Lead Opinion
delivered the opinion of the court:
Defendant was convicted by a jury of the offenses of murder (Ill. Rev. Stat. 1989, ch. 38, par. 9 — 1(a)), obstructing justice (two counts) (Ill. Rev. Stat. 1989, ch. 38, par. 31 — 4(a)), and concealment of a homicidal death (Ill. Rev. Stat. 1989, ch. 38, par. 9 — 3.1(a)). She appeals her convictions and her sentence of natural life without parole for the murder conviction. We affirm.
Before discussing the facts and issues in this bizarre and highly publicized case, we must first dispose of defendant’s motion to supplement the record with a book about the investigation and trial of this case authored by the trial prosecutor, Don W. Weber, and a newspaper reporter covering the trial for the St. Louis Post-Dispatch, Charles Bosworth. (D. Weber & C. Bosworth, Jr., Precious Victims (1991).) Alternatively, defendant requests this court to remand this cause to the trial court for a hearing so that the book can be made a part of the record on appeal. In reply to the State’s objection to the motion, the defendant also urges this court to take “judicial notice” of the book.
Defendant alleges in her motion to supplement the record that the first publication and printing of the book occurred in October 1991, after the record on appeal and defendant’s brief were filed in this court. In her post-trial motion, defendant raised the issue that the assistant State’s Attorney (prosecutor) was writing a book about the trial. The prosecutor admitted at the hearing on the post-trial motion that he had thought about and discussed writing the book with Charles Bosworth, Jr., during the trial; that he and Bosworth agreed to the project a week after the trial had ended; and that he signed a contract with the publisher to write the book a week before the sentencing hearing. The State’s Attorney, William Haine, stated: “[I] was in on all discussions involving trial strategy, witnesses, arguments, argument to the court and to the jury. And at no time did a book come up.”
Defendant claims that the book would show a conflict of interest by the trial prosecutor, prosecutorial misconduct, undisclosed discovery violations, and possible perjury by police witnesses. Defendant exhorts this court not to be “the only three people in the State who are forbidden to consider or know the contents of the book” and to do “poetic justice.” Finally, defendant feels that “[i]t is ludicrous for the State to suggest that this Appellate Court should stick its head in the same [sic] like an ostrich.”
“Material omissions or inaccuracies or improper authentication may be corrected by stipulation of the parties or by the trial court, either before or after the record is transmitted to the reviewing court, or by the reviewing court or a judge thereof. Any controversy as to whether the record accurately discloses what occurred in the trial court shall be submitted to and settled by that court and the record made to conform to the truth.” (134 Ill. 2d R. 329.)
In construing Rule 329, the supreme court said:
“Rule 329, as the Committee Comments demonstrate, is a very broad provision whose object is to allow the record on appeal to be amended to correct inaccuracies, supply omissions, correct improper authentication, and settle controversies as to whether the record on appeal accurately discloses what occurred at trial.” (People v. Chitwood (1977),67 Ill. 2d 443 , 447,367 N.E.2d 1331 ,1333.)
Rule 329 is not to be "used as a vehicle for introducing additional evidence into the record.” (People v. Miller (1989),
The closest precedent that this court could find is People v. Sheridan (1977),
In addition, this court cannot consider the contents of the book under the doctrine of “judicial notice.” A court may take judicial notice of “that which everyone knows to be true.” (People v. Snulligan (1990),
This court cannot amend Supreme Court Rule 329 or stretch the doctrine of “judicial notice” beyond recognition simply because we have a “unique opportunity” or because this case may have received more publicity than the average case. It is often forgotten that the State is also entitled to fair treatment and justice, and that the State must be given the opportunity to rebut and defend against the serious charges leveled by defendant. We appreciate defendant’s concern for judicial economy by settling all issues now rather than in future proceedings, but we are not so concerned with judicial economy that we totally ignore all the laws, rules, and procedures developed to protect all the parties involved in the litigation.
Furthermore, there is nothing in the record to assure the accuracy and veracity of the statements made in the book. Those matters and the weight they are to be given have to be determined in proper proceedings
The defendant’s motion to supplement the record falls outside the ambit of Rule 329, and the book is not admissible under the doctrine of judicial notice. Therefore, defendant’s motion to supplement the record is denied.
Even though the contents of the book cannot be considered in this case, we still must resolve the issue as to whether the fact that the prosecutor thought about writing a book about the trial he was prosecuting and any discussion he had regarding those thoughts during the trial constitute a per se violation of defendant’s right to a fair trial. We do not think that thoughts that may cross a prosecutor’s mind or discussions about such thoughts, without some showing that the defendant suffered harm, are sufficient to grant a new trial. Simply because a prosecutor, judge, or defense attorney may consider profiting from his or her involvement in a highly publicized trial does not necessarily mean that the prosecutor, judge, or defense attorney has engaged in conduct that violates the Code of Professional Responsibility. (134 Ill. 2d R. 1.1 et seq.) In addition, State’s Attorney Haine stated that he was involved in all phases of defendant’s trial,' and he was unaware of a book in the offing. We could not find anything in the record to indicate that the trial prosecutor or the State’s Attorney conducted himself during the trial in a manner calculated to prejudice the defendant’s right to a fair and impartial trial deriving from the prosecutor’s contemplation of writing a book.
We now present the facts in this long trial. There were, in essence, two murder trials within this trial. Defendant was charged with the murder of her six-week-old daughter, Heather. The facts surrounding the death of Heather, in April 1989, were so similar to facts surrounding the death of defendant’s infant daughter, Loralei, in June 1986, that the trial judge allowed the State to present the evidence surrounding the death of Loralei in order to show defendant’s modus operandi, intent, knowledge, lack of accident or mistake, and her identity in the death of Heather. The State proceeded chronologically in its presentation of the evidence, with the facts surrounding Lora-lei’s death being presented first and then the facts of the victim’s death. Since defendant is only charged with the murder of Heather, we shall reverse the order of discussion and show the facts surrounding the death of Heather before regressing in time to Loralei’s death.
Defendant’s initial version of the events of April 29, 1989, which she related to the police, was that she was at home alone with her 14-month-old son, Randall, and her six-week-old daughter, Heather. Her husband, Robert, was at work. Heather was in a bassinet downstairs and Randall was asleep upstairs. At approximately 10:30 p.m. that evening, she was taking the garbage out, and when she reached the bottom of the porch stairs, she saw a person 10 feet away pointing a gun at her. This person ordered her back into the house. Defendant remembered that as she stepped inside her kitchen door, she was hit on the back of the head and neck area with an unknown object, rendering her unconscious. Defendant did not regain consciousness until her husband awoke her at 11:20 p.m., about 45 minutes later.
Defendant’s description of her assailant to the police was that he was a man of medium build and that he was as tall as the policeman interviewing her. She was unable to determine the intruder’s race because he was wearing a dark ski mask, even though the mask had large circular eye holes. Defendant believed her assailant was a male by the sound of his voice, and she conjectured that he might be white.
Nine months later, when defendant testified at trial, she broke the news that the intruder of April 1989 was the same person who had broken into her home in 1986 and abducted her infant daughter Lora-lei. She knew that the assailant was the same person
Defendant also altered her initial version of the event when she testified at trial that she was uncertain about the exact time that she was knocked unconscious. Detective Mick Dooley had testified, prior to defendant’s testifying, that defendant told him on the night of Heather’s alleged kidnapping that she was knocked out about 10:30 p.m. and that her husband awoke her at 11:15 p.m., 45 minutes later. The nurse who saw defendant at the hospital around 12:35 a.m. that same night corroborated Dooley’s testimony when she testified that the defendant had also told her she was knocked out around 10:30 p.m. The testimony of Detectives Dooley and Rick McCain also established that, in their interview with the defendant at 3 a.m. the morning of April 30, she again reiterated that the incident occurred at approximately 10:30 p.m.
