APPEAL from the Circuit Court of Cook County; the Hon. FRANK
W. BARBARO, Judge, presiding.
MR. JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:
The defendant, Sidney Foster, was charged by indictment for the murder of Vivian Patterson in violation of section 9-1(a)(2) of the Criminal Code of 1961 (Ill. Rev. Stat. 1971, ch. 38, par. 9-1(a)(2)), and charged with concealment of the victim's homicidal death in violation of section 9-3.1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1971, ch. 38, par. 9-3.1). Following a jury trial, the defendant was found guilty of both offenses and was sentenced to concurrent terms of imprisonment of 125 to 250 years and 2 to 6 years. The defendant's motion for a judgment of acquittal notwithstanding the verdict or, in the alternative, motion for a new trial, and his motion to arrest judgment were denied. This appeal followed.
The issues presented for review are (1) whether the trial court erred in denying defendant's motion for a judgment of acquittal based on the failure of the prosecution to prove beyond a reasonable doubt that the defendant caused the death of the decedent, Vivian Patterson; (2) whether the trial court erred in denying defendant's motion for a judgment of acquittal based on the failure of the prosecution to prove beyond a reasonable doubt that the defendant was sane at the time he committed the acts which constitute the offense of concealment of a homicidal death; (3) whether the trial court erred in denying defendant's motion for a new trial where the court (a) admitted irrelevant evidence which was prejudicial and inflammatory, (b) refused the defendant's offers of proof, and (c) denied defendant's motion to suppress evidence obtained in violation of the defendant's constitutional rights, and (d) where the prosecutor suppressed evidence favorable to the defendant which denied the defendant due process of law, and (4) whether the trial court erred in refusing to charge the jury as requested by defendant.
A few days prior to the commencement of the trial, one of the attorneys for the defendant moved the court to appoint experts to examine the defendant to determine his mental competency pursuant to section 5-2-1 of the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1005-2-1). In the motion, the attorney stated that he had reasonable cause to believe that defendant was presently insane or otherwise so mentally incompetent as to be unable to understand the proceedings against him or properly assist in his own defense and, also, that defendant was insane at the time of the alleged offense of concealment of a homicidal death. According to the record, a hearing was held on the motion on August 11, 1975, evidence was heard, and the motion was denied. There is no transcript of this hearing in the record.
The following pertinent facts were adduced at trial: By January 1974, the defendant had been living with the victim, Vivian Patterson, and her four children, Solomon and Sandra Hudson and Sherri and Ronald Patterson, about 2 1/2 years at her apartment, located at 2030 South State Street, Chicago, Illinois. Foster owned Crown Town Records, a small recording company in Chicago, and managed various young musical groups. Vivian Patterson sang in small night clubs on Chicago's south side. The relationship between the defendant and Ms. Patterson was platonic. Foster was trans-sexual; although he was biologically, physiologically, and anatomically a male, he felt that psychologically he was a female. However, he claimed to be the father of Solomon Hudson who was 12 years old in 1974.
Solomon testified that the defendant insisted he be called Mama, claiming he was Solomon's mother. Without objection, he further testified that Foster forced him to engage in abnormal sexual conduct and to observe defendant engage in sexual acts. Solomon explained that he never told his mother of this abuse.
On January 23, 1974, the dismembered and badly decomposed body of Vivian Patterson was discovered by the Chicago Police after responding to a call regarding a suspicious car parked in a lot at 2030 South State Street. The police noticed a strange odor emanating from the trunk of the car; the trunk was opened and a torso, arms, and legs were discovered wrapped in bed sheets. The only identifying marks on the car were a "Cee Fred" sticker and the auto identification number. The police learned through "Cee Fred" that the auto belonged to the defendant. The corpse was transported to the County Morgue in a squadrol which was not examined for spent bullets after the body was removed.
During the Christmas holiday, 1973, Vivian's four children visited Lucius Hudson, her ex-husband. Sandra, Ronald, and Sherri left on Christmas Day and Solomon joined them 2 days later. Sandra returned home on December 27, 1973, to pick up some clothes. She testified that this was the last time she saw her mother. She again returned to the apartment on December 29, 1973, and Foster told her that Vivian was in California buying a home. Foster cautioned her not to tell anyone about these matters.
