286 Ill. App. 3d 1034 | Ill. App. Ct. | 1997
No. 3--94--0597
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 1997
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of the 14th Judicial Circuit,
) Rock Island County, Illinois
Plaintiff-Appellee, )
)
v. ) No. 93--CF--441
)
LARRY L. SIMPSON, ) Honorable
) John D. O'Shea,
Defendant-Appellant. ) Judge Presiding
________________________________________________________________
JUSTICE HOLDRIDGE DELIVERED THE OPINION OF THE COURT:
________________________________________________________________
Following a jury trial, defendant Larry L. Simpson was
convicted of the first degree murder (720 ILCS 5/9--1(a)(1) (West
1992)) and aggravated criminal sexual assault (two counts) (720
ILCS 5/12--14(a)(2), 13(a)(1) (West 1992)) of five-year-old Amber
Sutton. The court imposed consecutive sentences of natural life
for murder and 60 years each for the Class X aggravated criminal
sexual assaults (730 ILCS 5/5--8--2(a)(2), 5--5--3.2(b)(2),
(b)(4)(i) (West 1992)).
The issues on appeal are whether the trial court erred in
(1) denying defendant's motion for a mistrial; and (2) imposing
extended term sentences for the Class X offenses. For reasons
that follow, we affirm defendant's convictions and sentences.
FACTS
At trial, the State introduced 79 witnesses who testified
about the May 29, 1993, abduction and murder of Amber Sutton.
Amber's mother, Anna Martin, testified that defendant came to
their home around 5:30 p.m. Amber asked for Martin's permission
to go play with defendant's daughter, Ashley. Martin denied the
request and told Amber she had to come inside to eat. After a
few bites of dinner, Amber was allowed to go back outside to play
with children in the neighborhood. She was never again seen
alive by her family.
Between 6 p.m. and 6:30 p.m., several witnesses saw Amber
and four-year-old Damion Barnett walking with defendant in the
area between Martin's home and an abandoned power house about
seven blocks away. Shelly Webb and Shawn Lee observed defendant
playing with the children in the vicinity of the power house and
then picking up the little girl near a broken window of the
building. About 10 minutes later, they saw defendant walking
away from the building alone.
At 6:55 p.m., police dispatcher Beth VanDyle received two
911 calls. The first reported Damion Barnett missing, and the
second reported that a little boy was found in the parking lot of
Spencer Towers apartments. Damion was unharmed when his mother
picked him up a few minutes later at Spencer Towers.
Between 6:30 p.m. and 7 p.m., defendant arrived at the home
of his friend, Arthur Wilson. Defendant kept his clothes at
Wilson's home. He washed up and then left again. Around 7:15
p.m., defendant was walking with a bundle of clothes in a grocery
bag when he encountered Joe Liddell. Liddell gave defendant
money for liquor and agreed to meet him at the home of their
friend, Oscar Morrison. Defendant threw the bag into some
bushes. He later joined friends at Oscar's, but left on
Liddell's bicycle when the police entered the neighborhood.
Shortly after 10 p.m., Shawn Lee telephoned the police to
report his earlier sighting of the little girl reported missing
on the evening news. He led the police to the power house where
Amber's bloodied and badly beaten body was found. Around the
same time, defendant visited a gas station and then walked to
Jim's Rib Haven. The station attendant, who had been alerted
that the police were looking for defendant, called the police.
At 10:30 p.m., the police apprehended defendant in the restroom
of the restaurant.
Two days later, Liddell recovered the bag of clothes that
defendant was wearing when he was seen with the two children.
Liddell turned the parcel over to the police. Forensic evidence
established that Amber's blood was spattered on the clothing, and
debris from the floor of the power house was on defendant's
shoes. Pathologist Dr. Mary Jumbelic testified that she
performed an autopsy and determined that Amber died from
strangulation and a skull fracture caused by blunt trauma. She
could also have died from bleeding of the vagina, the anus or
internal organs.