The testimony of Robert Sims, defendant’s husband, established that, when he arrived home from work between 11:12 and 11:15 p.m., he found defendant lying facedown on the kitchen floor. He called her name several times, but she appeared lifeless. He thought she had had a heart attack. He shook her several times and received no response. Robert went to check on the children, but he could not find Heather. He returned to defendant and shook her until, finally, she started groaning. He asked her where Heather was, to which defendant responded, “[I]n there in the bassinet.” She mumbled that when she took the garbage out, “some guy” walked up and told her to go back into the house, and then he hit her. Robert then ran down the hall and leaped up the stairs, with defendant right behind him. They found their son, Randall, asleep upstairs and unharmed. They came back downstairs and searched the house for Heather three or four more times. Defendant finally said, “[W]e have to call the cops,” and gave Robert the number she obtained from the side of the refrigerator.
Detective Dooley, an officer investigating Heather’s disappearance, testified that, at about 12:30 a.m. in the morning after the incident, he took defendant to the hospital, although she appeared to be fine. Defendant did not want to go, but she finally relented and walked unaided from the house to the police car. On the way to the hospital, defendant mentioned a home invasion that had taken place down the street from her home and that her husband was afraid that this kind of thing would happen, apparently meaning a home invasion and kidnapping. Defendant’s condition suddenly degenerated as they approached the hospital, she leaned forward moaning and rubbing the back of her neck. Dooley helped her out of the car and into the hospital, as he was afraid she might fall. He put her into a wheelchair once they were inside.
The nurse who examined defendant that evening testified that she did not see any lacerations, lumps, or bruises, but she did see some redness on the back of the neck where defendant had been rubbing. The nurse had never seen a person who was knocked out for a long time who was not confused and disoriented. Doctor Duk C. Kim, who also examined defendant that night, prescribed an ice bag and some Tylenol for defendant. Dr. Kim thought it “highly unlikely to impossible to correlate what she [the defendant] told me and then the findings [sic].” The doctor was going to discharge her when Detective Dooley insisted upon an X ray. The doctor agreed reluctantly. The X rays were negative. Detective Dooley then took defendant to the police station, where she was interviewed for an hour.
Dr. Mary Case, a forensic pathologist and neuropathologist, testified that a five-minute loss of consciousness is severe and a 45-minute loss of consciousness is “of quite serious concern.” A person who has been knocked out for a period of time would be “woozy” and in a stupor, would recover gradually, and would not be alert 10 minutes after recovering consciousness. According to Dr. Case, that person would have retrograde amnesia and would not remember anything that occurred 5 or 10 minutes or more prior to the blow. It also would be impossible for anyone knocked out 30 to 45 minutes to remember the blow.
The testimony of other police officers established that trained tracking dogs were brought to the Sims home at 11:27 p.m. that evening, but the dogs did not pick up any scent of the intruder. The police investigation revealed that on the night of Heather’s disappearance a neighbor across the street was walking two of her dogs around 10:40 to 10:45 p.m. and then returned to her home and took her other two dogs out. The neighbor did not see or hear anything unusual.
On May 3, 1989, four days later, Heather’s naked body was found in a plastic trash bag in a trash barrel at a riverside park area in Missouri. This park area was just across the bridge from Alton, Illinois, approximately 2.7 miles, or a drive of less than six minutes, from defendant’s home. Witnesses’ testimony revealed that the trash bag was not in the trash barrel at 10:30 a.m., but that the bag was present in the trash barrel at 1 p.m.
The police and the Federal Bureau of Investigation (FBI), through forensic testing, traced the trash bag in which Heather’s body was found to a roll of trash bags still in defendant’s home. According to defendant’s theory, the alleged kidnapper removed only Heather and a trash bag from her home and did not touch or disturb anything else. The supposition is that the intruder then smothered Heather, removed her clothes, put her into the trash bag obtained from defendant’s home, stored her body in a freezer, and dumped her into a barrel in Missouri four days later.
Defendant’s parents, who lived about a four- or five-minute drive from defendant’s home, were away on a trip on the date of Heather’s disappearance. Defendant’s husband called them at approximately 2 a.m. on April 30, 1989, and they told Robert that they would come back that day. Defendant had a key to her parents’ home and had known about their planned trip several days before their departure.
Robert’s sister, Linda Condray, testified that she came over to defendant’s home about 8 a.m. the morning of April 30, just before defendant left to go to her parents’ home. An unexplained gap as to defendant’s whereabouts was presented when defendant contradicted her sister-in-law’s testimony. According to defendant’s testimony, she left her home that morning before her sister-in-law arrived and went to her sister-in-law’s home rather than her parents’ home. Her sister-in-law’s husband, who supposedly helped defendant unload the car, was never called to verify defendant’s story. Defendant’s sister-in-law also testified that defendant and defendant’s husband arrived at her house just before 3 p.m., and that they arrived separately. The police left defendant’s home at approximately 11 a.m. on April 30.
Defendant’s father testified that he first saw defendant, after arriving home from his trip, when he went to Linda Condray’s home after 3:30 p.m. on April 30, 1989. Defendant’s parents’ freezer was almost empty, according to defendant’s aunt, who opened it later that day to get some meat.
Defendant and her husband testified that they were home the morning and the afternoon of May 3, 1989, the day Heather’s body was found, thus asserting they could not have driven to Missouri to deposit Heather’s body in the trash barrel. Defendant’s and Robert’s testimony was not corroborated by any other witnesses, even though both claimed the press had been outside their home constantly since Heather’s disappearance.
Stephanie Werner Cook, defendant’s hospital roommate when Heather was born, testified that defendant told her that three years earlier a masked gunman had
The evidence of Loralei’s abduction, presented by the State, was that at approximately 10:20 p.m. on June 17, 1986, a masked gunman appeared on defendant’s basement stairs. He wore a dark ski mask, a dark short-sleeve t-shirt, and dark pants. Defendant’s dog, a collie, had not barked or given any warning, even though the screen door was locked, had a closer on it, and made a definite loud squeak when it closed. The gunman supposedly entered by this screen door, because a cut had been made in the screen. When the gunman left and defendant heard the squeak of the door, she jumped up and ran after the gunman. Once outside, she saw a “shadowy figure” running down the driveway to the south, and she heard what she thought was someone running on gravel. She yelled and chased after him. The Grays, the neighbors who lived at the end of defendant’s driveway, did not hear her, even though it was a hot summer evening and their windows were open. Mr. Gray was getting a glass of water in the kitchen at about the time of the alleged abduction, and he did not see or hear anything suspicious when he looked over at defendant’s house. Defendant came to their door and requested help. In spite of Mrs. Gray’s pleas to defendant to wait for the police to arrive, defendant insisted on returning to her house to call her husband, who was at work.
The police arrived and brought three trained tracking dogs. The dogs, in spite of their success record, did not pick up any strange scents around the driveway or the road. The next morning, the police brought other dogs to search, again without success.
