*1 ILLINOIS, Plaintiff-Appellee, THE STATE OF THE PEOPLE OF SIMS, Defendant-Appellant. MARIE PAULA No. 5-90-0287 Fifth District 4, 1993. May Opinion filed *5 HAAG, J., specially concurring. Williamson, Webster, Groshong, Moorman & Groshong, of
Donald E. Falb, Alton, appellant. Haine, Goetten, Attorney, (Norbert State’s of Edwardsville J.
William Norris, Arnold, Stephen Gerry Attorneys Appellate R. all of State’s E. Office, counsel), People. Prosecutor’s for the of the opinion JUSTICE LEWIS delivered the court: (Ill. Defendant convicted a of the offenses of murder by jury 1989, 38, Rev. Stat. ch. par. 1(a)), obstructing justice (two counts) 9— (Ill. 38, par. 4(a)), Rev. Stat. ch. and concealment of a homi 31— (Ill. cidal death Rev. Stat. ch. She par. 3.1(a)). appeals 9— her convictions and her sentence of natural life without for the parole murder conviction. We affirm.
Before discussing facts and issues this bizarre and highly case, publicized we must first of defendant’s motion to dispose supple- ment the investigation record with a book about the and trial of this Weber, case prosecutor, authored the trial Don and a newspaper W. the trial for reporter covering Post-Dispatch, the St. Louis Charles Jr., (D. Bosworth, Bosworth. & C. Precious Al- (1991).) Weber Victims this court to remand this cause to the ternatively, requests trial court for a can made hearing part so that the book be motion, record on appeal. reply objection to the State’s to the urges defendant also this court to take notice” of the “judicial book. alleges Defendant in her motion to the record that supplement first occurred in October publication printing book after appeal the record on and defendant’s brief were filed in this motion, post-trial court. In her defendant raised the issue that the as- writing sistant State’s a book about Attorney (prosecutor) trial. on motion prosecutor hearing post-trial admitted at the writing that he had and discussed the book with thought Bosworth, Jr., trial; agreed Charles he and Bosworth during the ended; a week after the trial had and that he project signed to write the before the sen- publisher contract with book a week Haine, tencing hearing. Attorney, State’s William stated: “[I] witnesses, arguments, all trial ar- involving strategy, discussions at come the court and to the And no time did gument jury. book up.” conflict of interest
Defendant claims that book would show a misconduct, discov- prosecutorial the trial undisclosed prosecutor, violations, ex- possible perjury by police witnesses. Defendant ery are people horts this not to “the three in the State who only court and to do forbidden to consider or know the contents of book” for the defendant feels that is ludicrous “poetic justice.” Finally, “[i]t stick its head in the suggest Appellate State Court should *6 like an ostrich.” same [sic] entirely unique “situation is
Defendant claims The only no case or other is known to exist.” precedent point law to allowing supple for the record authority by cited be Ill. (134 329). Rule 329 2d R. by Supreme mented the book is Court as pertinent This rule states in follows: part or improper omissions or inaccuracies authentication “Material trial or may by stipulation parties by corrected be re record to the court, either before or after the is transmitted thereof. court, reviewing judge or a viewing or court discloses accurately to whether record Any controversy as set in the trial shall be submitted to and what occurred court record made to conform tled court (134 329.) Ill. 2d R. truth.” 329, the court said: construing supreme
In Rule demonstrate, 329, is a the Committee Comments “Rule ap whose is allow record provision object broad very omissions, inaccuracies, supply amended to correct peal be as to authentication, and settle controversies improper correct oc discloses what appeal accurately the record on whether 447, 443, (1977), v. 67 Ill. 2d at trial.” (People curred Chitwood 1331,1333.) 367 N.E.2d evi introducing to be as a additional
Rule 329 is not "used vehicle 981, v. 3d (1989), App. the record.” Miller (People dence into Further, must have a basis 1, 6.) supplementation 548 N.E.2d 163 Ill. 3d (1987), App. v. France (People in the trial court record or contradict 1036) impeach and cannot be used 981, App. 3d (1989), v. Miller 190 Ill. (People contents thereof. with the book Here, record supplementation N.E.2d which, record, would introduce new evidence into the some of if the accurate, defendant’s claims are impeach would and contradict mat- ters of record. precedent closest that this court could find is v. People Sheri (1977), Sheridan,
dan
51 Ill.
3d
In
App.
under the doctrine of “judicial notice.” A court may
judicial
take
no
tice of
everyone
“that which
knows to be true.”
(People Snulligan
204 Ill.
However,
This court cannot amend Supreme Court Rule 329 or stretch the doctrine of “judicial notice” beyond recognition simply because we have a “unique opportunity” because this case may have received more than the publicity average case. It often forgotten State is also entitled to fair treatment and justice, that the State must given the opportunity to against rebut and defend the serious charges leveled by defendant. appreciate We defendant’s concern for *7 judicial economy by settling all issues now rather than in pro- future ceedings, but we are not so concerned judicial with economy that we totally ignore laws, rules, all the and procedures developed to protect all the parties in involved the litigation.
Furthermore, there is nothing in the record to assure the accu- racy and of veracity the made in statements the book. Those matters and the weight are they given to be have be determined in proper proceedings provided law. This court has neither the nor authority the means of making determination, such nor can this court remand this case to the trial court for a when hearing pleadings no have been filed defining the issues to be raised.
The defendant’s motion to the supplement record falls outside the ambit of Rule and the book is not admissible under the doctrine Therefore, supplement motion to the judicial of notice. record is denied. in the contents of the book cannot be considered though
Even case, still must the issue as to whether the fact that we resolve the he thought writing the a book about trial was prosecutor he had dur regarding thoughts discussion those prosecuting any per right the a of defendant’s to a fair ing trial constitute se violation thoughts may prosecutor’s trial. not think that that cross a We do that thoughts, showing mind or such without some discussions about harm, new grant the suffered are sufficient a trial. Sim consider prosecutor, judge, attorney may because a or defense ply highly his in a trial does profiting publicized or involvement attorney or defense necessarily prosecutor, judge, not mean the Respon in of Professional engaged has conduct violates the Code addition, Attorney Ill. 2d et State’s Haine sibility. (134 seq.) R. 1.1 trial,' and he phases he in all of defendant’s stated that was involved in a in could offing. anything of We unaware book find or Attorney that the trial the State’s prosecutor the record to indicate in a during prejudice himself trial manner calculated conducted deriving from the fair and trial right impartial writing a book. prosecutor’s contemplation were, es- in this trial. There long We facts present now sence, charged this trial. Defendant was murder trials within two sur- Heather. facts daughter, with the murder of her six-week-old to facts Heather, April were so similar the death of rounding Loralei, daughter, in June of defendant’s infant surrounding death present the evidence the State judge trial allowed modus to show defendant’s the death of Loralei order surrounding mistake, intent, knowledge, lack accident operandi, proceeded chronologically identity in the death of Heather. State evidence, Lora- surrounding in its with facts presentation the facts of the victim’s being first and then presented lei’s death Heather, charged murder with only death. Since facts and show the surround- we shall reverse the order discussion in time to Loralei’s death. ing regressing death of Heather before 29, 1989, which April Defendant’s initial version events 14- with her at home alone was that she was police, she related Her Heather. son, Randall, daughter, and her six-week-old month-old Robert, in a downstairs husband, at work. Heather was bassinet p.m. At 10:30 upstairs. approximately was asleep and Randall out, when she reached evening, taking garbage she away stairs, pointing feet person she saw porch bottom of *8 ordered her into the house. Defendant gun person at her. This back door, hit that as she inside kitchen she was stepped remembered ren- object, on the of the head and neck area with an unknown back consciousness until dering regain her unconscious. Defendant did not 45 minutes later. p.m., her husband awoke her at 11:20 about of her assailant to the was that he description police Defendant’s that he was as tall as the policeman was a man of medium build and race her. She was unable to determine intruder’s be- interviewing mask, wearing though cause he a dark ski even mask had circular holes. Defendant believed her assailant was a male large eye voice, white. might the sound of his and she that he conjectured later, trial, at Nine months when defendant testified she broke the April news that the intruder of 1989 was the same who had person broken into her home in 1986 and her infant Lora- daughter abducted lei. She knew that the assailant was the same his voice. She person by also stated that he definitely white male.