Christine Arnold, defendant's girlfriend, testified for the
State as well as the defense. As a witness for the State, Arnold
said she kicked defendant out of her house following an argument
on May 24, 1993. Testifying for the defense, Arnold said that
she and defendant had a normal sexual relationship. On cross-
examination, Arnold stated that defendant enjoyed anal sex. The
prosecutor then asked Arnold what she and defendant had argued
about the day she kicked him out. Arnold responded, "Because I
wouldn't give him no sex and he talked about kidnapping my
daughter."
Defense counsel moved for a mistrial. In chambers, the
prosecutor stated that he had interviewed Arnold on several
occasions, and she had always said that the argument was about
sex. Arnold had never mentioned a threat against her daughter.
Noting the quantity of evidence already presented, the court
denied defendant's motion. The court instructed the jury that
the testimony was improper and that they should disregard it. On
redirect, defense counsel clarified that the daughter Arnold had
referred to was defendant's own child.
Following their deliberations, the jury returned verdicts
finding defendant guilty of murder and aggravated criminal sexual
assault, as charged. The jury chose not to impose the death
penalty. The court subsequently found defendant eligible for
natural life imprisonment for murder. 730 ILCS 5/5--8--1(a)(1)
(b) (West 1992). In addition, the court imposed 60-year,
extended term sentences for aggravated criminal sexual assault.
MOTION FOR MISTRIAL
Defendant first argues that the trial court should have
granted his motion for mistrial because the prejudice caused by
Arnold's testimony could not be cured by the court's
admonishments. The State concedes that Arnold's unsolicited
comment was improper, but contends that defendant has failed to
show that he was prejudiced by it.
Where improper testimony is inadvertently introduced in a
jury trial, the error generally may be cured by sustaining an
objection and instructing the jury to disregard the testimony.
People v. Speight, 153 Ill. 2d 365, 606 N.E.2d 1174 (1992).
Whether a mistrial should be granted in such cases is within the
broad discretion of the trial court. People v. Winfield, 113
Ill. App. 3d 818, 447 N.E.2d 1029 (1983). The trial court's
decision should not be disturbed on appeal unless the defendant
shows that he was prejudiced by the testimony. People v. Mabry,
223 Ill. App. 3d 193, 584 N.E.2d 507 (1991).
In this case, Arnold's non-responsive testimony was clearly
unprovoked and surprised the prosecutor. Before ruling on
defendant's motion for mistrial, the trial judge noted that the
comment carried a high risk of prejudice because, if believed by
the jury, it indicated defendant's intent to kidnap a child. See
People v. Bailey, 249 Ill. App. 3d 79, 616 N.E.2d 678 (1993).
However, the judge denied the motion because of the overwhelming
evidence of guilt already presented. In open court, the judge
admonished Arnold to confine her comments to the questions put to
her and admonished the jury to disregard the witness' reference
to kidnapping. Then, on redirect examination, defense counsel
asked a precise, leading question to clarify that it was
defendant's own daughter that Arnold had referred to. No further
reference was made to the improper testimony.
Based on the vast amount of unmet circumstantial evidence
connecting defendant to the murder, we do not find that the
brief, unsolicited comment by Arnold could possibly have affected
the jury's verdict. See People v. LeCour, 172 Ill. App. 3d 878,
527 N.E.2d 125 (1988). Numerous witnesses saw defendant walking
with the victim in the direction of the abandoned power house
within minutes of her disappearance from home. Defendant was
observed picking up the victim near a broken window of the
building where her body was later found and then leaving alone.
Witnesses testified that defendant subsequently washed himself,
changed clothes, discarded the clothes with the victim's blood on
them, and then drank with friends.
Defendant's consciousness of guilt was further demonstrated
by his reactions as the police closed in on him. See People v.
McDonald, 168 Ill. 2d 420, 660 N.E.2d 832 (1995). When the
police came into the neighborhood where defendant was partying
after the murder, he fled. When the police next caught up with
him at Jim's Rib Haven, defendant tried to hide in the restroom.