On the morning of June 18, 1986, the police were to search east of defendant’s home, and divers were going into a pond next to defendant’s property. At that time, Lieutenant Wayne Watson of the Illinois State Police suggested to the defendant that this was a good time for the defendant to go with the police to give a statement, but defendant protested that she did not want to leave the house. According to Lieutenant Watson, defendant said: “[N]o, no, I want to be here when they bring her body up.” She then stuttered and said: “[T]hat is not what I mean. I mean my baby is alive and I want to be here when they bring her on the porch.”
Loralei’s nude body was found on June 24, 1986, about 100 feet north of the rear of defendant’s house near the top of a ravine in a heavily wooded area with dense underbrush. It appeared from the evidence that someone had thrown the body of Loralei off the top of the ravine after coming through defendant’s backyard. The argument espoused by defendant, that the abductor returned to her home sometime after June 17, while the police were investigating Loralei’s disappearance, and, in 100-degree weather, climbed a steep ravine in a woods thick with underbrush to place the child near the top of the ravine, belied logic and reason.
The police recreated the scene of the night Loralei was allegedly kidnapped by having a policewoman lie on the floor as defendant did and, upon hearing the screen door close, jump up and run outside. Another police officer closed the screen door, ran to the back of the house, acted as if he were disposing of Loralei’s body down the ravine, and then ran down defendant’s
No ransom demand was made, and nothing was disturbed in the house in both daughters’ abductions. The killer removed the clothing of both infants. Defendant lived in two different locations at the times of the abductions, and she had an unlisted telephone number on both occasions, so her address was not readily available to the public. Her husband worked swing shifts both times so that it would have been difficult for anyone outside of the plant to know when he was going to be at work. Seven trained dogs with high success rates in tracking unknown persons were unable to detect the scent of the alleged intruder on the two occasions.
Defendant told a co-worker in 1983 that she did not want children: “[Especially not a little girl.- It’s too much trouble.” Defendant’s roommate in the hospital when Loralei was born heard defendant crying and apologizing, while talking on the telephone to her husband, for having a baby girl. Defendant’s husband admitted that defendant had apologized for having a girl, but defendant denied making such apology. Linda Heistand, a friend of defendant, testified defendant had stated that she feared Loralei would be kidnapped, before Loralei disappeared, which testimony was denied by defendant. Several nurses testified that defendant and Robert were not excited or interested in the birth of Heather. Another good friend of defendant, June Gibson, testified that three weeks after Heather’s birth, defendant said she did not know how much longer she could “handle it,” referring to the fact that she slept downstairs with Heather, while her husband and Randall slept upstairs. Defendant also denied this. Defendant’s husband admitted on the witness stand that defendant moved back upstairs with him after Heather disappeared, and before her body was discovered, they had “good” sex. Defendant again denied this.
Following the trial, the jury found the defendant guilty of murder, of obstructing justice, and of concealing a homicidal death. The same jury that convicted defendant determined that the defendant was eligible for the death penalty, but after the hearing on aggravation and mitigation, the jury found there were sufficient mitigating factors to not impose the death penalty. The court then imposed a natural-life sentence on defendant. The defendant appeals and raises numerous issues for consideration. Because of the nature of the issues raised by the defendant, we will not consider these issues in the order raised by the defendant, but we will consider them in the order that they were presented to the trial court.
I. DEFENDANT DENIED FAIR TRIAL
Our first consideration in this appeal is defendant’s contention that she was denied a fair trial by an impartial jury. Under this argument, defendant raises the following subissues: (1) that the court erred in denying defendant’s motion to appoint and to pay for requested experts; (2) that the court and the prosecution did not ensure a trial free from publicity generated by defendant’s case; and (3) that the court erred in denying defendant’s challenges of prospective jurors for cause.
A. MOTION FOR EXPERT WITNESSES
Defendant filed a pretrial motion requesting the appointment of several experts: a trace evidence examiner; a pollster to ascertain the extent and effect of adverse pretrial publicity in Peoria County; a medical consultant; a jury consultant;
A similar motion was considered in People v. Hebel (1988),
Defendant failed to meet the requirements set out in Hebei. Defendant never apprised the trial court who the experts were that she wished to employ, the relevance of their testimony, the necessity of the experts, and the estimated cost to Madison County. For instance, defendant complains that expert testimony was needed to counteract Dr. Case’s testimony that defendant could not have been rendered unconscious for more than five minutes and remember the events immediately preceding the blow, that defendant could not have been oriented and capable of telling her story to her husband and the police shortly after gaining consciousness, and that she could not have remembered the blow delivered. However, defendant does not indicate if an expert exists who could counter Dr. Case’s testimony, who this expert is, what his or her qualifications are, and what this expert would cost.
Additionally, defendant never established her indigency, a prerequisite to the receipt of county assistance under the statute. (Ill. Rev. Stat. 1989, ch. 38, par. 113 — 3(d).) At the motion hearing, defense counsel argued that defendant was unable to afford the hiring of experts. Defense counsel stated that defendant had no funds of her own but admitted that her husband was now back to work. However, defense counsel qualified his admission by stating, “He makes barely enough to eke by.” Defense counsel also asserted that defendant had sold her house and that all available funds have been used already in her defense. While these statements were designed to show defendant’s indigency, we find the statements by counsel to be self-serving and not based on sworn testimony. We also note defendant never filed an affidavit listing her assets and liabilities such as is required before counsel is appointed by the court (Ill. Rev. Stat. 1989, ch. 38, par. 113 — 3(b)), which would have been more persuasive on this issue. Furthermore, defendant employed private counsel to represent her at trial. She also posted cash bail in the sum of $40,000, which was later released to her when she was held without bond following the filing of the charge of murder. This evidence negated her unsupported claim of indigency.
Finally, we note the recent supreme court case of People v. Peeples (1993),
B. PUBLICITY AND SEQUESTRATION OF THE JURY
Defendant contends that the publicity about this case, from its inception and lasting throughout the trial, prevented her from obtaining a fair trial. Specifically, defendant asserts that she was unduly prejudiced by pretrial publicity which was generated with the approval and the encouragement of the prosecutor; by the court’s failure to sequester the jury during trial, to frequently admonish the jurors to avoid media accounts of the trial, and to voir dire the jurors regarding the publicity’s influence on them or to allow the defendant this opportunity. The State does not dispute the fact that this bizarre case generated an extraordinary amount of media attention but argues that defendant received a fair trial by an impartial jury.
The extent of publicity is not as important as what was reported and whether the jurors in this case were influenced by the publicity. After all, “Crimes, especially heinous crimes, are of great public interest and are extensively reported. It is unreasonable to expect that individuals of average intelligence and at least average interest in the community would not have heard of any of the cases which they are called upon to judge in court.” (People v. Taylor (1984),
Initially, we note that defendant requested a change of venue from Madison County, which the State did not oppose. The case was then transferred to Peoria County. The granting of this motion greatly reduced the impact of the pretrial publicity generated in Madison County, and the defendant has not shown how the local media in Madison County prejudiced the Peoria jurors. The next consideration must be whether the publicity in Peoria was prejudicial to the defendant, and, if so, was the jury prejudiced in its deliberations by this publicity and thereby unable to give defendant a fair and impartial trial.
