are only prosecuted for breaking laws that are already in existence, not for ex post facto bans on some activity.
This case examines whether legislation that empowered Illinois juries to determine the brutality of a particular offense and, based on
The majority‘s resolution of this question finds reason in the following passage of the opinion:
“The amended versions of
section 111-3 of the Code of Criminal Procedure of 1963 andsection 5-8-2(a) of the Unified Code [citation] merely affect a mode of procedure. The amendments clearly did not alter legal rules to make convictions easier, nor did they increase the punishment for a previously committed offense or make any changes to the elements of the offense of murder. The only change made is that the finder of fact must determine the existence of the relevant aggravating factors beyond a reasonable doubt, thereby increasing the burden required of the State.” 344 Ill. App. 3d at 439.
I take issue with this position.
When Mr. Forcum killed Renee DiCicco, the most severe crime that could be charged and submitted to a jury for its determination was a crime composed of three basic elements. The State was authorized to allege and prove beyond a reasonable doubt that:
- Mr. Forcum caused Renee DiCicco‘s untimely death,
- without legal justification, and
- with the intent to kill.
However, because of changes in the law, made after Mr. Forcum‘s extremely brutal behavior, jurors were permitted to determine an added fact that constituted an element of a greater offense and that carried a greater penalty than the offense defined by the three elements of murder. The law‘s amendment allowed the State to seek a jury determination that:
- Mr. Forcum caused Renee DiCicco‘s untimely death,
- without legal justification, and
- with the intent to kill, and
- Renee DiCicco‘s death was accompanied by brutal and heinous behavior indicative of wanton cruelty.
Contrary to the majority‘s view, this change in what a jury could determine about Mr. Forcum‘s guilt was not procedural. There simply cannot be any more substantive a change in the law than a change to the list of matters that a jury must decide to determine the extent of a person‘s guilt. The jury trial guarantee promises that a jury must test every accusation made against an accused. United States v. Gaudin, 515 U.S. 506, 510, 132 L. Ed. 2d 444, 450, 115 S. Ct. 2310, 2313 (1995). Here, the list of accusations to be decided was changed after the criminal conduct had already occurred. The very substance of what this defendant could be charged and prosecuted with changed. And the defendant‘s exposure to punishment changed as well.
The majority‘s suggestion that the only change in the law benefited Mr. Forcum, by increasing the State‘s burden, is misplaced. The harm done by the statutory amendments is manifest. Mr. Forcum had to defend against an additional element of criminality, an element that enhanced his penalties, an element that could not have been tried before a jury and, therefore, could not have enhanced punishment, at the time that Mr. Forcum took a human life. No one could be constitutionally punished with an enhanced sentence at the time that this murder was committed. People v. Swift, 202 Ill. 2d 378, 379, 781 N.E.2d 292, 292 (2002).
While it is true that the amendments do not change the elements of the crime of murder, as that crime was defined at the time of this offense, the amendments do enact an additional element that, if proven beyond a reasonable doubt to a jury, proves the commission of a crime more egregious than murder. Accordingly, the amendments allow the State to establish guilt for additional conduct that warrants greater punishment than murder. It is difficult for me to view such a change as a simple matter of procedure rather than an enactment of a substantive change to the criminal code. In effect, the amendments empower the State to prove the commission of more evil conduct than the conduct necessary to commit murder and to punish those who commit it more severely. Such legislative authority having been given after the fact would seem to offend the protection provided by the ex post facto prohibition against outlawing and prosecuting conduct after the fact.
The majority views the brutal and heinous finding as “solely an element of sentencing.” 344 Ill. App. 3d at 440. This misapprehends the difference between crime and punishment. The jury finding authorized by the legislative changes, a finding that exposed this
The majority thinks it finds support for its view in language from a recent Illinois Supreme Court opinion. People v. De La Paz, 204 Ill. 2d 426, 435-37, 791 N.E.2d 489, 495-96 (2003). It points to language in De La Paz that says:
”Apprendi is about sentencing only. For Apprendi concerns to come into play, a criminal defendant must already have been found guilty of the underlying crime. *** The most that can be said is that an Apprendi violation results in a defendant‘s imprisonment on a charge one element of which—the sentencing enhancement—was not proven to a jury beyond a reasonable doubt.” De La Paz, 204 Ill. 2d at 436-37, 791 N.E.2d at 495-96.
I cannot take this to mean what the majority thinks it means. Indeed, outside the realm of Apprendi, and a determination of its prospective application, our high court would never countenance a person‘s imprisonment when the State had failed to prove an element of the crime charged. However, if my colleagues are correct, it is impossible to reconcile this passage with what the people who wrote Apprendi v. New Jersey have to say about it.
Justice Scalia recently noted:
“Our decision in Apprendi v. New Jersey [citation] clarified what constitutes an ‘element’ of an offense for purposes of the Sixth Amendment‘s jury-trial guarantee. Put simply, if the existence of any fact (other than a prior conviction) increases the maximum punishment that may be imposed on a defendant, that fact—no matter how the State labels it—constitutes an element[] and must be found by a jury beyond a reasonable doubt. [Citation.]
Just last Term we recognized the import of Apprendi in the context of capital-sentencing proceedings. In Ring v. Arizona [citation], we held that aggravating circumstances that make a defendant eligible for the death penalty ‘operate as “the functional equivalent of an element of a greater offense.“’ [Citation.] That is to say, for purposes of the Sixth Amendment‘s jury-trial guarantee, the underlying offense of ‘murder’ is a distinct, lesser[-]included offense of ‘murder plus one or more aggravating circumstances’ ***.” (First emphasis added; later emphasis omitted.) Sattazahn v. Pennsylvania, 537 U.S. 101, 111, 154 L. Ed. 2d 588, 598-99, 123 S. Ct. 732, 739 (2003).
This defendant was properly convicted of the “distinct, lesser[-]included offense” of first-degree murder. He was not properly convicted of the “greater offense” of brutal and heinous murder indicative of wanton cruelty because that offense did not exist until it was created by our legislature in February of 2001 by the passage of
For these reasons, I respectfully dissent.