Under the circumstances, we conclude that defendant was not
prejudiced by Arnold's reference to kidnapping, any potential
prejudice was cured by the trial court's admonishments, and the
court did not err in denying defendant's motion for a mistrial.
SENTENCING
Defendant next contends that the court lacked authority to
impose extended term sentences for his two aggravated criminal
sexual assault convictions. We disagree.
Section 5--8--2 of the Unified Code of Corrections provides
that a defendant may not be sentenced
"in excess of the maximum sentence authorized
by Section 5--8--1 for the class of the most
serious offense of which the offender was
convicted unless the factors in aggravation
set forth in paragraph (b) of Section 5--5--
3.2 were found to be present. Where the
judge finds that such factors were present,
he may sentence an offender to the following:
(1) for first degree murder, a term shall
be not less than 60 years and not more than
100 years;
(2) for a Class X felony, a term shall be
not less than 30 years and not more than 60
years." 730 ILCS 5/5--8--2(a) (West 1992).
The statute stands for the general rule that where a defendant is
convicted of multiple offenses of varying classifications, only
the offenses within the most serious class may draw an extended
term. People v. Jordan, 103 Ill. 2d 192, 469 N.E.2d 569 (1984).
However, the statute fails to address the situation in which
an indeterminate sentence such as natural life imprisonment is
imposed. A discretionary sentence of life imprisonment is
authorized by section 5--8--1 for first degree murder (730 ILCS
5/5--8--1(a)(1)(b) (West 1992)), but obviously that sentence
cannot be extended pursuant to section 5--8--2(a)(1).
Accordingly, it has been held that an extended term may be
imposed for the most serious conviction other than murder where a
defendant is convicted of multiple offenses and life imprisonment
is imposed for murder. People v. Young, 124 Ill. 2d 147, 529
N.E.2d 497 (1988).
As defendant correctly notes, the rule of Young has not been
applied consistently. Compare People v. Henderson, 142 Ill. 2d
258, 568 N.E.2d 1234 (1990) (where death penalty imposed for
murder, supreme court reduced aggravated criminal sexual assault
sentence to non-extended term), and People v. Askew, 273 Ill.
App. 3d 798, 652 N.E.2d 1041 (1st Dist. 1995) (where life
imprisonment imposed for murder, court reduced armed robbery
sentence to non-extended term), with People v. Spears, 256 Ill.
App. 3d 374, 628 N.E.2d 376 (1st Dist. 1993) (where life
imprisonment imposed for murder, court affirmed extended term
sentence for attempted murder), and People v. Fauntleroy, 224
Ill. App. 3d 140, 586 N.E.2d 292 (1st Dist. 1991) (where life
imprisonment imposed for murder, court affirmed extended term
sentence for armed robbery). However, we find Young well-
reasoned, and we do not believe that our supreme court intended
to overrule Young by reducing the defendant's aggravated criminal
sexual assault sentence in Henderson. Cf. Askew, 273 Ill. App.
3d 798, 652 N.E.2d 1041.
In this case, in addition to murder, defendant was convicted
of two Class X aggravated criminal sexual assaults, for which the
maximum non-extended sentence was 30 years each. 730 ILCS 5/5--
8--1(a)(3) (West 1992). After imposing a natural life sentence
for murder, the court found that aggravating factors were
present, including the victim's age (730 ILCS 5/5--5--3.2(b)(4)
(i) (West 1992)) and the fact that the offenses were accompanied
by exceptionally brutal or heinous behavior indicative of wanton
cruelty (730 ILCS 5/5--5--3.2(b)(2) (West 1992)). Therefore,
applying the statute pursuant to Young, we hold that the trial
court did not err in imposing 60-year, extended term sentences
for defendant's aggravated criminal sexual assault convictions
(730 ILCS 5/5--8--2(a)(2) (West 1992)).
CONCLUSION
The judgment of the circuit court of Rock Island County is
affirmed.
Affirmed.
HOMER, J. concurs; SLATER, J., partially concurs and
partially dissents.