This court has read all of the media reports generated in Peoria and submitted by the defendant, about the case sub judice. Of the reports reviewed, only two newspaper reports and two television broadcasts could possibly be considered prejudicial to the defendant. These reports involved evidence which was excluded by the defendant’s motions in limine. In one newspaper report and the two television broadcasts, it was reported that defendant allegedly had marijuana in her bloodstream after Heather’s abduction. These reports were published during voir dire of the jury. The other newspaper report, published on December 31, 1989, over a week prior to trial, reported that defendant and her husband had failed lie detector tests after Loralei’s abduction, but not in Heather’s alleged abduction. Because of the timing of these prejudicial publicity reports, we
With regard to the publicity which occurred during the trial, the media merely reported the evidence as it evolved, after it was heard by the jury. This publicity cannot be considered prejudicial to the defendant, even if the jury read or heard such summaries. However, there is no evidence that any juror actually violated his or her oath by reading or listening to such media reports.
During voir dire, the court asked the potential jurors several general questions before tendering the jurors to defense counsel and the prosecutor for further questioning. Specifically, the court inquired: (1) whether each juror had read or heard about the case through the media; (2) whether the information each juror had read or heard had caused him or her to form an opinion in this case; and (3) whether each juror could disregard what she or he had read or heard and be fair and impartial. The jurors that were selected all indicated, except for one, Radosevich, that they had never expressed or formed an opinion about the guilt or innocence of defendant; that they had read or heard very little about the case; and that they could be fair and impartial. Defendant compares this case to Dowd, but in Dowd, 8 out of 12 jurors held the opinion that the defendant was guilty and that it would take sworn testimony to change their opinion. (Irvin v. Dowd (1961),
Further, defense counsel also questioned the jurors about their possible prejudice from the publicity, and again, all of the jurors selected denied that this information would influence their decision. In fact, many jurors not selected were excused for cause because of their exposure to publicity and because they had formed an opinion of the case. The defendant has not shown, nor can it be determined from the record, that she suffered prejudice or was denied a fair and impartial trial due to the publicity either before or during her trial.
Defendant next contends that the court erred in denying her motion to sequester the jury. The granting or denial of such a motion is within the sound discretion of the court and is not reversible error if the trial judge gives adequate warnings to the jury not to read or listen to press reports of the trial and no demonstration of actual prejudice is made by defendant. (People v. Brisbon (1985),
Further, the defendant did not raise any question about the adequacy of the warnings until the trial was almost over. Even then, defense counsel’s only concern was that the jury might have heard something inadvertently during recesses. Since counsel never proved or made an offer of proof that the jury actually read or heard anything outside of the evidence adduced in the courtroom, defendant failed to show actual prejudice against her right to a fair trial.
Finally, defendant asserts that there was prosecutorial misconduct on the part of the assistant State’s Attorney in generating publicity. It is true that the police initiated publicity on the advice of the FBI and with the approval of the prosecutor before the body of Heather was
We, of course, can second-guess the trial judge, and it is possible we might have taken some precautionary steps that hindsight affords us, such as warning the jurors more frequently not to read or listen to reports about the case. But how many times must a judge tell a jury that presumably has some modicum of intelligence not to read or listen to media reports about the trial? The trial judge could have excluded the press from the motion in limine hearing concerning evidence of marijuana in defendant’s blood, but such exclusions usually result in more publicity and false reports. We find, therefore, that the publicity generated did not have an adverse influence on the jury; to hold otherwise would be pure speculation and contrary to the record.
C. DENIAL OF CHALLENGES OF JURORS FOR CAUSE
Defendant asserts that the court erred in denying her challenges for cause of four jurors. After unsuccessfully challenging three of the prospective jurors for cause, she exercised peremptory challenges against those three. As to the fourth juror, which the defendant unsuccessfully challenged for cause, defendant had exhausted all of her peremptory challenges, and this juror was seated. Although defendant mentions in her brief all of the four jurors unsuccessfully challenged for cause, it is only the one juror seated about which the defendant centers her contentions.
Summarily, we find no merit to defendant’s assertion that the unsuccessful challenges to the three jurors which were peremptorily excused by her deprived her of a fair trial. There can be no claim of prejudice if these prospective jurors were not impaneled, because peremptory challenges are not of constitutional dimension and the loss of a peremptory challenge does not constitute a violation of a constitutional right to an impartial jury. (Ross v. Oklahoma (1988),
A court’s refusal to excuse a juror for cause is a matter of discretion. (People v. Seaman (1990),
Defendant first asserts that Radosevich was not a fair and impartial juror because he stated in voir dire that he had an opinion regarding defendant’s guilt or innocence. Radosevich’s responses to the questions of counsel were previously discussed, wherein Radosevich indicated that he had an opinion at a prior time of defendant’s guilt or innocence, but that he no longer held an opinion after seeing how the system worked. Radosevich stated that he believed defendant was entitled to a fair trial and that she was presumed to be innocent.
Additionally, defendant contends that Radosevich should have been excused for cause since he also indicated he would believe a police officer more than other witnesses. The pertinent questions, Radosevich’s answers, and the usual ritual in a criminal trial whereby the juror is rehabilitated were as follows:
“MR. GROSHONG [defense counsel]: We expect to hear the testimony of some police officers. Do you think that by reason of their employment you would give their testimony any more credence or weight merely because of the nature of their employment?
JUROR: Yes.
MR. GROSHONG: Why is that?
JUROR: Well, that’s their job. You know, that’s what they get paid to do, so, you know, I would have to weigh their — what they say greater than another individual that’s, you know— that’s not part of their job.
MR. GROSHONG: Usually the police officers testify on the State’s side of the case, don’t they?
JUROR: Uh-huh.
MR. GROSHONG: Do you think that because the police officers testify on the prosecutor’s side of the case, since you give their testimony greater weight, that that puts some kind of additional burden on the defense to prove her own innocence?
JUROR: No.
MR. GROSHONG: Does it put Paula in a position where she’s already starting out with a black eye in this case?
JUROR: No.
* * *
MR. GROSHONG: Mr. Radosevich, would the failure on my side of the case to call police officers to testify on my side of the case, knowing that the prosecutor will call them to testify, some of them, on his side of the case[,] would that put Paula at a disadvantage in your eyes?
JUROR: No.
MR. GROSHONG: How do you reconcile that with the earlier statement, sir, that you would give more weight to the testimony of police officers?
JUROR: Well, I think a police officer, his statements would be more credible is the only point I am trying to make.
MR. GROSHONG: I take it that you would judge the police officers’ testimony by a standard different from that you would impose on other people?
JUROR: Yes.
* * *
THE COURT: Let me ask you about a police officer’s testimony. I don’t want to put words in your mouth, but some jurors feel that a police officer might have more knowledge in a particular area, say on distances or particular police matters. But if you are instructed that you should treat the testimony of a police officer the same as you treat any other testimony as far as believability or credibility, would you do that?
JUROR: Yes.”
From this colloquy, it is reasonable to infer that the court found Radosevich willing to be a fair and impartial juror.
Defendant cites no authority that holds that Radosevich’s responses automatically disqualify a prospective juror. In People v. Jarosiewicz (1977),
II. PROSECUTORIAL MISCONDUCT
The defendant’s next issue for consideration is presented under what she terms “prosecutorial misconduct.” Under this issue, she presents two subissues: (1) that the court erred in permitting Dr. Case, the pathologist in this case, to testify as an expert witness in neurology, and (2) that the prosecutor’s improper profit motive denied her a fair trial.
A. EXPERT WITNESS TESTIMONY
While it is not entirely an issue of prosecutorial misconduct, the defendant contends that the court abused its discretion in allowing Dr. Case to testify as an expert witness in neuropathology. Her argument of this subissue is twofold: (a) that the doctor was not qualified as an expert witness in this field because she had never treated live patients, and (b) that the doctor’s surprise testimony regarding defendant’s head injury and her related memory constituted a discovery violation. We first address the defendant’s assertion that Dr. Case was not qualified as an expert witness in the field of neuropathology.
