Appeal from the Circuit Court of Cook County; the Hon. Daniel
J. Ryan, Judge, presiding.
MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 29, 1974.
This is a direct appeal from the circuit court of Cook County, which, after a jury trial, adjudged the defendant, Phillip Manzella, guilty of the murder of his two sisters-in-law, Colleen Mulcahy and Claudia Daubenspeck, and of the attempted murder of his former wife, Candace Mulcahy Shell. Pursuant to the jury's recommendation, the trial court sentenced the defendant to death for the murders, and to a term of years in the Illinois State penitentiary for the attempted murder, the minimum of which is conflicting in the common-law record, wherein it is recited to be from 10 to 20 years, and in the report of proceedings, wherein it is recited to be from 15 to 20 years.
The judgment below must be remanded because of the imposition of the death sentence. In accordance with the determination of the United States Supreme Court (Furman v. Georgia (1972), 408 U.S. 238, 33 L.Ed.2d 346, 92 S.Ct. 2726; Moore v. Illinois (1972), 408 U.S. 786, 33 L.Ed.2d 706, 92 S.Ct. 2562) that the death penalty which juries are authorized to impose in capital cases under statutes such as those in Illinois is violative of the Constitution of the United States, we have affirmed the convictions, but vacated several such sentences and remanded the causes to the various circuit courts with directions to conduct a hearing in aggravation and mitigation, and to resentence the defendant to a sentence other than death. (People v. Speck (1972), 52 Ill.2d 284; People v. Newbury (1972), 53 Ill.2d 228; People v. Clark (1972), 52 Ill.2d 374.) We likewise so direct in this case.
However, in addition to remanding for resentencing, we also find it necessary to consider certain errors that were allegedly committed during trial which the defendant contends require reversal. We disagree.
To more fully understand these errors, it is necessary to review the pertinent facts as adduced at the trial. The defendant's former wife, Candace, testified that on December 4, 1967, the defendant, Phillip Manzella, rang the doorbell of her apartment; that she was still awake and was watching television with her sisters, Claudia and Colleen; and that after she looked out the front window and recognized the defendant's car, the women decided to let him into the apartment, believing that because of their number, they were safe. Before entering the apartment, however, Candace searched the defendant's pants and coat pockets for a weapon, and found none.
After admitting him to the apartment, the three women went into the kitchen with the defendant where they had a conversation with him concerning his statements that Colleen was on dope and smoking marijuana at the school she attended. After ten minutes of this conversation, Claudia ordered the defendant out of the house and told him that he should never return. He agreed to leave, but before doing so, he turned and said: "But before I go, I've got something for you," and then shot Claudia, Colleen and Candace. The shots killed Claudia and Colleen immediately, but Candace was neither killed nor rendered unconscious. She recognized muffled sounds as footsteps coming towards her, and then before losing consciousness, felt a heavy object pounding on her head.
When Candace revived, she saw her sisters lying on the floor motionless. She arose and made her way to the front door, tried to get out, and discovered that the key needed to unlock the door was missing. She then became aware of somebody standing behind her, and when she turned, saw the defendant holding a knife that had been hanging in the kitchen. Manzella attempted to stab her; she tried to push him away but instead fell to the floor. The defendant then stabbed her in the back and she again lost consciousness.
When she regained consciousness she realized she was very weak and could barely breathe. Despite great difficulty in walking, she made her way to her mother's bedroom. She turned on the light and said to her: "Where is he?" Her mother, being deaf, had slept through the shooting and screaming. When her mother answered "Where is who?" Candace said, "Phil, he killed them."
Candace became frightened at the thought that Manzella might still be in the house, and she went into another bedroom and shut the door. Her mother got up to go after her, but then noticed her grandson and little granddaughter going into the kitchen. She thought that the defendant might still be in the house so she took the grandchildren with her to the bedroom where Candace was. Candace unlocked the door to let them in, then went into the closet to hide. However, her mother helped her out and onto the bed. Candace then called the telephone operator and related what had happened. Her mother noticed the knife protruding from Candace's back and was able to pull it out. She recognized the knife, even with the handle broken off, as having come from her kitchen set.
Candace met the first policeman to arrive at the door. He observed her bleeding from the head and back, and saw the two bodies lying in the kitchen with blood issuing from the head of each. Candace was then removed to the hospital.
Additional testimony on direct examination of Candace elicited that there had been a series of incidents following her divorce in which the defendant had harrassed her by following her, physically abusing her, and attempting to frighten her. She also testified that in mid-July of 1967 he entered her home at 2 A.M., wearing a disguise and claiming to be a killer hired by Phillip Manzella to shoot his ex-wife; that the disguise was so poor that the entire family recognized the intruder as the defendant, Manzella; that nevertheless, he kept the family at bay for two hours with a snub-nose revolver; that after he left, the police were called; and that charges, which were filed three days later, were eventually dropped.
She also described another occurrence which took place about a month before the shooting incident out of which the murder charges arose, at which time she and the defendant got into an argument in a lounge and at which time he punched her girl friend, Arlene Soper Niemiec, in the jaw, and subsequently hit Candace ...