On January 23, 1974, Sandra was ill and stayed home from school. Throughout the day, Foster kept looking out her bedroom window down at the parking lot where his car was parked. Foster asked her to accompany him across the street for the purpose of making a telephone call. After placing the call, Foster said they would have to pick the other children up from school. Sandra testified Foster then said that "[she] was going to hate him for the rest of [her] life." They picked up Ronnie and Sherri, and met Solomon on his way home from school. At this time, according to Sandra, Foster stated "he had to get two plane tickets in false names" for himself and Solomon. He placed Sandra, Ronnie, and Sherri in a cab and took Solomon with him to the home of his parents. Detective cars were parked in front, so they exited through the rear and were driven to defendant's sister's home. On January 24, 1974, Foster called the police and voluntarily turned himself in.
In addition to testifying about his relationship with Foster, Solomon testified that he spoke to his mother the day after arriving at Lucius Hudson's home. He again called his mother on December 29, 1973. Foster answered the phone and said Vivian was in California, but he should tell no one this, especially Mr. Hudson. When he returned home on the 31st, Foster told him that Vivian had been in a plane crash in California and was in critical condition. Thereafter, in January 1974, the defendant told Solomon that Vivian was killed by some men who put "her in the trunk of [his] car and it looks like [he] did it." He first said the killers were members of the "syndicate." Then he said "Jiggy" killed her, and finally that "Jimmy Wayne" killed her.
Both Sandra and Solomon noticed a "bad smell" coming from their mother's bedroom when they returned to the apartment. Foster explained that some turkey and chicken bones were left in the room. He refused the children admittance to the room, claiming Vivian had the key in California.
Sometime in January 1974, Diane Adams, a friend, inquired about Vivian. Foster told her Vivian had been injured in a plane crash in California. Diane called her mother in California who heard of no plane crash. Lucille Wood, a neighbor, asked if Vivian was at home on January 20, 1974, and Foster responded that she was on the West Coast. That same night, she received a call for Foster. Foster was summoned, briefly conversed, and after hanging up, told Mrs. Wood that Vivian had been in an accident.
Officers Bobko and Savage interviewed the defendant on January 24, 1974. They told the defendant that he was a suspect in a homicide investigation. Officer Savage read the defendant his constitutional rights. He was asked if he knew anything about Vivian Patterson's death. He replied that he was not sure. Foster asked if the police had been to Vivian's apartment. Savage replied that they had been there. Foster stated he was afraid for the life of himself and his children and that he could relate the circumstances of Vivian's death, but would not name the offenders as that would endanger his child. He said two men from the Mafia had machine-gunned her to death in the bedroom. In the next sentence he said he wanted to tell the truth. He related that Vivian had been selling marijuana and pills from her apartment, that three males, one named Jiggy, had been attempting to get him to sell dope to some rock musicians he employed, and that he had resisted these pressures for about 2 years. Around December 28, 1973, the same men who had pressured him in the past came to their apartment. An argument erupted. The men heard Vivian call from the bedroom. The men entered Vivian's bedroom. Foster heard a shot. As he approached the bedroom, he heard three more shots. He entered the bedroom and ran to Vivian who was lying on the bed. Her head was bleeding. She asked him for help. One of the men put a gun to Foster's neck and threatened that if he did not cooperate, a similar fate would befall him and the children. Defendant left Vivian in the bedroom and locked the door.
Foster next related that about a week to 10 days later, Jiggy called him and said some friends would be over to dispose of the body. Jiggy and another arrived that night, bringing with them a power saw and long-handled ax. Jiggy and his companion amputated Vivian's arms and legs, placed the limbs in green plastic garbage bags, and then moved the torso and bags to the trunk of Foster's car.
At the police station, Foster also spoke with two friends, Shirley Jones and Diane Adams. He expressed his fear for the lives of the children. He told both women that Vivian had been killed by the white Mafia and then told them that Vivian had been killed and dismembered by Jiggy. Diane Adams attempted to locate Jiggy at that time, but was unsuccessful. Later she located Jiggy and spoke to him, but failed to notify the police of her success. Both Shirley and Diane told Officers Savage and Bobko that Jiggy existed and that his girl friend was Yvonne Thorn. The women gave the police a detailed description of Jiggy. After cross-examining Officer Bobko, it came to light that there was a detailed description of Jiggy and the other alleged offenders contained in some hand-written notes of the officer. These notes were not subject to discovery prior to trial.
Investigator Bobko also testified that he had been told that Yvonne Thorn had been a patient at Louise Burg Hospital. He said he checked the hospital records, but found no record of Yvonne Thorn. However, several hospital records regarding Yvonne Thorn or her children were admitted into evidence. These records contained the name, address, telephone number, and welfare number of Yvonne Thorn.