A person may testify as an expert where his or her experience and qualifications afford the witness knowledge not common to lay persons and where the testimony will aid the trier of fact in reaching its conclusion. (People v. Jordan (1984),
Here, the record reveals that Dr. Case was qualified to testify as an expert in neuropathology. Dr. Case’s testimony revealed that she completed a two-year residency in this field, and that she was board certified in this specialty. She enumerated her substantial experience, training, and research in this area. Dr. Case further testified that she has published works in the field, has acted as a consultant, and has given a considerable number of lectures and seminars in neuropathology. She is one of the foremost experts in this field. While Dr. Case had not treated live patients, she had examined persons with head injuries, especially in child abuse cases, to determine their cause. Dr. Case’s experience and knowledge qualified her as an expert in neuropathology, and her knowledge could be considered at least equal to, if not greater than, the knowledge of Dr. Kim and the nurse at the hospital, both of whom examined defendant and testified to the effect a blow to the head would have had on defendant.
In addition, Dr. Case’s testimony regarding the effects on memory as a result of unconsciousness from a blow to the head aided the jury in evaluating the defendant’s testimony. While it may be true that most lay persons have some knowledge of the effects that a blow to the head
The second prong of defendant’s argument relates more to the charge of prosecutorial misconduct. This issue, out of all the issues raised, presents the most difficulty to this court. The defendant contends that the testimony of Dr. Case regarding neuropathology was a surprise to her and violated the discovery rules. She claims that she was not advised prior to trial as to the substance of Dr. Case’s testimony regarding her head injury, her ability to function as a result of the injury, and the retrograde amnesia corresponding to extended unconsciousness from a head injury. The defendant claims she was only aware that Dr. Case was being called to testify about the autopsy of Heather, i.e., as a forensic pathologist. Defendant contends that these facts constitute a violation of Supreme Court Rule 412(a)(iv) (134 Ill. 2d R. 412(a)(iv)) and hence reversible error.
Rule 412(a)(iv) provides in pertinent part as follows:
“(a) *** the State shall, upon written motion of defense counsel, disclose to defense counsel the following material and information within its possession or control:
* * *
(iv) any reports or statements of experts, made in connection with the particular case, including results of physical or mental examinations and of scientific tests, experiments, or comparisons, and a statement of qualifications of the expert.” 134 Ill. 2d R. 412(a)(iv).
This whole controversy arose because of the prosecutor’s announcement to the press that he was going to present a “surprise” to the defendant in his case the next day. We are not certain as to the prosecutor’s motives to incur such an unnecessary risk to his case by this announcement. The experienced defense counsel, of course, seized the golden opportunity presented to him by objecting strenuously to the “surprise” in his post-trial motion and on appeal.
This court must now transcend all the trial maneuvering, aspirations of counsel, and personal games that counsel sometimes engage in with their opposition by deciding if reversible error was committed due to the “surprise.” This requires that we review the totality of the circumstances surrounding the testimony of Dr. Case.
Defendant’s counsel never objected at the trial to Dr. Case’s testimony concerning the impossibility of defendant’s story on the grounds of surprise. Defense counsel’s objection at trial was to Dr. Case’s qualifications to testify as an expert in the field of neuropathology because of her lack of experience in treating live persons. Counsel’s objection on the grounds of surprise was first made to the court in a post-trial motion. Counsel never asked on the record before, diming, or after the testimony of Dr. Case for a continuance of any kind. Defense counsel and the prosecutor discuss and argue vague memories, during the post-trial hearing, as to what occurred off the record during the trial concerning a possible request for a continuance. The objection to Dr. Case’s testimony because of the “surprise” only arose after the trial and after defendant’s counsel was preparing his post-trial motion.
We note that the prosecutor disclosed the name of the witness, Dr. Case, and that the witness was an expert in the field of medicine, more particularly in forensic pathology. Second, the prosecutor disclosed that the witness was an expert in neuropathology, and her curriculum vitae was provided to the defendant, wherein her credentials in the field of neuropathology were enumerated. A listing of her published works as to neuropathology and head injuries was a part of this document. Further, defendant had an opportunity to interview Dr. Case, and although it is not apparent that she availed herself of the opportunity to depose Dr. Case for this case, she did depose the doctor for the related juvenile case concerning the custody of the defendant’s son.
Defendant did not claim surprise at the testimony of Dr. Kim and the nurse at the hospital, who examined defendant within hours after the alleged blow, concerning their disbelief of defendant’s statement that she had been struck in the head and knocked out for approximately 45 minutes. Moreover, Dr. Case’s testimony, although more technical than Dr. Kim’s and the nurse’s testimony, was cumulative. It should not have come as a surprise that the prosecutor would attempt to obtain an opinion as to the impossibility or unlikeliness of defendant’s story from every medical and even nonmedical witness called.
The most damaging evidence against defendant’s argument of surprise, other than her failure to make a timely objection, came in two pretrial hearings held five months before the trial commenced, wherein Officer McClain testified in response to cross-examination by defendant’s counsel in both hearings that the State had a doctor who would testify that defendant’s claim of being knocked unconscious was inconsistent with her report of events and, therefore, an impossibility. For some reason, counsel did not pursue the questioning about this witness.
Defendant cites Wakeford v. Rodehouse Restaurants of Missouri, Inc. (1991),
There are numerous criminal cases whereby experts were allowed to testify even when their existence was not fully disclosed or the gist of their testimony was not fully revealed to defense counsel. (People v. Carr (1989),
Defendant was given sufficient time and warning that her story was going to be attacked by expert testimony, as she had five months’ warning from the pretrial hearings, two mentions of the testimony in the prosecutor’s opening statement, and the presentation of Dr. Case’s testimony in the State’s case in chief rather than in rebuttal. When defendant was called to testify, she was prepared and attempted to explain away her statements on the night and morning after the alleged abduction about the length of time she was rendered unconscious. We find that the trial judge did not err in denying defendant’s post-trial motion for a new trial due to Dr. Case’s testimony.
We also note that the defendant cites two prior opinions of this court, People v. Barton (1984),
B. PROSECUTOR’S CONFLICT OF INTEREST
Defendant’s second contention of prosecutorial misconduct is that the prosecutor should have been disqualified, as his agreement to write a book about this case presented a conflict of interest which deprived her of a fair trial. It is the defendant’s position that, because the prosecutor was motivated by profit, she was deprived of a fair trial. We find this contention to be without merit.
In the first instance, we note that we need not consider this argument of defendant, as she fails to cite any relevant authority, in violation of Supreme Court Rule 341(e)(7). (134 Ill. 2d R. 341(e)(7); Britt v. Federal Land Bank Association (1987),
Nevertheless, for a court to disqualify a prosecutor and appoint a special prosecutor, the prosecutor must be interested in the outcome of the case, i.e., either as a private individual or because his office is a party to the action. (Baxter v. Peterlin
III. EVIDENTIARY RULINGS
The next main contention raised by the defendant is that she was denied a fair trial by several of the court’s evidentiary rulings. Specifically, the defendant asserts that the court abused its discretion: (1) in admitting and in failing to limit the State’s evidence of other crimes; (2) in allowing the State to present “reenactment” evidence; (3) in refusing defendant’s surrebuttal testimony regarding the “coaching” of a State’s rebuttal witness; (4) in allowing a State’s witness to testify regarding the defendant’s credibility; and (5) in excluding defendant’s evidence which created doubt as to her guilt. We find that the court’s rulings concerning these evidentiary matters were not an abuse of discretion for the reasons set forth below.