Defendant also altered her initial version of the event when she at trial testified that she was uncertain the exact time that she testified, was knocked unconscious. Detective Mick Dooley prior had to defendant’s him testifying, night told on the Heather’s alleged kidnapping that she was knocked out about 10:30 p.m. and that her husband her at p.m., awoke 11:15 45 minutes later. The nurse who saw defendant the hospital at around 12:35 a.m. that same night corroborated Dooley’s testimony when she testified that the defendant had also told her she knocked out around 10:30 p.m. The testimony Dooley Detectives and Rick McCain also estab- that, lished in their interview at 3 a.m. the morn- with ing she April again reiterated that the incident occurred at ap- 10:30 proximately p.m. Sims, husband, Robert established
that, when he home arrived from work between 11:12 and 11:15 p.m., he found defendant lying facedown on the kitchen floor. He called her times, name several but she lifeless. He appeared thought she had had a heart attack. He shook her times and no response. several received children, Robert went check on but he could not find Heather. until, He returned to defendant and finally, shook she started groaning. was, He asked her where Heather to which defendant re- sponded, there in the bassinet.” She mumbled that when she “[I]n out, took the garbage “some told her to guy” up go walked and back house, into the then the hall he hit her. Robert then ran down stairs, leaped up right with defendant behind him. found They son, Randall, their asleep upstairs They and unharmed. came back four the house Heather three or more downstairs searched said, gave have to call finally cops,” times. Defendant “[W]e from the of the refrigerator. the number she obtained side Robert disappear- an officer Heather’s Dooley, investigating Detective that, ance, testified at about 12:30 a.m. in the after inci- morning *9 dent, hospital, although he took defendant she appeared she relented go, fine. Defendant did want to but and finally unaided from the house to car. On the police way walked home that place defendant mentioned a invasion had taken hospital, from her and that her afraid that down the street home husband was meaning home thing this kind of would invasion happen, apparently degenerated condition kidnapping. suddenly they and Defendant’s moaning rubbing she leaned forward and approached hospital, the hospi- of her her out of the car and into Dooley helped back neck. into tal, put he she fall. He her a wheelchair once might as was afraid were inside. they evening nurse defendant that testified she
The who examined lacerations, bruises, or did see lumps, not see but she some any did rubbing. neck where defendant had been redness on back had out for a person long The nurse never seen a who was knocked Kim, Doctor C. time who was not confused and disoriented. Duk who an and night, prescribed bag examined defendant that ice some also Dr. thought “highly unlikely impos- for defendant. Kim it Tylenol me then the find- to correlate what she told and sible [the defendant] her going discharge doctor was when Detective ings The [sic].” X X agreed reluctantly. an The doctor Dooley upon ray. insisted to the po- then took defendant negative. Dooley were Detective rays station, for hour. lice where she was interviewed Case, testi- Mary pathologist neuropathologist,
Dr. a forensic loss is severe and a 45-minute that a five-minute of consciousness fied “of A who has person consciousness is serious concern.” quite loss of in a time stu- period “woozy” knocked for a would be been out alert 10 minutes after and would not be por, gradually, would recover Case, would According person Dr. recovering consciousness. that oc- not remember retrograde anything amnesia and would have It also would be or more to the blow. prior curred 5 or minutes to minutes to remember the knocked out 30 anyone impossible blow. autopsy performed that she had
Dr. Case further testified suffocation that Heather had died opinion It was her Heather. The doctor de- her mouth. most a hand across likely by placing caused died, and that frozen after she must have been termined Heather earlier, death must have occurred three or four days upon based the internal decomposition, lack external decomposition, bright forehead, cheek, neck, red colors on the and from the loss of rigor mortis. It was also Dr. Case’s opinion that Heather’s death occurred near the time of her disappearance. of other testimony police officers established trained
tracking dogs brought were to the Sims home at 11:27 p.m. that eve- ning, the dogs pick up any but did not scent of the intruder. The po- investigation lice that on the night revealed Heather’s disappear- ance a neighbor walking across the street of her dogs two around 10:40 to p.m. 10:45 and then returned to her home and took other dogs two out. The neighbor did not see or hear anything unusual. 3, 1989, later,
On May days four Heather’s naked body was found in a plastic bag trash a trash barrel at a park riverside area in Mis- souri. This area park just Alton, Illinois, across the from bridge miles, 2.7 approximately minutes, a drive of less than six defendant’s home. Witnesses’ revealed that the trash bag was not in the a.m., trash barrel at 10:30 but that the bag was present in the trash barrel at 1 p.m.
The police and the Federal Bureau of Investigation (FBI), through *10 forensic testing, traced the trash bag which Heather’s body was found to a roll of trash bags still in defendant’s home. According defendant’s theory, alleged kidnapper removed only Heather and a bag trash from her home and did not touch or anything disturb else. The is that supposition Heather, the intruder then smothered removed clothes, her put her into the bag trash obtained from defendant’s home, stored her freezer, in a body and her dumped into a barrel in Missouri days four later.
Defendant’s parents, who lived about a four- or five-minute drive from home, defendant’s were on a on away trip the date of Heather’s disappearance. Defendant’s husband called them at 2 approximately 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 several trip days before their departure. sister,
Robert’s Linda Condray, testified that she came over to defendant’s home about 8 a.m. morning 30, of April just before defendant left go to her parents’ home. An unexplained gap as to defendant’s presented whereabouts was when defendant contradicted her sister-in-law’s testimony. According defendant’s she testimony, left her home that morning before her and sister-in-law arrived went to her sister-in-law’s home rather than her parents’ home. Her sister- husband, in-law’s supposedly helped car, who defendant unload the verify was never called to story. defendant’s Defendant’s sister-in-law also testified that defendant and defendant’s husband at her arrived they house that just p.m., separately. police before arrived home at on approximately April left defendant’s a.m. 30. defendant, that he ar- Defendant’s father testified first saw after he af- riving trip, home from his when went to Linda home Condray’s 30, al- p.m. April parents’ ter 3:30 on 1989. Defendant’s freezer was aunt, it later empty, according opened most defendant’s who that some meat. day get
Defendant her they husband testified that were home the morning and the afternoon of Heather’s May day body found, asserting was thus could not have driven to Missouri to they Heather’s the trash barrel. Defendant’s and Robert’s deposit body any witnesses, though not corroborated other even by constantly claimed had outside their home since press both been disappearance. Heather’s Cook, hospital roommate when
Stephanie Werner born, told her three years Heather was testified that defendant unconscious, a masked knocked her while she was gunman earlier had out, taking gunman from trash had taken returning on daughter her Loralei. Defendant’s Loralei abducted June baby, 17, 1986, but, time, told the police at had basement, into gunman came into her house and down masked made lie on television. He watching where defendant was floor, her, the base- did hit took Loralei out of the bassinet stairs, off when she heard pursuit, ment and took with defendant story being her door close. Cook related to mother trash, and when the emptying knocked out returning while ab- daughter that defendant’s had been news came out six weeks later taking out the trash and that a masked while defendant was ducted out, Defend- she the police. had knocked defendant contacted gunman mur- kidnapping told Cook details Loralei’s ant denied that she der. State, abduction, evidence of Loralei’s presented gunman a masked at 10:20 June approximately p.m. mask, a dark ski *11 on stairs. He wore defendant’s basement
appeared collie, a t-shirt, dog, Defendant’s pants. short-sleeve and dark dark door warning, though the screen given not even any had barked when locked, it, squeak on and made a definite loud had a closer was door, this screen because The entered gunman supposedly it closed. left and defend- gunman in the had been made screen. When a cut door, and ran after the jumped up she heard the squeak ant running down outside, “shadowy figure” she saw a gunman. Once someone south, thought and she heard what she driveway The Grays, and chased after him. running gravel. yelled She not hear the end of did neighbors driveway, lived at defendant’s who her, evening a hot and their though even it was summer windows in the kitchen at getting glass Mr. a of water open. Gray were abduction, he did not see or hear alleged the time of the at defendant’s house. he looked over anything suspicious when of Mrs. help. spite their door and requested Defendant came to arrive, police to defendant wait for Gray’s pleas husband, at to her to call her who was returning insisted on house work. tracking dogs. arrived and three trained The police brought
The record, any strange of their dogs, spite pick up success did driveway morning, police scents around the or the road. The next search, success. brought dogs again other without 18, 1986, to search east morning police On the of June were home, into a next going pond defendant’s divers were time, At of the Wayne defendant’s Lieutenant Watson property. a suggested good Illinois State Police to the defendant that this was statement, go police give time for the defendant to with the but that she not want to leave the house. Accord- protested did Watson, no, I ing “[N]o, to Lieutenant defendant said: want and said: bring here when She then stuttered they body up.” is not I mean. I is alive and I want to be my baby what mean “[T]hat here bring porch.” when her on the they 24, 1986, feet
Loralei’s was found on June about 100 body nude of a in a top north the rear of defendant’s house near ravine It from the evi- appeared wooded area with dense underbrush. heavily Loralei off the of the body top dence that someone had thrown the es- coming through backyard. argument ravine after defendant, that the returned to her home some- poused by abductor Loralei’s investigating disap- time after June while the were police in a and, weather, steep ravine pearance, 100-degree climbed thick the child near the of the ra- place top woods with underbrush to vine, logic belied reason. allegedly Loralei police night recreated the scene of the did lie on the floor as defendant
kidnapped by having policewoman and, close, and run outside. upon hearing up the screen door jump door, ran to the Another officer closed the screen back police the ra- house, if he of Loralei’s down disposing body acted were A vine, driveway. videotape and then ran down *12 several reenactments that covered all of the routes the kid- possible have taken was and to the at trial. napper jury could made shown These for impossible kidnapper reenactments revealed it was the house, to have north to the of the dispose body run back Loralei, and return south the house and 75 feet the past down gravel driveway by the time defendant came from the basement up “shadowy and saw heard the figure.” policewoman, playing defendant, the role of at same driveway arrived the before at the intruder, policeman, acting time the as the ran her. These enact- past closely by ments tracked the version of events related the defendant police at the time of Loralei’s disappearance. made, No in the nothing ransom demand was was disturbed in daughters’ clothing house both abductions. The killer removed the in locations the times both infants. Defendant lived two different at abductions, and she had unlisted number both telephone occasions, the Her her was not available to readily public. so address shifts both times so that it would have been swing husband worked the he plant going difficult for outside of know when was anyone rates dogs high tracking at Seven trained with success be work. the alleged were to detect the scent of in- persons unknown unable truder on the two occasions. not chil- told a co-worker in 1983 she did want
Defendant too Defend- girl.- dren: not a little It’s much trouble.” “[Especially defend- ant’s roommate when Loralei was born heard hospital talking telephone on the crying apologizing, ant while husband, admitted having baby girl. for Defendant’s husband mak- apologized having girl, defendant had for but defendant denied defendant, Heistand, such a friend of testified ing Linda apology. kidnapped, she feared Loralei would be be- defendant had stated that by denied defendant. disappeared, fore Loralei which were not excited that defendant and Robert Several nurses testified Another of defend- good in the birth of Heather. friend or interested birth, Gibson, after Heather’s ant, June testified three weeks “handle know much she could longer defendant said she did not how Heather, while it,” she downstairs with slept fact that referring also this. upstairs. Defendant denied slept her husband and Randall stand that defendant on the witness Defendant’s husband admitted and before disappeared, him after Heather moved back with upstairs de- again Defendant discovered, “good” sex. body they had nied this. murder, guilty of trial, found the defendant jury
Following death. The same concealing a homicidal and of obstructing justice, was eli- that the defendant determined that convicted defendant jury hearing on aggravation but after the penalty, for death gible factors mitigating found there were sufficient mitigation, natural-life imposed then penalty. the death court impose is- and raises numerous appeals The defendant sentence on defendant. nature of raised Because issues sues consideration. defendant, order raised not consider these issues we will were defendant, they consider them in order that we will but trial court. presented FAIR TRIAL I. DEFENDANT DENIED *13 in this contention first consideration is defendant’s appeal
Our argu- jury. fair trial this impartial that she was denied a an Under the court ment, (1) the following defendant raises subissues: for re- appoint erred in defendant’s motion to and to denying pay court not ensure quested experts; (2) prosecution and the did generated case; (3) a trial free from publicity and challenges ju- the court erred in of denying prospective rors for cause. A. MOTION EXPERT FOR WITNESSES the
Defendant filed a motion pretrial requesting appointment examiner; a the experts: pollster several a trace evidence to ascertain extent and a pretrial County; effect of adverse Peoria publicity consultant; consultant; medical and a pathologist. forensic sought Defendant also of the from the State. The payment experts trial judge argues denied the motion. On defendant be- appeal, death, cause of time of the questions as to the and cause of because evidence, bag generated, experts trash and because of the publicity were essential afford defendant the State’s ability confront and to the assure a fair affirm trial court’s denial trial. We of the motion.