Diane Adams testified that Bobko told Sandra and Solomon Hudson that Sidney had killed their mother. He also told the children that Sidney was jealous of Vivian and that Vivian was getting in the way. Diane said that the police told her the same things and she responded that there was no reason for those allegations as Sidney and Vivian "got along beautiful." She testified further that Officer Bobko, around the time of Foster's arrest, said Foster was not in his mind and "was sick in the head." Diane Adams also related that she thought Foster was mentally disturbed. She explained that Jiggy and "T-Bone" were the same person.
Evidence was introduced that the defendant had access to a .38 caliber Rohm revolver until December 31, 1973. The defendant, accompanied by Solomon, borrowed the gun approximately 1 week before Christmas 1973 from Edward Thomas. Thomas testified that the defendant wanted to borrow the gun because of harassment in regard to the record company business. The defendant refused to handle the gun and asked Thomas to remove the bullets and put the gun and bullets into an empty camera case. The defendant returned the gun to Thomas in a gift-wrapped package on December 31, 1973, and said "he thought he got the `dude' and wouldn't be needing the gun any more." Thomas testified that when the gun was returned, it contained only two shells, one being misfired, and four empty chambers. Shortly after the return of the revolver, Thomas gave the gun to another friend who disposed of the gun when chased by the police. Before returning the gun, the defendant allowed Solomon to play with it, but urged him not to tell anyone about the weapon. One day while Solomon was playing with the gun, Vivian arrived home. Foster grabbed the gun and threw it behind the couch.
The day the victim's body was discovered, the coroner's pathologist, Dr. Shalgos, performed an autopsy on the body. The pathologist could not establish the date of death. The testimony revealed that there were four bullet wounds to the head, two entry wounds, and two exit wounds. The pathologist recovered one pellet from the victim's head which was enmeshed in her hair. He testified that at the time he examined the body, the brain was a mushy mass, showing no bullet tracks. In his opinion, the bullets had passed through the brain, causing death. He also stated that a person suffering from this type of wound would not be able to ask for help. On cross-examination, he testified that there was a remote possibility the bullet coursed around the meninges of the brain. With this type of wound, a person would be able to ask for help.
The pellet recovered from the victim's head was identified by a firearms examiner for the Chicago Police Department as a .38 caliber bullet which had been fired through a bore having eight lands and grooves with a right-hand twist. The firearms examiner testified that due to the condition of the bullet recovered, it would be impossible to determine the particular gun which fired the bullet even if the firing gun was available. He further testified that Rohm revolvers have two sets of class characteristics; those with 8 lands and grooves with a right-hand twist and those with 10 lands and grooves with a right-hand twist. Likewise, at least four other models of revolvers have the class characteristics of eight lands and grooves with a right-hand twist.
Officer Bobko testified at the preliminary hearing in this cause that two pellets were removed from the victim's head by Dr. Shalgos, the pathologist. His police report contains the same data. However, at trial he testified that only one pellet was removed.
Samuel Thomas, a witness for the prosecution, testified on cross-examination that he had seen Vivian Patterson alive on January 4, 1974, and that he had related this information to the assistant State's Attorney. The witness further testified that the assistant State's Attorney told him this was impossible as the autopsy report indicated Vivian had died around December 28 or 29, 1973. The State did not inform the defense of this evidence despite defendant's motion for discovery.
Darnell Glover, a witness for the defense, testified that he spoke with Vivian Patterson on the telephone sometime during the first week of January 1974. Miss Adams testified that she spoke to Vivian Patterson on the telephone on New Year's Day.
Wilbur Richburg and Marvin Morgan, acquaintances of the defendant, testified that Foster offered them $5000 each to help dispose of Vivian Patterson's body. Richburg testified that he met the defendant at a party at Morgan's house several days before New Year's Eve. Morgan stated that he did not have a party at his house, but that he met the defendant at a party at another friend's house on New Year's Eve. Both testified that they left the party with Foster, proceeded to Vivian's apartment, saw Vivian's corpse, but did not see Solomon Hudson or any of the other children. Solomon Hudson testified that he was at home on New Year's Eve.
Richburg and Morgan further testified that the defendant sold an old car for $10, gave them the money and asked them to purchase cardboard barrels. Sometime in the middle of January, late at night, they returned to the apartment with the barrels. The body was dismembered. They were unable to fit the torso in one of the barrels, even after the arms and legs had been amputated. Instead, they wrapped the torso in bed sheets and put the limbs in large plastic bags. Richburg and Morgan dragged the body out of the bedroom to the elevator and then to Foster's car. Richburg and Morgan testified that they were seen with the body on the elevator. Before returning to the apartment, Foster removed the "license-applied-for" sticker from the windshield. Foster suggested keeping watch at the window for the police. The next morning, Foster gave the trunk key to Richburg ...