A. EVIDENCE OF OTHER CRIMES
Defendant contends that the evidence presented by the State of the circumstances surrounding the disappearance and death of Lora-lei, defendant’s firstborn daughter, in June 1986, should not have been presented, as it was evidence of another crime and was more prejudicial than probative. Further, defendant argues that this evidence was inadmissible because it did not show that the defendant committed or participated in the murder of Loralei, or even that a crime had occurred. The defendant also argues that, even if this evidence was properly admitted, the evidence should have been limited by the trial court as to the scope of evidence presented. We disagree.
It is well established that evidence of other crimes for which a defendant is not on trial is inadmissible if it is relevant merely to show a propensity to commit crime. (People v. Richardson (1988),
In this case, the evidence presented regarding Loralei’s death in June 1986 can be summarized as follows: At about
We find that this evidence was admissible as reflecting a common scheme or modus operandi in the deaths of Loralei and Heather, and that the common denominator in the deaths was the defendant. In both Heather’s and Loralei’s deaths, the occurrences happened when the defendant was alone and her husband was at work; both occurred at about 10:30 p.m.; no ransom was sought in either alleged kidnapping; no evidence of an intruder was found in either case; the “intruder” took only the two babies and nothing else of value; the “intruder” wore a ski mask and carried a gun in both incidents; both babies were found naked; both victims were females; and both children were found dead in close proximity to the defendant’s home. The evidence of Loralei’s disappearance was admissible because it was substantially similar to the unusual circumstances of Heather’s death. It also revealed the lack of coincidence and the implausibility of the defendant’s explanation of the two cases. Additionally, these common features were sufficient, in and of themselves, to establish a distinctive combination suggesting the work of one person, that person being defendant. People v. Smith (1992),
We find this case is analogous to People v. Hanei (1980),
Further, the defendant’s assertion that the court should not have permitted the quantity of evidence presented regarding Loralei’s death is not well taken. The defendant contends that the court determined it did not have discretion to limit the evidence, which she claims is reversible error. The defendant bases her assertion
In addition, the jury was instructed to consider the evidence of Loralei’s death solely on the issue of the defendant’s intent, knowledge, lack of accident, and modus operandi. By so instructing the jury, the prejudicial impact of this evidence was substantially reduced. (People v. Wolfbrandt (1984),
B. “REENACTMENT” EVIDENCE
The defendant contends that the court abused its discretion in permitting the State to show the jury a videotape of the reenactments of the events surrounding Loralei’s disappearance in June 1986. It is undisputed that the defendant presented a motion in limine in which the defendant sought to have the videotape in question excluded from the jury’s consideration, and that the court granted the defendant’s motion. Subsequently, the videotape was shown to the jury, after the court determined that extensive cross-examination had elicited the existence of the videotape and what the tape contained.
This court has previously ruled that recreation of the scene of a crime is similar to demonstrative evidence, and as such, the admissibility of such evidence is left to the discretion of the court. (People v. Proper (1979),
The defendant’s next contention is that the trial court abused its discretion when it denied the admission of her surrebuttal testimony that the State’s rebuttal witness’ identification of her was coached by the prosecution. However, the defendant actually argues that the State’s rebuttal witness’ testimony should have been excluded because the testimony went beyond the scope of the defendant’s testimony. Specifically, the defendant asserts that the State’s rebuttal witness, Gisela Rasp, testified that she saw the defendant with Loralei at her card shop before the baby’s alleged disappearance, which contradicted the defendant’s testimony that she had not had Loralei out of the house after her birth. The defendant goes on to state that this witness’ testimony, then, exceeded the scope of her testimony and established new evidence that, when Rasp saw Loralei, she was silent and unmoving with an open-eyed stare, thus implying that Loralei was already dead before her disappearance.
The law on permitting surrebuttal testimony is that the court has discretion to refuse to allow this testimony if no new matters were raised in rebuttal. (People v. Williams (1989),
Here, the evidence defendant sought to present in surrebuttal (coaching of the witness) does not counteract the new evidence she asserts was presented in the rebuttal testimony of Rasp, i.e., the implication that Loralei was already dead. Further, the defendant presented the testimony of other witnesses in surrebuttal, wherein they testified that they had called the defendant’s home after Rasp had seen Loralei with the defendant, and that they had heard the baby crying in the background, counteracting Rasp’s testimony. Thus, defendant suffered no manifest prejudice from the “additional evidence” she argues was presented by Rasp.
Additionally, we do not find that, if Rasp's testimony were somehow “coached” as the defendant initially states, the court’s denial of defendant’s surrebuttal testimony for this purpose caused her manifest prejudice. The testimony of Rasp was weak evidence presented by the State to negate the defendant’s testimony that she had not had Loralei out of the house after her birth and prior to her disappearance. Rasp’s testimony added little, if anything, to convict the defendant of the murder of Heather. Therefore, we do not find that the denial of defendant’s surrebuttal testimony was manifestly prejudicial to the defendant, and the trial court did not abuse its discretion in denying this testimony.
D. REBUTTAL TESTIMONY
The defendant also contends that the testimony of the State’s rebuttal witness, FBI Agent Schultz, should have been excluded on the defendant’s motion, as his testimony was opinion evidence and invaded the province of the jury by commenting on the credibility of the defendant. Defendant asserts that the testimony was beyond the scope of permissible rebuttal testimony and was highly prejudicial. The defendant further alleges that the agent’s explanation of why he was in a wheelchair cloaked the agent with valor and invoked sympathy, thereby augmenting the witness’ veracity.
Agent Schultz was called by the State to rebut the testimony of defendant’s husband that he was lied to by the agent about evidence in the FBI’s possession in order to obtain a confession from the defendant. The agent’s testimony explained the circumstances of the interview with the defendant’s husband and revealed exactly what was said to the defendant’s husband to show that the agent did not lie to him. The specific statement by Agent Schultz about which the defendant complains was as follows:
“Well, I told him the two stories regarding the two abductions were totally preposterous and that no jury in their right mind would believe those stories ***.”
Initially, we note that the defendant has waived this issue. Failure to state specific grounds for objection waives that issue for appeal. (People v. Johnson (1991),
Further, even if the issue were not waived, we find the argument meritless. Defendant has offered no cases, and we can find none that hold that comments by another witness such as were made here invaded the province of the jury to determine the credibility of the witnesses. Agent Schultz’s statement was made after the jury had already heard the State’s evidence and the defendant’s evidence. The jury was very much aware, at that time, of the strengths and the weaknesses of the defendant’s explanation of events. Further, given the circumstances under which the statement was made, it appears that the statement was not made to establish defendant’s lack of credibility but was, as the court asserted at trial, an explanation of what the agent said to the defendant’s husband in order to encourage him to obtain a confession from the defendant. The jury was astute enough to recognize the agent’s statement as being his opinion and not a statement of fact. In addition, the defendant asserted during her testimony that several of the witnesses were “mistaken” in their testimony, the inference being that these witnesses also lied. If Agent Schultz’s statement is found to be an invasion of the jury’s province to determine a witness’ credibility, the same reasoning would apply to the defendant’s assertions at trial as well. We find no logical or legal reason to find that Agent Schultz’s statement was prejudicial error.