A 174 Ill. People similar motion was considered in Hebel Hebei, 3d 527 1367. In this court forth what a App. N.E.2d set must wit appointment expert defendant do for the funding expert court of the (1) apprise nesses: defendant must the need testimony; of the a defendant relevancy expert’s (2) witnesses the employ; he defendant identify (3) must the whom wishes to expert involved; the a defend give (4) must court an estimate the fees at indigency. (Hebel, ant must establish the of a 1388-89.) grant N.E.2d at These blank requirements preclude to hire check on the who can afford county treasury a defendant experts, hiring his own of unneeded prevent experts, prevent hiring experts opinions might any whose not be relevant case, prevent hiring experts issues of so-called who re- might not be ally experts. to meet set requirements
Defendant failed out Hebei. apprised experts Defendant never trial court who were that she of their employ, testimony, necessity wished the relevance and the estimated cost to Madison For in experts, County. stance, expert was needed to complains testimony counteract Dr. Case’s that defendant could not have been for more than minutes and rendered unconscious five remember blow, events that defendant could not have immediately preceding telling story been oriented and to her husband and the capable consciousness, could not police shortly gaining after and that she have However, does not indicate remembered blow delivered. if an exists who could counter Dr. Case’s who this expert testimony, is, are, and what qualifications expert what his or her expert would cost. a prereq defendant never established her
Additionally, indigency, (Ill. uisite to the assistance under statute. Rev. receipt county hearing, At the motion defense par. 3(d).) Stat. ch. 113 — of ex hiring counsel that defendant was unable to afford argued stated that defendant had no funds of her own Defense counsel perts. However, de that her was now back to work. but admitted husband barely “He makes by stating, counsel his admission qualified fense also asserted that defendant had enough by.” to eke Defense counsel *14 in already have used sold her house and that all funds been available designed these statements were to show defend her defense. While self-serving counsel to be by ant’s we find the statements indigency, note defendant never filed We also testimony. and not based on sworn as is before required her assets and liabilities such listing an affidavit 38, 1989, ch. par. the court Rev. Stat. by (Ill. counsel is appointed on this issue. Fur persuasive more 3(b)), which would have been 113— at her thermore, represent counsel to employed private $40,000, was later in the sum of which cash bail posted trial. She also filing following her she was held without bond released to when her claim negated unsupported of murder. This evidence charge indigency. People v. Pee recent court case supreme we note the
Finally, case, properly evidence was not 2d 422. In that 155 Ill. ples (1993), crime tested in the State other evidence testing, for preserved expert. by to be tested allowed laboratory upon based problems, of these that, spite held court supreme an opportunity afforded reasonably case, defendant was in the facts 480.) Based 155 Ill. 2d at v. (People Peeples, his defense. prepare reasona that defendant case, we conclude facts in this upon being spite her defense prepare opportunity afforded an bly Thus, the experts. of various appointment requests denied appointment motion for refusing court did not err in trial experts. these unknown funding THE JURY OF AND B. PUBLICITY SEQUESTRATION case, its in- this from publicity contends Defendant obtaining trial, prevented throughout lasting ception unduly preju- that she was defendant asserts a trial. Specifically, fair approval generated with which by pretrial publicity diced to seques- the court’s failure encouragement prosecutor; to avoid trial, jurors admonish the during frequently ter the jury trial, jurors regarding and to voir dire the media accounts of the opportu- this on them or to allow influence publicity’s gener- case dispute does not the fact that bizarre The State nity. argues that amount of media attention but extraordinary ated an anby impartial jury. defendant received a fair trial reported as important is not as what was publicity The extent of publicity. in this case were influenced jurors and whether the crimes, inter all, “Crimes, great public heinous are of especially After that in expect It extensively reported. est and are is unreasonable interest in the average and at least average intelligence dividuals of are they of the cases which any would not have heard of community 101 Ill. 2d Taylor (1984), in court.” v. (People called upon judge “is the 377, 386, 482.) paramount importance Of all information he has to set aside juror assurance that will be able courtroom, he has along any opinions with acquired outside formed, presented on the strictly and decide the case 482.) 462 N.E.2d at ad (Taylor, the courtroom.” 101 Ill. 2d at dition, impartiality the courts concerned about very become highly prejudicial the media to jury exposed through when is evidence, criminal record of a such as the prior and inadmissible examina defendant, pass polygraph the refusal to take or failure pursuant excluded tion, confessions, or other evidence purported any 717, 6 L. Ed. 366 U.S. (Irvin to a motion in limine. v. Dowd Ill. 2d 1639; People Taylor (1984), 81 S. Ct. determinative, publicity It is not amount of which N.E.2d and impar- receive a fair what is is that the defendant important but *15 Lego (1987), 116 Ill. 2d (People tial trial. mind, the defend these we now consider whether principles
With impartial jury. a fair trial before an ant received change note that defendant venue Initially, requested we The case the State did not County, oppose. from Madison which motion granting to Peoria of this County. then transferred in Madi pretrial publicity generated reduced the greatly impact the local media in son and the defendant has shown how County, the Peoria The next consideration County prejudiced jurors. Madison to the defend prejudicial in Peoria was publicity must be whether ant, and, so, pub in its deliberations jury prejudiced by if was the trial. give impartial unable to defendant a fair and licity thereby in Peoria generated all of the media reports This court has read defendant, the case sub Of the re- judice. by submitted reviewed, television broad- two and two ports only newspaper reports These to the defendant. prejudicial casts could be considered possibly mo- by was excluded the defendant’s involved evidence which reports and the two television newspaper report in limine. In one tions marijuana had broadcasts, allegedly it that defendant reported These were reports pub- after Heather’s abduction. her bloodstream report, pub- The other jury. newspaper voir dire of the during lished trial, 31, 1989, prior reported over a week lished December after had failed lie detector tests Loralei’s defendant and her husband of the tim- Because abduction, alleged but not in Heather’s abduction. danger reports, recognize we ing prejudicial publicity of these but right impartial jury, to a fair and to defendant’s reports posed A discuss hereinafter. review were harmless as we reports these the trial re- in Peoria before generated of the publicity the remainder at the time primarily concentrated publicity veals and, thus, in time was removed April disappearance Heather’s the trial. trial, during which occurred regard publicity With evolved, heard it after it was the evidence merely reported media prejudicial considered This cannot be publicity jury. However, or heard such summaries. defendant, if the read even his or her oath actually violated any juror there is no evidence reports. to such media reading listening gen- several potential jurors asked the dire, voir the court During counsel and to defense tendering jurors eral before questions (1) inquired: the court Specifically, for further questioning. prosecutor me- through the the case read or heard about each had juror whether heard had had read or each dia; juror the information (2) whether case; (3) in this whether opinion form an him or caused had or heard what she or he read disregard each could juror *16 indicated, except that selected all were impartial. jurors fair and or formed an Radosevich, expressed that had never one, they defendant; had read guilt they the or innocence of opinion about fair case; they and that could be and or little the very heard about Dowd, Dowd, to in out case but impartial. compares Defendant and that it guilty that the defendant was opinion of 12 held the jurors v. Dowd opinion. (Irvin their change would take sworn the 1639.) 81 S. Ct. case at U.S. 6 L. Ed. (1961), 366 bar, Radosevich, having formed an juror the who admitted only else, he opinion anyone his stated opinion, had never expressed system “how the changed opinion understanding that he had his after proven until works,” and that he be innocent presumed guilty.
Further, the jurors defense counsel also about their questioned possible again, jurors from the all of se- prejudice publicity, their decision. In lected denied this information would influence fact, were for cause their many jurors not selected excused because exposure to had of the they opinion and because formed an publicity shown, case. The defendant nor can it be determined has record, impartial that she denied prejudice suffered or was a fair trial either her publicity during due before or trial. denying
Defendant next contends that the court erred in or sequester jury. granting motion to denial of such a motion the sound is within discretion of the court and not reversible error if judge gives warnings the trial not to read adequate jury or reports listen to no press trial and demonstration actual made prejudice is defendant. v. Brisbon 106 Ill. 2d (People Here, jurors were instructed several times articles, not to not to lis throughout proceedings newspaper read broadcasts, ten not to reports to radio watch television about the subsequent case. There is no were jurors exposed that the jurors media after were sworn or violated their reports they oath and from the trial judge. instructions
Further, any question the defendant did not raise ade- then, until the almost Even de- quacy warnings trial was over. jury might fense counsel’s concern was that have heard only during proved Since never something inadvertently recesses. counsel offer or heard actually any- made an read proof courtroom, outside of in the thing the evidence adduced against right failed to show actual to a fair trial. prejudice Finally, defendant asserts that there was prosecutorial mis conduct on the part the assistant State’s Attorney generating It is true that the publicity. police initiated publicity on the advice of the FBI and with approval of the prosecutor before the body found, Heather was but that publicity was for the purpose flushing Further, out the murderer. this publicity generated in Madison prior to the County arrest of defendant. There is no proof jurors Peoria were fact, aware of this publicity, and the jurors selected indicated that would not they be influenced what had they read or heard. The only publicity prosecutor trial, initiated during about which defendant was the complains, prosecutor’s announcement going that he was to spring “surprise” counsel, on defendant’s but the nature of this “surprise” evidence was not disclosed. surprise This subsequently revealed at trial to be Dr. Case’s testimony that defendant could not have been knocked unconscious and still remem all ber that she did. The defendant showing made no that the jury read or or, heard this announcement if even one or more jurors heard announcement, that prejudice ensued.
We, course, second-guess can the trial judge, possible and it is might we have taken some that precautionary steps hindsight affords us, such as warning jurors more not frequently to read or listen to reports about the case. But how times must a tell many judge that has some presumably intelligence modicum of not to read or listen to media about the reports trial? The trial could ex- judge have motion in limine hearing concerning evi- cluded the from the press blood, dence of marijuana defendant’s such usually but exclusions result in more publicity find, therefore, and false reports. We that the not an publicity generated did have adverse influence on the jury; hold otherwise would be pure speculation contrary to record. C. DENIAL OF CHALLENGES OF JURORS FOR CAUSE
Defendant asserts that the court erred in her denying challenges for cause of four After jurors. three of the unsuccessfully challenging cause, prospective jurors for she exercised peremptory challenges against those three. As to the fourth which the defendant un- juror, cause, for had exhausted all her successfully challenged defendant peremptory challenges, juror Although and this was seated. unsuccessfully challenged mentions in her brief all of the four jurors cause, for it is the one only juror seated about which centers her contentions. find no merit to
Summarily, we defendant’s assertion unsuccessful to the three challenges jurors peremptorily which were
987 be no claim fair trial. There can her of a deprived excused impaneled, pe were because if not prospective jurors these prejudice the loss are constitutional dimension and not of remptory challenges a consti not constitute a violation of challenge does peremptory of a v. 487 U.S. (1988), right impartial jury. (Ross tutional to an Oklahoma 2273; 231 80, (1992), v. Harris 81, People L. 2d 108 S. Ct. 101 Ed. Ill. (1987), 162 1363; People v. Johnson 876, 3d 596 N.E.2d App. 952, the use 343.) through peremptory N.E.2d It is 3d 516 App. a, Harris (People is v. fair and obtained. challenges impartial jury Having 1363.) 3d N.E.2d disposed 231 Ill. (1992), App. seated, now the three we regarding jurors defendant’s contention denying that the court erred consider defendant’s contention seated, who was Radosevich. challenge against juror cause A for cause is a matter of discre juror court’s refusal excuse 188.) (People tion. 203 Ill. 3d N.E.2d (1990), App. v. Seaman review, to sit competence the court’s determination of person’s On against as a will not overturned unless the court’s juror decision 2d at (People Peeples, the manifest v. 155 Ill. weight evidence. a fair 469.) true consideration is whether the defendant received 101 Ill. impartial (People Taylor (1984), trial. v. 2d show, challeng as the party N.E.2d It is defendant’s burden ing juror, impartial juror. not a fair and Peo Radosevich was 188; ple People v. Seaman 203 Ill. 3d Peeples (1993), 155 Ill. 422.
Defendant first asserts Radosevich not a fair and impar- juror tial he dire he had re- opinion because stated in voir an garding guilt responses or innocence. Radosevich’s discussed, questions counsel were wherein Radosevich previously prior guilt indicated that he had an at a time of opinion innocence, that he held longer opinion seeing but no after how the system worked. stated that he believed defendant was Radosevich entitled to a presumed fair trial and that she was to be innocent. have
Additionally, defendant contends that Radosevich should *18 po been cause since he also he would excused for indicated believe lice officer more than other Rado pertinent questions, witnesses. The answers, sevich’s and the ritual in criminal trial whereby usual juror is were follows: rehabilitated as to hear the expect
“MR. GROSHONG We counsel]: [defense of some think reason testimony police you officers. Do more give of their their employment you testimony any would em- weight credence or because of the nature of their merely ployment?
JUROR: Yes.
MR. GROSHONG: isWhy that? Well, know,
JUROR: that’s their job. You that’s what they do, so, know, get paid you I would weigh have to their —what greater than they say that’s, another individual know— you that’s not of their part job.
MR. GROSHONG: Usually police officers on the testify case, State’s side of the don’t they?
JUROR: Uh-huh. MR. GROSHONG: Do think you that because the offi- police cers on case, side of testify prosecutor’s since you give their testimony greater weight, that that puts some kind of ad- ditional burden on the defense to prove own innocence?
JUROR: No. MR. GROSHONG: Does it Paula in a put position where she’s out already starting with a black in this case? eye
JUROR: No.
* * * Radosevich, MR. GROSHONG: Mr. would the failure on my side of the case to call officers to police testify my on side of case, knowing will call them to prosecutor testify, them, some of on his side of the would that case[,] put Paula at a disadvantage in your eyes? No.
JUROR: MR. GROSHONG: How do reconcile that you with ear- statement, sir, lier give weight would more to the tes- you timony of officers? police Well, officer,
JUROR: I think a police his statements would more only credible is the I am to make. point trying MR. GROSHONG: I take it that would you judge police officers’ a standard different from that would testimony by you impose people? on other
JUROR: Yes.
* * * THE COURT: Let me ask about a officer’s testi- you police mouth, I don’t want to some mony. put your ju- words but police might knowledge rors feel that a officer have more in a area, or particular say particular police distances matters. But if are instructed that should treat you you testimony other any officer the same as treat police you believability credibility, you far as would do that?
JUROR: Yes.”
989 Rado- to infer that the court found it is this reasonable colloquy, From juror. fair and willing impartial a sevich re that no that holds Radosevich’s authority cites Defendant v. Jaro prospective juror. People a automatically disqualify sponses held 1057, 371 the court Ill. N.E.2d (1977), App. 55 3d siewicz un not commit an a that a officer would juror police that the belief of to dis grounds on citizen was not sufficient act of violence a provoked the that recently this court held Similarly, for cause. juror miss in a officers police friends with several Carbondale juror fact the was ju case not sufficient excuse grounds murder Carbondale 1363.) 231 Ill. 3d 596 N.E.2d (People (1992), ror. Harris may and Harris jurors that the in both Jarosiewicz appear It would case; Radosevich instant have more than “pro-police” been im to be fair and however, jurors in those cases were found two that court case of Pee Finally, supreme note in the recent partial. we refusing that not err in judge the court found the trial did ples, sat on case and juror previous strike a for cause who had murder hands were tied who had found out afterwards that State’s evidence, process.” the rules of which he indicated was not “valid cause do not that the court’s refusal to excuse We find Radosevich evidence, Ra against simply the manifest weight because entangled occurring imbroglio dosevich became in the frequently ju as to what should a hypothetical questioning weight potential ror of an give testimony police the unknown unknown officer ver testimony sus unknown of an unknown witness. II. PROSECUTORIAL MISCONDUCT presented
The defendant’s next issue for consideration is under issue, she she “prosecutorial what terms misconduct.” Under this (1) two erred in Dr. presents permitting subissues: that court Case, pathologist case, expert as an witness testify prosecutor’s motive denied neurology, (2) improper profit trial. her a fair A. EXPERT WITNESS TESTIMONY misconduct, it entirely prosecutorial
While is not issue of allowing discretion in defendant contends the court abused its argu- Her Dr. Case as an witness in testify expert neuropathology. ment of this doctor was not (a) qualified subissue twofold: live as an in this field she had never treated expert witness because regarding patients, (b) surprise testimony doctor’s related a discov- injury memory head constituted We first address the defendant’s assertion Dr. Case ery violation. expert neuropathology. as an witness in the field of qualified was not expert experience A as an where his or person may testify knowledge afford the witness not common to qualifications lay fact in reaching and where the will aid the trier of persons (1984), its v. Jordan 469 N.E.2d (People conclusion. as an is within the discretion qualifies expert Whether witness Ill. 2d People of the trial court. v. Jordan *20 569. to
Here, qualified testify the record reveals that Dr. Case was in Dr. revealed that neuropathology. testimony as an Case’s expert field, in this and that she was two-year residency she completed expe her substantial specialty. certified in this She enumerated board further testified rience, and research in this area. Dr. Case training, consultant, field, the has acted as a has works in published that she in neu of lectures and seminars and has a considerable number given in this field. While Dr. experts She is one of foremost ropathology. persons not treated live she had examined with patients, Case had cases, their cause. head in child abuse to determine injuries, especially in expert her as an knowledge qualified Dr. Case’s experience equal could considered at least knowledge and her be neuropathology, at the than, of Dr. Kim and the nurse to, knowledge if not greater the effect defendant and testified to both of whom examined hospital, head have had on defendant. a blow to the would addition, memory the effects on testimony regarding Dr. Case’s to the head aided the from a blow as a result of unconsciousness true that may it testimony. in the defendant’s While evaluating that a to knowledge of the effects blow have some lay persons most retrograde amnesia and have, testimony the doctor’s the head may a head injury to function after person to which a is able degree The to a knowledge lay person. common was not information testify Dr. Case to allowing discretion in court did not abuse its in expert neuropathology. more to the argument relates of defendant’s prong