E. DENIAL OF OFFER OF PROOF
The defendant’s next contention is that the court erred in denying her offer of proof regarding evidence of her innocence. She argues that her offer of proof presented “negative” evidence of innocence.
This offer of proof to support her theory that someone else abducted and murdered her daughter consisted of the following: Joy Hokenson’s testimony that, on May 3, 1989, the day Heather’s body was discovered, she witnessed a man handing a bundle to another person in a car. The bundle she saw was wrapped in a baby afghan, but Hokenson did not see what was inside the bundle. This transference incident occurred at about 8:30 a.m., about a block from the bridge in Alton, Hlinois, which led to the public access area where Heather’s body was found.
The other evidence the defendant asserts should have been admitted was that there were shoe prints found at the site of the discovery of Heather’s body, and these prints were determined not to match any footwear belonging to defendant, her husband, or her parents. The shoe prints were found at approximately 9 p.m. the evening of May 3, 1989, about 40 feet from the trash barrel where Heather’s body was found.
The law is well established that a defendant is entitled to attempt to prove that someone else committed the crime with which he or she is charged, but that this right is not without limitations. (People v. Enis (1990),
The evidence proffered by defendant is too uncertain and remote to be of any probative value. The bundle-transfer evidence occurred almost two to four hours before the body of Heather was even placed into the trash barrel and almost six miles away from the barrel. This incident took place in broad daylight in the middle of a busy intersection of Alton, Illinois. There was nothing to link the man transferring the bundle to the alleged intruder described by the defendant in her testimony. Furthermore, there is no evidence that the bundle contained a baby. We also note that Heather’s body was found in a plastic trash bag and not in a baby afghan. This evidence was totally irrelevant.
Similarly, the evidence of the shoe prints was lacking in probative value. The area where the shoe prints were found was 40 feet away from the trash barrel where Heather’s body was deposited. The trash barrel was only three feet away from the parking lot of the access area in the riverside park. In addition, the trash barrel in which the baby’s body was deposited was near a comfort station, an area which would naturally generate a lot of foot traffic in a public place. There was evidence of other persons being in the park that day. There also was no evidence of when the shoe print was made. The shoe print may have been made at any time before or after the body was left in the trash barrel. The remoteness and uncertainty of this evidence rendered it irrelevant. The court did not abuse its discretion in denying the defendant’s offer of proof of this evidence.
IV. REASONABLE DOUBT
The defendant contends that she was not proven guilty beyond a reasonable doubt. Her argument under this issue is two-pronged: that jurisdiction and venue of the offense were not proven beyond a reasonable doubt, and that she was not proven guilty of the offenses of murder and concealment of a homicidal death beyond a reasonable doubt.
A. JURISDICTION AND VENUE
Defendant argues that the State failed to prove that it had jurisdiction to prosecute her for the offense of murder beyond a reasonable doubt because it did not show that Heather’s murder occurred in this State. Defendant asserts that the presumption arises that the offense of murder occurs where the body is found, in this case in Missouri. Therefore, the State had no jurisdiction to prosecute her in Illinois. Further, the defendant contends that the State did not prove beyond a reasonable doubt that Madison County was where the offense occurred and, therefore, the county of proper venue.
Generally, a person is subject to prosecution in this State if an offense is committed either wholly or partly within the State. (Ill. Rev. Stat. 1989, ch. 38, par. 1—5(a)(1); People v. Holt (1982),
Likewise, venue is a material element of an offense which must be shown beyond a reasonable doubt, i.e., that the county where the prosecution is brought was the county in which the offense occurred. (People v. Gutirrez (1990),
Although Heather’s body was found in Missouri, it was clear that the act of murder did not occur where the body was found. Dr. Case’s testimony established that Heather had died around the time of her disappearance, and that her body was frozen after her death. Heather’s body was discovered in Missouri on May 3, 1989, four days after her alleged abduction. The evidence revealed that the trash bag containing Heather’s body was not placed in the trash barrel before 10:30 a.m. on May 3, 1989, but that the bag was present after 1 p.m.
Further, we find that it was a reasonable inference that Heather was murdered in Alton, in Madison County, Illinois. This inference is supported by the evidence that the trash bag in which Heather’s body was found was taken from the defendant’s home. If an intruder intended to keep the baby alive, there would have been no need for a trash bag to have been taken. We agree with defendant’s argument that the taking of the trash bag was to hide the baby when removing her from the home. It would make no sense, however, to place a live baby in a trash bag, due not only to the possibility of suffocation but also due to the possibility of the baby crying out and calling more attention to the trash bag than just carrying the baby in one’s arms. The jury could have found, and the defendant seems to agree in her argument if you proceed to the logical conclusion of defendant’s supposition, that the killer meant to use the trash bag as a means to hide Heather’s body. The jury could have deduced from the evidence that the baby was dead before it left defendant’s house in the trash bag. This conclusion is consistent with the medical evidence that Heather died by suffocation but that the suffocation resulted from a hand being placed over her nose and mouth and not by simple suffocation which might have resulted from Heather being placed in a plastic bag. The trash bag evidence combined with the medical testimony presented sufficient evidence to infer and prove jurisdiction and venue in Madison County, Illinois, beyond a reasonable doubt.
There is another reason that the jury could find jurisdiction and venue in Madison County, Illinois. Defendant wants us to concentrate on Heather’s body, because of lack of testimony as to the location of the body from April 29, 1989, to May 3, 1989, and to forget all of the rest of the evidence. If, however, the evidence showed that defendant was the murderer, which the jury so found, and we concentrate on the whereabouts of defendant from April 29 to May 3, then we must conclude that the murder of Heather occurred in Madison County, Illinois. The defendant testified that she was in Madison County, Illinois, on the day of April 29, when her husband went to work, and that she stayed in Madison County through May 3. There was corroborating testimony by other witnesses as to defendant’s whereabouts, at least to a portion of the time, on April 29 and April 30. Thus, if proof is sufficient to show that defendant was guilty of or participated in the murder of Heather, then jurisdiction and venue were proven by circumstantial evidence to be in Madison County, Illinois. If the proof was insufficient against defendant to show guilt of the murder of Heather, then jurisdiction and venue, under this reasoning, might not lie in Madison County, Illinois. Of course, if the evidence is not sufficient to prove defendant guilty beyond a reasonable doubt, then the jurisdiction and venue questions are moot.
B. THE OFFENSES
The defendant next contends that the State failed to prove her guilty of the offenses of murder and concealment of a homicidal death beyond a reasonable doubt. The defendant’s argument is concerned primarily with her murder conviction. She asserts that, because the evidence against her was totally circumstantial, all it proved was that she had an opportunity to commit the murder, which was insufficient to prove her guilty beyond a reasonable doubt. She states there is no evidence as to who killed Heather and hid her body. Further, she argues that the State’s evidence does not negate that an intruder committed the crimes. We disagree.
On appeal, a challenge to the sufficiency of the evidence is reviewed under the standard of whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Sutherland (1992),
Here, the evidence which was presented established that the defendant was home alone with her son and Heather on the night of the incident. The defendant was the only witness who testified as to the presence of an intruder. No other evidence was presented that an intruder had been present, i.e., no evidence of disarray was found in the house and no evidence was presented of a forced entry. Even trained police dogs could not support defendant’s claim of an intruder. The only objects removed from the house were Heather and a plastic trash bag. The forensic evidence established that the plastic bag was from the defendant’s home. The evidence revealed that Heather died approximately the same time as her alleged abduction.