The second issue, out of all issues misconduct. This charge prosecutorial con- court. The defendant to this raised, difficulty the most presents awas neuropathology Dr. regarding Case tends that she claims that rules. She discovery her and violated surprise Dr. Case’s testi- to trial as the substance prior was not advised a result of to function as ability head injury, mony regarding un- to extended corresponding retrograde amnesia injury, only she was claims head injury. consciousness from a autopsy testify called to being Case was aware that Dr. these Defendant contends Heather, forensic i.e., pathologist. as a (134 Ill. 412(a)(iv) Rule Court Supreme constitute a violation facts error. R. and hence reversible 412(a)(iv)) part as follows: 412(a)(iv) pertinent Rule provides *** defense coun- shall, written motion of upon the State “(a) material and infor- following sel, to defense counsel disclose control: its or possession mation within [*] * * in connec made experts, or statements of (iv) reports any or case, physical results of including particular tion with the tests, experiments, and of scientific mental examinations of the ex of qualifications and a statement comparisons, 412(a)(iv). 134 Ill. 2d R. pert.” an- prosecutor’s arose because of controversy
This whole “surprise” going present that he was press nouncement certain as to the the next are not day. the defendant in his case We risk to his case unnecessary to incur such an motives prosecutor’s course, counsel, of seized defense experienced this announcement. objecting strenuously to him presented the golden opportunity appeal. motion and on post-trial his “surprise” maneuvering, aspira- the trial This court must now transcend all engage counsel, that counsel sometimes personal games tions of error committed deciding their if reversible opposition by with *21 the totality due the This that we review “surprise.” requires surrounding circumstances the of Dr. Case. testimony Dr. Case’s at the trial to objected Defendant’s counsel never story of on the concerning the defendant’s testimony impossibility at trial was to Dr. grounds objection of Defense counsel’s surprise. of neuropathol as an the field qualifications testify expert Case’s Coun treating persons. live experience of her lack of ogy because first made to the court grounds surprise on the of objection sel’s before, dim never asked on the record in a motion. Counsel post-trial continuance of kind. any of Dr. Case for a testimony or after the ing, vague memo argue the discuss and prosecutor Defense counsel and the record occurred off ries, as to what during post-trial hearing, the The for a continuance. request a during concerning possible the trial arose “surprise” only the objection to Dr. Case’s because post- his preparing counsel was after the trial and after defendant’s trial motion. witness, the name of the disclosed prosecutor note that the
We medicine, in the field Case, expert the an Dr. and that witness was Second, dis- prosecutor the pathology. in forensic particularly more and her cur- neuropathology, expert that the witness was closed defendant, credentials to the wherein her provided riculum vitae was listing pub- A were enumerated. neuropathology in the field of injuries part and head neuropathology as to lished works to interview Further, opportunity had an this document. that she availed herself of Case, apparent it is not although Dr. case, she did the depose Dr. Case for this opportunity depose custody concerning case juvenile doctor for the related son. defendant’s ver- attack defendant’s routinely will prosecutor
The fact that as no sur- should come credibility and defendant’s sion of events statements counsel. When the defense inexperienced to even an prise morning on the of and night to the police that defendant made counsel, it defense were reviewed alleged abduction after that a would prosecutor defense counsel surprised not have should as to and unbelievable being very weak story view the defendant’s know, experience from would ordinary lay person injury. the head accidents, events, other wrecks, sporting of car knowledge or minutes would out for 45 knocking person to the head that a blow ques- at least person would ordinary lay matter. very be a serious revived, blow, being such a receiving upon of a ability person tion and retrieve stairs, suggestion make the and down up run jump up, until 8 give police statements police, to call number rest, head- incapacitating any sleep, without morning a.m. the next surprise not and cannot claim for the defense does ache. Counsel night of what occurred story the State attack would abduction. alleged of Dr. Kim and the testimony claim at surprise did not Defendant after within hours examined defendant who hospital, the nurse at of defendant’s statement blow, their disbelief concerning alleged for approxi- knocked out in the head and struck that she had been more although Moreover, testimony, Dr. Case’s 45 minutes. mately It cumulative. testimony, the nurse’s Dr. Kim’s and technical than attempt would prosecutor surprise come as a not have should of defend- or unlikeliness impossibility as to the an opinion to obtain called. witness even nonmedical medical and every ant’s story argument against damaging The most came in timely objection, make a failure to than her other surprise, commenced, trial months before hearings held five pretrial two *22 to cross-examination response McClain testified wherein Officer a doctor who State had hearings that the counsel both knocked unconscious being claim of that defendant’s testify would therefore, and, impossi- an of events report with her was inconsistent reason, questioning not pursue counsel did For some bility. this witness. Missouri, v. Restaurants cites Rodehouse Defendant Wakeford 963, 31, which was affirmed 223 Ill. 3d 584 N.E.2d (1991), App.
Inc. Mis Restaurants v. Rodehouse (Wakeford court supreme con 543, that our courts souri, authority 154 Ill. 2d (1992), Inc. we re why Defendant asks would expert testimony. demn undisclosed case, than do in a criminal in civil cases we stricter disclosure quire con The answer is that we is in liberty jeopardy? when a defendant’s are, There of cases. types in both experts demn the nondisclosure to made for disclosure be however, ways different rules and different there disclosure judice, In the case sub in civil and criminal cases. their fields of ex testify, what experts going that two medical were about. In were, they going testify what were pertise generally Court Supreme the court felt that there was a violation Wakeford, 220, being expert, not disclosed as an Rule because witness was being the witness was plaintiff way knowing and so had no Here, (134 220(b)(1).) Ill. 2d R. Dr. give expert opinion. called to an an and her fields of were dis expert, expertise Case was disclosed as closed, not aware that she would help so that defendant could but be If officer in give investigating police expert opinion. Wakeford field of as to the distri expert, expertise had been listed as an and his disclosed, may then the results of crime in Alton had bution been is, therefore, distinguishable from have been different. Wakeford present case. allowed whereby experts
There are numerous criminal cases were the gist their not disclosed or fully even when existence was testify (People not to defense counsel. fully of their revealed 458, 978; v. People 3d 544 N.E.2d (1989), App. v. Carr 954; 29, People 507 N.E.2d v. Scheidt Fleming (1987), App. 155 Ill. 3d 248; (1985), v. Jackson (1986), People 142 Ill. 3d 492 N.E.2d App. 466; (1982), 107 Ill. People Taylor 131 Ill. 3d 474 N.E.2d App. 105 Ill. 565; v. Davis App. People 3d 438 N.E.2d these cases distinguish cannot We no case, surprise of these cases holds there was present as each defendant, known there was as defendant should have prejudice to defend damaging be going expert opinion given would defendant, expres an old ant’s case. the State nor the use Neither as the sion, long for the other side as picture” “to draw required of expertise, the existence of the the field party expert, does hide *23 Here, if expert’s testimony, and the of gist requested. told, another, form or the name and in one of Dr. Case her fields that a expertise expert testifying and there would be medical as to impossibility story ability her remember. time given warning Defendant was sufficient and her story to be attacked as she had five months’ going by expert testimony, two of the warning pretrial hearings, testimony mentions in statement, and the Dr. prosecutor’s opening presentation of Case’s in the case in chief rather than State’s rebuttal. testify, When was called to she was at- prepared and on the and af- tempted explain away night morning her statements length alleged ter the abduction about of time she was rendered not err in judge denying unconscious. We find that the trial did new to Dr. testi- post-trial motion a trial due Case’s mony. prior opinions note the defendant cites two
We also
1079,
court,
this
v.
122 Ill.
3d
462 N.E.2d
People
(1984),
App.
Barton
701,
538,
190 Ill.
3d
546 N.E.2d
People
(1989),
App.
and
Barton
prosecutor’s conduct,
were critical of
particular
this
when
he
Madison
claim
Attorney
County,
support
was the State’s
The Barton
not act as
con
prosecutorial
prior
misconduct.
cases do
in a
every
of the
so that
time he
case bad
prosecutor
appears
victions
act. The
have
imputed
every
prosecutor may
motives can be
to his
occasion,
reviewing
so did defense counsel.
“showboated”
but
trial,
not
misconduct on the
transcript
any
of this
we do
discern
“there
a clear denial of
part
prosecutor
of the
that shows
has been
Barton,
3d at
Nevertheless, prosecutor to disqualify for a court outcome interested must be prosecutor special prosecutor, his office is a case, i.e., either as a or because individual private v. Peterlin 156 Ill. (Baxter to the action. party of a prosecutor, peti To the removal support interest, prosecutor’s specific tioner must facts plead prove zealously repre prosecutor as facts which show the would well (Bax of this interest. of the State of Illinois because People sent *24 564, Here, ter v. Peterlin 156.) 3d 509 N.E.2d (1987), App. 156 Ill. did not prosecutor zealously the has not shown that the defendant her, fact, exception the seems to take prosecute and in defendant the doing previously, that. As we stated prosecutor’s exactly argument conclusory, general, speculative, defendant’s is prosecutor there is no reason of record to show that the had apparent a conflict of interest the defendant’s trial which during deprived of a impartial proceeding. fair and III. RULINGS EVIDENTIARY
The main is that she by next contention raised the defendant by evidentiary rulings. Specif- denied a fair trial several of the court’s in ically, (1) the defendant asserts that the court abused its discretion: crimes; and in to limit the State’s of other admitting failing evidence evidence; in (2) (3) in the State to “reenactment” allowing present “coaching” refusing testimony regarding surrebuttal witness; of a a State’s witness to tes- (4) allowing State’s rebuttal (5) excluding defend- tify regarding credibility; the defendant’s guilt. ant’s which created doubt as to her We find evidence not an rulings evidentiary court’s these matters were concerning of for the set forth abuse discretion reasons below.
A. EVIDENCE OF OTHER CRIMES the State of presented by Defendant contends that the evidence Lora- the circumstances and death of surrounding disappearance lei, 1986, should not have daughter, defendant’s firstborn in June more as it of another crime and was presented, been was evidence 996 Further,
prejudicial probative. argues than defendant that this evi- dence was inadmissible because it did show defendant Loralei, in the or that a participated committed or murder even that, argues crime had occurred. The defendant also even if this evi- admitted, the limited dence was evidence should have been properly scope presented. disagree. trial court as evidence We It is well established evidence other crimes for which not on trial is if is relevant merely is inadmissible it 123 (People (1988), show a commit v. Richardson propensity crime. 322, 612.) prohibiting Ill. 2d 528 N.E.2d reason this evidence jury, may is that such evidence which convict overpersuades person deserving punish because he or she is a bad simply 322, 612.) Ill. ment. v. Richardson 123 2d 528 N.E.2d (People (1988), general An rule that other-crimes evidence is ad exception is any missible if it is relevant for other than to show purpose i.e., crime, intent, to commit to show identifi propensity cation, mistake, v. motive, operandi. (People absence of or modus other 612.) Ill. 2d 528 N.E.2d Proof of (1988), Richardson 123 crimes not be a reasonable doubt to show beyond need when offered it more than operandi, specu common scheme modus but must be 127 Ill. 3d 469 N.E.2d (1984), App. lative. v. (People Wolfbrandt 334.) 3d 454 305; People App. v. Fuller Ill. N.E.2d (1983), matter to admit evidence other crimes is a of discre decision discretion, court, tion left to the trial and absent abuse v. (People determination not be overturned on review. court’s will Further, Ill. if the (1983), Fuller 3d App. in its consideration of other-crimes evidence limited instructions, court’s the evidence is substan prejudicial impact 836, 469 People reduced. tially Wolfbrandt N.E.2d 305. case, Loralei’s death presented regarding *25 At on the p.m., as 10:30
June 1986 can be summarized follows: intruder, wearing ski 17, 1986, a male a dark evening of white June home when and came into gun, mask armed with a This intruder had she was and her husband was at work. alone grabbed intruder then Loralei lie on the floor. The defendant down anything else taking her and left the house without from bassinet intruder, saw the the home. No one other than defendant value from for No ransom was found by police. and no intruder sign nude was body the intruder. Loralei’s sought by Loralei was ever heavily home in a feet from the defendant’s approximately found testi- her Medical disappearance. about a week after wooded ravine that Loralei’s death was homicide. established mony Loralei, charged the murder of but she was charged was with never justice death and concealment of a homicidal obstruction with the out- Loralei’s death. record does not disclose connection with those charges. come of reflecting find that this evidence was admissible
We in the of Loralei and operandi common scheme or modus deaths Heather, in the deaths was the and that the common denominator deaths, occurrences defendant. In Heather’s and Loralei’s both was at when the defendant was alone and husband happened in ei work; sought no ransom p.m.; both occurred at about 10:30 was intruder found in ei alleged kidnapping; ther no evidence of an case; nothing ther the “intruder” took the two babies and else only value; a ski mask carried a inci gun the “intruder” wore both naked; females; dents; found victims were both babies were both both children were found dead in close to the defendant’s proximity home. The of Loralei’s disappearance evidence was admissible because it substantially similar to the unusual circumstances of Heather’s death. It also revealed the lack of coincidence and the implausibility explanation of the two cases. these com Additionally, sufficient, themselves, mon features were in and of a dis establish tinctive of one suggesting person, person combination work being People (1992), defendant. v. Smith 236 Ill. 3d App.
N.E.2d 1388.
We find this case is analogous
People
v. Hanei
81 Ill.
Hanei,
Further, the defendant’s assertion that court should regarding the evidence Loralei’s permitted quantity presented the is The defendant contends that court deter- death not well taken. evidence, to limit the she mined it not have discretion which did upon her assertion the claims is reversible error. The defendant bases limit the court it denied the request statement made when evidence, I limit “Now I don’t think can the follows: which if trial State, not, something up you I comes at where and will but is object.” language should It you object, you feel should that it lacked discretion discloses the court’s belief defendant asserts the court’s statement as the interpret to limit the evidence. We do not expressing court its in- simply does. We find the not that evi- the it did know what limit evidence because ability evidence, impos- it would knowing dence was to the be. Without Further, it. court exercised its discretion court limit sible encouraged the evidence. court defend- and declined limit of the other- during presenting necessary ant when object it had evidence, knowledge the court’s dis- which revealed crimes when exercise this discretion to limit evidence and would cretion it to do so. appropriate the evidence of addition, instructed to consider jury was intent, knowl of the defendant’s on the issue solely
Loralei’s death operandi. and modus accident, instructing soBy lack edge, reduced. substantially of this evidence was prejudicial impact jury, (People Wolfbrandt allowing its court discretion did abuse the defendant re to limit evidence as refusing
Loralei’s death quested.
B. “REENACTMENT” EVIDENCE its discretion in the court abused The defendant contends videotape of the reenactments the State to show permitting It in June 1986. surrounding Loralei’s disappearance of the events motion in limine which presented undisputed excluded from videotape question to have the sought the defendant consideration, granted and that the court the jury’s after the jury, was shown Subsequently, videotape motion. the ex- cross-examination had elicited court determined that extensive tape and what the contained. videotape istence the scene court has ruled that recreation of previously This *27 evidence, such, the and as ad a crime is similar demonstrative (Peo left to the discretion of the court. of such evidence is missibility Further, 882.) 68 Ill. 3d 385 N.E.2d ple Proper (1979), App. v. “ in the admission ‘procures, acquiesces when defendant invites ” evidence, complain.’ (Peo it he cannot though improper, even 45, 50, 44, 46, quoting v. 98 Ill. 2d 456 N.E.2d Peo ple Payne (1983), Here, 280, 283, 389.) 178 the ple age (1961), v. Bur 23 Ill. 2d N.E.2d the “opened court its discretion as the defendant door” did abuse of the cross-examined the State’s videotape the evidence when he witnesses the and the circumstances under which the videotape suffice it to videotape enumerating specifics, say was made. Without the find that the videotape. we have reviewed about the We testimony elicited in defendant’s extensive cross-examination and the testimony subsequent testimony presented on redirect examination revealed thus, much showing of the content of the the of the videotape, videotape Further, the practically superfluous. referred to this evidence part as “manufactured” evidence on the of the State in front of the jury, and this of the evidence im portrayal gives added petus addition, for the admission of the because of videotape. cross-examination, extensive of the many discrepancies between the defendant’s the in testimony portrayed events the vi deotape brought attention, were the jury’s thereby leaving weight videotape evidence in the hands of the We also jury. that, note prior showing the the court admonished videotape, the jurors that it was for them weight give “to determine what film, circumstances, this and that is based the similarities or dis upon similarities found to exist you between the and what have experiment circumstances, heard court.” Based on these the court did not abuse its discretion in the allowing videotape. view
C. SURREBUTTAL TESTIMONY The defendant’s next contention is the trial court its abused testimony discretion when it denied the admission of her surrebuttal State’s rebuttal witness’ identification of her was coached the prosecution. However, actually argues State’s excluded because testimony rebuttal witness’ should have been scope went of the defendant’s testimony beyond testimony. witness, that the
Specifically, defendant asserts State’s rebuttal her Rasp, Gisela testified she saw defendant with Loralei at baby’s alleged card which contradicted shop disappearance, before had the defendant’s that she had not Loralei out of the testimony goes her The defendant that this wit- house after birth. state testimony, then, scope testimony ness’ exceeded and estab- Loralei, that, Rasp when she was silent and lished new evidence saw stare, thus that Loralei was al- unmoving open-eyed implying with ready disappearance. dead before has permitting testimony law on surrebuttal court to allow if no matters were testimony
discretion to refuse new (People raised in rebuttal. v. Williams review, becomes, then did the trial question On court its the surrebuttal which denying testimony abuse discretion prejudice People resulted in manifest defendant? Sandoval Ill. 2d 726. (1990), 135 N.E.2d
Here, sought to in surre present the evidence defendant new not counteract the (coaching witness) buttal does i.e., the Rasp, presented testimony she asserts was in the rebuttal Further, pre dead. the defendant implication already that Loralei was surrebuttal, they wherein sented the of other witnesses *28 had home after they Rasp had called the defendant’s testified defendant, baby had heard the they seen with the Loralei Thus, counteracting Rasp’s testimony. crying background, evi no manifest the “additional prejudice defendant suffered argues presented by Rasp. dence” she was that, were some- Rasp's testimony not find if Additionally, we do states, of the court’s denial as the defendant initially how “coached” her mani- for caused testimony purpose defendant’s surrebuttal this Rasp presented of was weak evidence testimony fest The prejudice. not had testimony that she had the defendant’s by negate State disappear- to her prior house after her birth and Loralei out if to convict the defend- little, testimony anything, ance. added Rasp’s the de- Therefore, do find that murder we ant of Heather. manifestly prejudicial was testimony nial of defendant’s surrebuttal deny- defendant, trial did not its discretion and the court abuse ing testimony.
D. REBUTTAL TESTIMONY re- State’s testimony that the The also contends defendant excluded on Schultz, been witness, Agent FBI should have buttal in- motion, evidence and testimony opinion as his was defendant’s on the of the commenting credibility province jury by vaded the testimony beyond defendant. Defendant asserts testimony highly prejudicial. rebuttal and was scope permissible he alleges agent’s why The further explanation and invoked agent sympa- was in a wheelchair cloaked the with valor augmenting veracity. the witness’ thy, thereby Agent testimony Schultz was called the State to rebut he agent defendant’s husband that was lied about in the a confession from the possession FBI’s order to obtain the circumstances of the agent’s testimony explained defendant. what exactly interview with defendant’s husband revealed agent was said to the defendant’s to show that the did not lie husband to him. The Schultz which the specific by Agent statement was as follows: complains
“Well, I him the regarding told two stories the two abductions totally preposterous jury right were and that no in their mind would those believe stories ***.” Schultz,
At the time of the statement by Agent the defendant ob- jected by stating: going “I’m to this kind of object testimony.” The court overruled the objection, finding that the testimony agent what the told defendant’s husband. we note that the
Initially, defendant has waived this issue. Failure to specific grounds state that issue for objection waives appeal. (People Johnson
1291.) Here, the general defendant made a to the objection testimony. Such objection fails to bring problem court’s attention the with the does not allow the court an opportunity make Thus, a valid consideration. this issue. the defendant has waived
Further, if waived, even the issue were not the argument we find cases, meritless. Defendant has offered no can find none that we hold that comments in- by another witness such as were made here vaded the province of the to determine the of the wit- jury credibility nesses. al- Agent jury Schultz’s statement was made after the had ready heard the State’s evidence and defendant’s evidence. aware, time, much at that and the very strengths Further, weaknesses of the explanation given of events. *29 made, the circumstances under which the statement it appears was that the statement was not to lack of cred- made establish defendant’s was, trial, ibility but as the court asserted at an of what explanation the agent said to the in to him encourage defendant’s husband order to obtain a confession from the defendant. The was astute
1002 agent’s being opinion statement his enough recognize addition, during of the defendant asserted not a statement fact. of were “mistaken” in their her that several the witnesses testimony If being Agent that witnesses also lied. the inference these testimony, province of the jury’s statement is found to be invasion Schultz’s reasoning the same credibility, apply to determine a witness’ would find no or logical legal assertions at trial as well. We error. Agent prejudicial reason to Schultz’s statement was find OFFER OF E. DENIAL OF PROOF is that court erred denying The defendant’s next contention her innocence. She argues her offer of evidence of proof regarding “negative” evidence innocence. proof presented her offer of theory her that someone ab- proof This offer of else support Joy daughter following: and murdered her consisted ducted 1989, that, 3, body Heather’s May day on Hokenson’s to another discovered, handing she a man bundle witnessed baby afghan, in a The she saw was person wrapped car. bundle This was inside the bundle. transfer- but Hokenson did not see what a.m., from the ence at about 8:30 about block incident occurred Alton, led access area where Hlinois, public which bridge Heather’s was found. body asserts should have been admit-
The other evidence discovery shoe found at the site prints ted that there were any not to determined match prints and these were body, Heather’s husband, defendant, parents. belonging to footwear 3, evening p.m. May at 9 approximately shoe were found prints Heather’s body the trash barrel where 1989, 40 feet from found. attempt that a is entitled law is well established he or she committed the crime with which prove someone else v. (People limitations. right is without charged,
is but the limits 1155.) Defining N.E.2d 139 Ill. 2d 564 (1990), Enis in this determination difficult, first and foremost is but such evidence 1155.) Ill. 2d N.E.2d (1990), Enis relevancy. (People is if of irrelevancy grounds may reject A this evidence court remoteness, due to uncer probative has little value fered evidence (1990), v. Enis (People nature. prejudicial or its unfair tainty, possible ruling A as to admissi 1155.) court’s 139 Ill. 2d un not be reversed of innocence will bility proffered v. Ward (People its discretion. that the court abused less it shown Here, find that the do not N.E.2d we 101 Ill. 2d *30 the defendant’s offer when it denied trial its discretion court abused of innocence. proof of her evidence re is too uncertain and proffered by The evidence oc evidence mote value. The bundle-transfer any probative to be of of Heather was even body hours curred almost two four before six miles from the bar placed away into the trash barrel and almost a busy in the middle of place daylight rel. This took in broad incident the man Alton, nothing There to link intersection of Illinois. was intruder described transferring alleged bundle Furthermore, there is no that in her evidence testimony. was body bundle a also note that Heather’s baby. contained We found in a in This evidence plastic bag baby afghan. trash and not a was totally irrelevant.