Additionally, the defendant’s credibility was undermined greatly throughout the trial. Her testimony that she was knocked unconscious was negated by the nurse at the emergency room, by the examining doctor at the emergency room, and by Dr. Case. Once it became apparent that the defendant could not have been knocked unconscious that evening, the only logical explanation was that she lied, and her failure to tell the truth about the events of her head injury eroded her testimony of there being an intruder, especially when only her testimony established his presence.
When this evidence is considered with the evidence of a similar occurrence which happened three years before to her first daughter, the defendant’s explanations become even more implausible. This was reinforced by the defendant’s testimony at
V. ACCOUNTABILITY JURY INSTRUCTION
The last issue relating to the guilt phase of defendant’s trial is that the jury should not have been instructed on the theory of accountability. She contends that the evidence did not show that there was another person who committed the crimes for whose conduct she was accountable. The defendant argues that the prejudice created by the giving of the accountability instructions was manifested when the jury sent out a communication during its deliberations in which the jury asked: “Under instructions of first degree murder; the first proposition — does the Defendant have to perform the act or only be legally responsible for another person who may have performed the act [as defined on two attached sheets.]” We do not find that the jury instructions were erroneous.
Instructions given to a jury in a criminal prosecution must be read as a whole. (People v. Terry (1984),
At the instructions conference, the court accepted the State’s instruction defining accountability. In addition, the court also accepted the State’s instruction which provided that a person who is legally responsible for the conduct of another can be convicted of the crime even though the other person has not been prosecuted. Both of these instructions were instructions provided under the Illinois Pattern Jury Instructions, Criminal, Nos. 5.03, 5.06 (2d ed. Supp. 1989). The jury was also instructed on the definitions and the issues to be proved by the State for the offenses of murder, concealment of a homicidal death, and obstruction of justice. Out of these instructions, only the issues instruction for concealment of a homicidal death contained the accountability language, i.e., “or one for whose conduct she is legally accountable.” Thus, when considering the instructions as a whole, the jury was instructed only to consider the theory of accountability in relation to the offense of concealment of a homicidal death. Because the evidence presented at trial, although slight, supported the theory that either defendant or her husband concealed the body after Heather’s murder, it was proper for the jury to be instructed on the theory of accountability
We do not agree with the defendant that the jury applied the accountability theory to the offense of murder, as the jury was not instructed to do so. Further, after the jury’s communication to the court, the court responded by stating, “You have been instructed as to the law by the court and I cannot supplement the instructions.” The jury was instructed to determine if the defendant was guilty as a principal in the offense of murder, and it found the evidence sufficient to find the defendant guilty of this offense. We affirmed the jury’s verdict in our foregoing discussion of the reasonable doubt issue. Thus, the giving of the accountability instruction, if erroneous, was harmless error given the sufficiency of the evidence to convict defendant as the principal actor in Heather’s death.
VI. EXCESSIVE SENTENCE
Lastly, defendant, relying on People v. Bivens (1987),
In Bivens, the defendant was sentenced under the felony-murder provision of the statute (Ill. Rev. Stat. 1985, ch. 38, par. 9—1(b)(6)) to natural-life imprisonment pursuant to section 5—8—1(a)(1) of the Unified Code of Corrections (Ill. Rev. Stat. 1985, ch. 38, par. 1005—8—1(a)(1)). The qualifying factor that the Bivens court relied upon in imposing the sentence was that the murder victim was actually killed by the defendant; however, the prosecutor presented his case from the perspective that the defendant was guilty of murder both as a principal and as an accessory. The jury was provided with general verdict forms, so it was unclear whether the jury found the defendant guilty as the principal or as the accessory. Therefore, the appellate court concluded that, if the jury had found the defendant guilty of murder under the theory of accountability, the qualifying factor that it was the defendant who had actually murdered the victim did not apply and a natural-life sentence could not be imposed.
In the instant case, however, the defendant’s sentence was not sought under the same factor as in Bivens but was sought under the qualifying factor that her actions were “accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty.” (Ill. Rev. Stat. 1989, ch. 38, par. 1005—8—1(a)(1).) In fact, the court in Bivens specifically pointed out that “the prosecutor did not contend and the trial court did not find that [the victim’s] ‘murder was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty’ and thus the life imprisonment sentence was not imposed on that basis.” (Bivens,
In reviewing the sentence of a defendant, the standard of review is whether the trial court abused its discretion. (People v. Cox (1980),
The sentencing statute provides that a natural-life sentence can be imposed upon a defendant where the defendant’s conduct is “accompanied by exceptionally brutal or heinous behavior, indicative of wanton cruelty.” (Ill. Rev. Stat. 1989, ch. 38, par. 1005—8—1(a)(1).) The supreme court held in People v. La Pointe (1981),
At trial, the evidence revealed that defendant, or an accomplice, smothered defendant’s six-week-old infant daughter, Heather, placed her naked body in a trash bag, froze the body, and then deposited the body almost four days later in a trash barrel in a park area less than six miles from defendant’s home. Defendant’s parents were out of town, a fact known to the defendant several days before their departure, and it was the State’s theory that Heather’s body had been placed in the defendant’s parents’ freezer until just before the defendant’s parents came home from their trip. (The whereabouts of Heather’s body after 8 a.m. on the morning of April 30, when defendant left her house supposedly to go to her sister-in-law’s home, to the morning of May 3 will always be a mystery unless defendant elects to reveal such. There was nothing that prevented defendant from bringing the body back to her house after the police left at 11 a.m.) Also, defendant’s roommate at the hospital when Heather was born testified that defendant had told her that a masked man had knocked defendant unconscious when she took the trash out and had abducted her other daughter, Lora-lei, three years prior. This story did not coincide with defendant’s description of Loralei’s disappearance and death given to the police in 1986; however, it paralleled defendant’s description of the events of Heather’s death, even though this description was given to the defendant’s roommate six weeks before the incident involving Heather. From the foregoing evidence, it can be concluded that Heather’s death was contemplated at the time of her birth, and that the defendant premeditated and planned Heather’s death so that the defendant would have access to her parents’ freezer to hide the body. Further, the defendant’s ability, alone or as an accomplice, to murder her own six-week-old daughter without provocation is conduct so cold-blooded it cannot be contemplated. It should also be noted that the jury found defendant’s conduct to be exceptionally brutal and heinous when it found her eligible for the death penalty under this qualifying factor; however, the jury found sufficient mitigating factors not to impose this sentence. Thus, the court’s imposition of a sentence of natural-life imprisonment on defendant was not an abuse of discretion.
Finally, we note that in People v. Nitz (1993),
For the foregoing reasons, the judgment of the circuit court of Madison County is affirmed.
Affirmed.
SHONKWILER, J., concurs.
Concurrence Opinion
specially concurring:
I concur in both the reasoning of the main opinion and the result. I write separately, however, to emphasize that counsel
In this case, the prosecutor, Mr. Weber, chose to give an interview to the press in midtrial and characterize Dr. Case’s testimony as a “surprise.” The motive for giving this interview escapes me. The result was an issue on appeal that should have never been an issue.
While I find no fault with the press reporting the interview, I believe that in the future counsel should more carefully consider their remarks and the wisdom of characterizing their own trial ability and strategy in such a self-congratulatory manner.
Notes
Justice H. Lewis participated in oral argument. Justice Maag was later substituted on the panel and has read the briefs and listened to the audiotape of oral argument.