Similarly, lacking probative of the shoe was in prints evidence value. The feet away area the shoe were found was 40 prints where from the trash trash Heather’s body deposited. barrel where barrel was lot of the access only parking three feet away area in addition, in which the riverside In the trash barrel park. baby’s station, body was near a comfort an area which deposited was would naturally generate a lot of foot traffic in a There public place. was evidence of in the There also being park day. other persons was no evidence print of when the shoe was made. The shoe print may have been in made at time before or after the was left any body the trash barrel. The remoteness and of this ren- uncertainty dered it denying irrelevant. The court did not abuse its discretion in the defendant’s proof offer of of this evidence. IV. REASONABLE DOUBT
The defendant a guilty beyond contends that she was not proven reasonable Her argument two-pronged: doubt. under this issue is jurisdiction and venue of not a rea- proven beyond the offense were doubt, sonable and that she not of the offenses of proven guilty murder and beyond concealment of a homicidal death a reasonable doubt.
A. JURISDICTION AND VENUE Defendant it argues that the State failed to had prove jurisdiction to a prosecute beyond her for the offense of murder reasonable doubt because it that Heather’s murder oc- did show curred in this arises State. Defendant asserts that the presumption found, offense of in this body murder occurs where the is case in Therefore, Missouri. to prose- the State had no jurisdiction Further,
cute Illinois. defendant contends State beyond did not reasonable doubt that Madison prove County therefore, and, proper the offense county where occurred venue. is State if an person subject prosecution
Generally,
(Ill.
offense is committed either
the State.
wholly
partly within
1989,
Holt
91 Ill.
par.
5(a)(1); People
Rev. Stat.
ch.
1 —
that an offense is
provides
statute
if
committed in this
“the conduct
element
partly
State
which
element,
offense,
or the
is such an
occurs within
result which
homicide,
(Ill.
5(b).)
the State.”
Rev. Stat.
ch.
par. 1 —
State,
if
oc
body
presumed
is found
the death is
have
*31
1989,
38,
If there
par.
5(b).)
curred in Illinois.
Rev. Stat.
(Ill.
ch.
1 —
Illinois,
in
arising
body
is
the
presumption
finding
no
from
People
doubt.
then
must be
a reasonable
jurisdiction
proven beyond
480,
91
(1982),
v. Holt
Ill. 2d
Likewise, must venue is a material element of an offense which doubt, i.e., county be shown that the where beyond a reasonable oc brought the is the in which the offense prosecution county was 231, 564 N.E.2d curred. v. 205 3d (People (1990), App. Gutirrez Ill. 753; 850; 285, 196 553 N.E.2d People Page (1990), v. Ill. 3d App. 1144.) 530, v. 485 N.E.2d People (1985), App. Hanson 138 Ill. 3d if is may proved evidence and Venue be shown circumstantial crime was it that the there is evidence from which can be inferred (People place. committed in the took county prosecution where the v. 850; 231, People v. 564 (1990), App. Gutirrez Ill. 3d N.E.2d If venue (1985), 530, Hanson 3d App. 485 N.E.2d resolution. controverted, to for jury issue must be a submitted 774.) We 320, 60 Ill. (People McClain evidence find through that the State its circumstantial established of murder for of the offense jurisdiction prosecution both and venue beyond reasonable doubt. Missouri, clear it was
Although in body Heather’s was found Dr. found. was body that the act of murder not occur where the did time the around Case’s that had died testimony established Heather her death. after of her and her frozen disappearance, body that was four 3, 1989, May in body Heather’s was discovered Missouri the that revealed days alleged after abduction. evidence trash in the bag body placed trash Heather’s was containing bag that the 3, 1989, but barrel a.m. on May before 10:30 after 1 present p.m.
Further, it inference we find that reasonable Alton, Illinois. in This County, murdered Madison Heather was bag in which the evidence that trash supported by inference is If taken from the defendant’s home. Heather’s was found was body alive, there to would have been keep baby an intruder intended agree have been taken. We with defend bag no need a trash to to hide taking bag the trash argument ant’s sense, It no baby removing when from home. would make however, bag, place baby only live a trash due not also possibility possibility baby suffocation but due to than crying calling bag just out and more attention to the trash car found, in one’s arms. The could have rying baby jury agree seems to in her if argument you proceed logical killer supposition, conclusion meant use bag body. the trash as a means to hide Heather’s jury could have from the evidence that was dead baby deduced be it fore left defendant’s in the bag. house trash This conclusion is consistent with medical evidence Heather died suffoca being tion but that the suffocation resulted from a hand placed over her nose mouth by simple might and not suffocation which have resulted from placed Heather in a The trash being plastic bag. bag evidence with the medical testimony presented combined sufficient to infer and prove jurisdiction venue Madison County, Illinois, beyond a reasonable doubt.
There is another reason that could jurisdiction find venue in Madison County, Illinois. Defendant wants us concen- trate on Heather’s of lack body, because the loca- tion of the body April May and to forget *32 all of of If, however, the rest the evidence. the evidence showed was the murderer, found, defendant the jury which so and we the concentrate on of whereabouts defendant 29 to April May 3, then we must conclude that the of murder Heather occurred in Madison County, Illinois. The defendant testified that she was in Madison Illinois, on the her County, day of when April husband work, went stayed she in County through Madison May 3. There corroborating was other witnesses as to whereabouts, time, at least to a of portion April the Thus, 29 and April 30. if is proof sufficient show that defendant guilty Heather, was of or in of then participated juris- the murder diction and were proven by venue circumstantial evidence to be in Madison County, Illinois. If the was proof against insufficient guilt Heather, defendant to show of the murder jurisdiction of then 1006 in venue, reasoning, might not lie Madison County, under not course, prove
Illinois. if the evidence is sufficient to defend- Of doubt, the ant a reasonable then beyond jurisdiction guilty venue are moot. questions we the it must find
Finally, jury note that was instructed Illinois, in or- that Heather’s murder occurred in Madison County, the the Because guilty der to find offense murder. jury, the it resolved this guilty obviously verdict returned affirm the de- against jury’s controverted issue the defendant. We termination.
B. THE OFFENSES prove next contends that State failed of a of murder and concealment homicidal guilty of the offenses is con- argument a reasonable doubt. The defendant’s death beyond that, She be- with her murder conviction. asserts primarily cerned circumstantial, all it against her totally cause the evidence murder, commit that she had an opportunity proved beyond a reasonable prove guilty insufficient which was there no evidence as to who killed Heather doubt. She states is Further, argues that State’s evidence does hid her she body. disagree. the crimes. We negate that an intruder committed is re of the evidence challenge sufficiency On appeal, whether, viewing after evidence the standard viewed under any rational trier most light prosecution, in the favorable of the crime beyond have the essential elements fact could found 1.) 2d (People v. Sutherland (1992), 155 Ill. reasonable doubt. circumstantial, Where, here, is the standard is the evidence (Sutherland, a conviction. supports same as when direct judgment its reviewing A court will not substitute 17.) 2d at of the wit determining credibility for that of the trier of fact (Sutherland, 155 Ill. 2d at of the evidence. weight nesses and the credi upon or innocence rests 19-20.) guilt a defendant’s When conflicts witnesses, any resolve trier of fact must bility of the (People Sullivan their presented by testimony. the evidence re 1376.) A is not 3d N.E.2d 183 Ill. (1989), App. v. Sullivan (People testimony. a defendant’s to believe quired 1376.) Lastly, criminal 183 Ill. unreasonable, if the evidence so be reversed only conviction will a reasonable doubt justify as to unsatisfactory improbable, viewed guilt. (Sutherland, Ill. 2d at When State, find that the evidence we light most favorable to *33 improbable no trier of not so unreasonable or rational fact could found the defendant doubt. guilty beyond have reasonable
Here, presented which evidence was established that the defendant was home son and alone with her Heather night of the incident. The witness who testi only defendant was other presence fied as to the of an intruder. No evidence was pre i.e., intruder been no of present, sented that an had evidence disar ray was found and no presented house forced Even could not entry. police dogs support trained defend an ant’s claim of intruder. The removed from the house only objects were and a trash plastic bag. Heather forensic evidence estab lished plastic that the was from the defendant’s home. The bag evi dence revealed that Heather died time approximately same her alleged abduction.
Additionally, credibility was undermined greatly defendant’s throughout trial. she Her was knocked uncon- testimony room, scious was the nurse at the negated by emergency by the ex- amining room, doctor at the Case. emergency by Dr. Once it apparent became the defendant could not have been knocked unconscious that evening, only logical explanation that she lied, and her failure to tell the truth of her events head injury intruder, being eroded there testimony especially when only her established his testimony presence.
When this evidence is considered with the evidence of a similar happened occurrence which three to her first years daughter, before the defendant’s explanations become more implausible. even This where, trial, reinforced at for the time, first she stated that same intruder abducted both of her daughters. It is found the apparent defendant’s testi- incredible, mony and we do not find that determination unreasona- ble. Once the jury story intruder, disbelieved defendant’s of an then the evidence established that and her husband were with the only persons to murder Heather. The opportunity evi- dence overwhelmingly established that defendant either committed killing the actual Heather aided and abetted substantially the planning Heather, and murder that she had have con- cealed Heather’s after the body murder in order to assert Heather’s abduction to the authorities. The defendant was proven guilty the offenses of murder and concealment of a death homicidal be- yond reasonable doubt. V. ACCOUNTABILITY JURY INSTRUCTION trial is relating guilt phase
The last issue
*34
theory
not have been instructed on the
of ac-
jury
should
She
not show that there
contends
the evidence did
countability.
the crimes for
person
was another
who committed
whose conduct
argues that
cre-
prejudice
she was accountable. The defendant
the
the
manifested
by
giving
accountability
ated
the
of
instructions was
its
during
the
sent out a communication
deliberations
jury
when
murder;
first degree
which the
asked: “Under instructions of
jury
to
the Defendant
the act
proposition
perform
the first
have
—does
person
may
per-
for
who
only
responsible
or
another
have
legally
be
find
act
two
We do not
formed the
defined on
attached sheets.]”
[as
instructions were erroneous.
jury
the
a criminal
must be
jury
prosecution
Instructions
given
Terry
508,
Ill. 2d
460 N.E.2d
(People
(1984),
read as a whole.
v.
99
instructions,
whole,
as a
746.)
fully
If the series of
considered
the
of the
forth the law
theories
fairly
applicable
respective
set
defendant,
the
are determined to be
State and the
then
instructions
746.)
(1984),
v.
99 Ill. 2d
460 N.E.2d
(People
Terry
sufficient.
if
absence of
accountability
An
on
is error
there is an
instruction
evidence; however, if
the defend
supports
the
supporting
of
accountability,
as a
and under a
guilt
principal
theory
ant’s
v.
(People
is
Batche
accountability
proper.
instruction
giving of
948.)
evi
Only slight
202
3d
559 N.E.2d
(1990),
App.
lor
Ill.
is
to action as a
accountability,
principal,
in addition
dence on
(People
of an
instruction.
giving
accountability
needed to
justify
Further,
3d
(1990),
App.
v. Batchelor
Ill.
instruction is
accountability
unsupported
if the
giving
is
is
if the evidence
evidence, the
of the instruction
harmless
giving
principal. People
as a
Ernst
guilt
prove
sufficient
We do not with the defendant the jury applied the *35 accountability theory murder, the offense of as the jury was not Further, instructed to do so. after the jury’s communication to the court, the court responded by stating, “You have been instructed as law the court and I cannot the supplement instructions.” The jury was instructed to determine if the defendant guilty as principal the murder, offense of and it found the evidence suffi- cient to find the defendant guilty of this offense. We affirmed the jury’s verdict in our foregoing discussion of the reasonable is- doubt Thus, sue. the giving of the instruction, accountability erroneous, if was harmless error given the sufficiency of the evidence to convict defendant as the principal actor in Heather’s death. VI. EXCESSIVE SENTENCE defendant,
Lastly, relying on People v. Bivens (1987), 163 Ill. 472, 3d App. 738, N.E.2d argues that she did not for a qualify sentence of where, natural-life imprisonment here, as she was charged with murder both as a principal and as an We accessory. find that defendant’s reliance upon Bivens is misplaced. Bivens,
In the defendant was sentenced under the felony-mur der of provision the (Ill. 1985, 38, statute Rev. Stat. ch. 9— par. 1(b)(6))to natural-life imprisonment pursuant section 8—1(a)(1) 5 — of the Unified Code of (Ill. Corrections 1985, 38, Rev. Stat. ch. par. 8—1(a)(1)). The qualifying factor that the Bivens court relied 1005 — the ac- upon imposing the sentence was that murder victim was however, the defendant; presented killed the tually prosecutor guilty his case from the the defendant was mur- perspective accessory. jury provided der as a and as an principal both forms, it the jury with so was unclear whether general verdict the the or as the guilty principal accessory. found defendant Therefore, that, if the had court concluded found appellate accountability, under the guilty theory of murder factor it who had actually was the defendant qualifying did not and a natural-life sentence could apply murdered victim not imposed. be case, however, not
In the defendant’s sentence was instant sought as in Bivens under sought under the same factor but “accompanied by excep factor that her actions were qualifying cruelty.” indicative of wanton brutal or heinous behavior tionally 38, fact, In the court 8—1(a)(1).) ch. (Ill. par. Rev. Stat. 1005 — not con prosecutor out that “the did specifically pointed Bivens find that ‘murder was tend and the trial court did not [the victim’s] or heinous behavior indicative accompanied by exceptionally brutal thus life sentence was cruelty’ imprisonment of wanton 3d (Bivens, 163 Ill. at imposed App. on that basis.” Thus, at is not the defendant’s 751.) dispositive N.E.2d Bivens case. defendant, the standard of re of a reviewing sentence (People its discretion. v. Cox
view whether the trial court abused Further, imposi since the 541.) 2d 412 N.E.2d (1980), 82 Ill. ju most and sensitive of important tion a sentence is one given judg are functions, great weight and deference dicial (1988), 170 (People Generally court. ment of trial that, to defendant’s as contrary also note We imposed upon can sertion, a natural-life sentence where accountability on the basis of guilty found of murder behavior, as it is accompanied by brutal and heinous murder was permits actor that identity act not the the nature of the *36 986, 3d App. 198 Ill. People (1990), v. Foster sentence. 289, 518 165 Ill. 1214; (1988), v. Hines People N.E.2d 1362. N.E.2d can sentence provides that natural-life sentencing statute is “ac the defendant’s conduct where upon
be imposed behavior, indicative or heinous exceptionally brutal companied 38, 8—1(a)(1).) 1989, ch. (Ill. par. Rev. Stat. wanton cruelty.” 1005 — 88 Ill. 2d People in v. La Pointe court held supreme language applied this to the in only fliction of torture or also to conduct unnecessary pain but that was evil[,] bad[,] or “hatefully shockingly grossly enormously and fla ruthless,” criminal” and that grantly “grossly “devoid of mercy compassionf, (La Pointe, cruel and cold-blooded.” or] 353.) Here, Ill. 2d at 431 N.E.2d at find the sup we ported finding premeditated that defendant’s conduct was and cold-blooded. trial, defendant,
At the evidence revealed that or an ac smothered defendant’s infant complice, daughter, six-week-old Heather, her naked in a trash froze the placed body bag, body, then deposited the almost four later in a trash body days barrel a park area less than six miles from defendant’s home. Defendant’s parents town, were out of a fact known to the defendant several days before their it departure, was the State’s theory that Heather’s had body placed been the defendant’s parents’ freezer until just before came home parents from their trip. (The whereabouts of Heather’s after 8 a.m. on body morning April when defendant left her house supposedly go to her sis- home, ter-in-law’s morning May 3 will be a always mys- tery unless defendant elects to reveal such. There was nothing prevented defendant bringing the body back to her house af- ter the police Also, left at 11 a.m.) defendant’s roommate at 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 daughter, other Lora- lei, three years prior. This did not story coincide with defendant’s description of Loralei’s disappearance given and death to the police 1986; however, it paralleled defendant’s description of the events death, of Heather’s though even this description was given roommate six weeks before the incident involving Heather. From the evidence, foregoing it can be concluded that Heather’s death was contemplated birth, at the time of her the defendant premeditated planned Heather’s death so the defendant would have access to her parents’ freezer hide Further, the body. the defendant’s alone ability, or as an ac- complice, to murder her own daughter six-week-old without provo- cation is conduct so it cold-blooded cannot be It contemplated. should also be noted that the jury found defendant’s conduct to exceptionally brutal and heinous when it found her eligible for the death under penalty factor; however, this qualifying found sufficient mitigating Thus, factors not to impose sentence. *37 imprisonment court’s of a sentence of natural-life imposition not an of discretion. defendant was abuse People note that in v. Nitz Finally, we life for acces imprisonment a sentence of an upheld court to a murder who had a clean record. The murder Nitz sory not more or heinous than the murder Heather. brutal reasons, foregoing For of the circuit court judgment is County Madison affirmed.
Affirmed.
SHONKWILER, J., concurs. * MAAG, concurring: specially JUSTICE reasoning opinion of the main and I concur in both should however, emphasize I that counsel separately, result. write courtroom, pressroom. cases tried in the remember that are The report job media the news. job gather is their within represent their case and clients try attorneys the law. bounds of Weber, inter- case, give Mr. chose an In this prosecutor, Dr. Case’s to the midtrial characterize press view me. escapes this interview giving as a motive “surprise.” have never appeal an issue on that should been The result was issue. interview, I reporting no with the press
While I find fault consider carefully counsel should more future believe their own trial abil- characterizing and the their remarks wisdom self-congratulatory in such manner. ity strategy * Maag argument. was later substi- participated in oral Justice Lewis Justice H. audiotape argu- of oral panel has the briefs and listened tuted on the read ment.