APPEAL from the Circuit Court of Cook County; the Hon. THOMAS
J. MALONEY, Judge, presiding.
MR. PRESIDING JUSTICE JIGANTI DELIVERED THE OPINION OF THE COURT:
Following a jury trial in the circuit court of Cook County, the defendant, Janice Byer, was found guilty of murder and robbery and was sentenced to a term of 21 to 30 years in prison. On appeal, the defendant argues she was denied a fair trial because (1) cross-examination of the State's witnesses was restricted and the court refused the admission of impeaching evidence; (2) the trial court refused to ask the venire about their attitude concerning the affirmative defense of compulsion; (3) the testimony of a witness at the suppression hearing was excluded; and (4) the State asked the defendant an allegedly improper and prejudicial question. Additionally, the defendant argues she was not proved guilty of murder and robbery beyond a reasonable doubt. She also contends that the trial court erred in sentencing her to 21 to 30 years on the robbery conviction; she contends the court should have allowed her to present two jurors in mitigation at her sentencing hearing; and, finally, the defendant argues that her sentence is excessive.
The defendant concedes her involvement in the crimes charged and presents an affirmative defense of compulsion.
Before trial a hearing was held on the defendant's motion to suppress her oral and written statements which were given at the time of her arrest. On appeal, the only issue relating to the suppression hearing concerns the court's restrictions on the scope of Stella McCormick's testimony. The defendant argues McCormick's treatment by the police during questioning was similar to the treatment she received and would have corroborated her claim of coercion. Only the hearing testimony pertinent to this issue will be related here.
Police officers Donnersberger and Lawrence each testified that the defendant was advised of her Miranda rights and that she was not threatened and was not given any promises. During McCormick's testimony defense counsel made an offer of proof that if McCormick were allowed to testify she would say that when she came to the station she was told she would be charged with murder unless she cooperated with the police. She was also told that her children would be taken away from her; she said she was not advised of her constitutional rights before giving a statement.
The defendant testified that she was not informed of her rights until after many hours of questioning; that she was handcuffed to the wall and threatened by the police; that she was told she would not see her children for a long time; and that the police said she would receive a one year sentence and five years probation for her part in the crime. The court denied the defendant's motion to suppress her statements.
Prior to the questioning of the venire, defense counsel submitted certain questions to the trial court and asked that those questions be asked of the prospective jurors. The request was denied. One of the tendered questions concerned the jurors' attitude to the affirmative defense of compulsion: "Do you feel that a mother, to protect herself and her children, from being hurt might involve herself in a crime, and even be willing to go to jail to protect herself and her children?" The court did not ask the prospective jurors any questions about the affirmative defense.
At trial Chicago Police Officer Robert Eggert, Jr., testified that on August 1, 1976, at approximately 10:40 p.m., he went to 937 West Cornelia in the City of Chicago in response to a radio call. When he and his partner arrived at the building they were led to apartment 108. They found the door to the apartment slightly ajar, and when Eggert pushed it open he observed that the room was in total disarray. A man was lying on the floor with his face in a pillow. The man was dead. The defendant, who had made the call to the police, told Eggert that she noticed the door to the apartment ajar and thought it unusual. She said she went into the apartment and discovered the victim face down with a towel tied around his face and a chair over him. She called the police.
Dr. Eupil Choi, a pathologist with the Cook County Medical Examiner's Office, testified that he performed an autopsy on the victim. Dr. Choi gave his opinion that the cause of death was cardiac arrest with associated asphyxia.
Investigator Joseph Stachula testified that he talked to the defendant on August 1. She told him basically the same story as told to Eggert concerning her discovery of the body. She also told him that on the afternoon of July 31 she saw a young woman enter the foyer of the building and check the mailboxes. The defendant asked the woman if she could help her and the woman asked to be directed to apartment 108. The woman said she was looking for Nicholas Orga, the victim, in response to the defendant's question.
McCormick, the common-law wife of Charles Colley, testified that on the afternoon of July 31, 1976, she was in her father-in-law's apartment at 937 West Cornelia, along with the defendant, Charles and Kenneth Colley, and their father William Colley. The defendant suggested to the two Colley brothers that the three of them rob the victim, Nicholas Orga. The defendant mentioned that Orga would be getting a Social Security check and that it would be easy to take it from him. About 5:30 p.m. McCormick left the apartment with her husband, Charles Colley. McCormick and Charles Colley later returned to William Colley's apartment. The defendant was still in the apartment with Kenneth and William Colley. Jeanette Bunch, Kenneth Colley's common-law wife, Robin Rowe, and Sherry, Rowe's girlfriend, were also present. The conversation concerned robbing Orga. Bunch mentioned that she had some pills which could be used as knock-out drops. Bunch located the container of pills, added water, shook it up, and gave the pills to the defendant. Bunch told the defendant that a heart attack could occur if too large a dose was given to someone. The defendant and Sherry took the drug and went to the victim's apartment. Sherry, who posed as a prostitute, was unable to get into the victim's apartment.
The defendant then went alone to the victim's apartment. When she returned in about 20 minutes she informed the brothers that "he is almost out." Kenneth Colley then left the apartment and returned 15 minutes later to get his brother Charles. After the Colley brothers left the apartment, the defendant went out and returned with a blue suede coat, some groceries, and a bottle of whiskey. The defendant stated that the whole thing was very easy.
McCormick stated that everyone in the apartment was drinking beer that afternoon and everyone but the defendant was taking preludins or speed. She testified that she never heard anyone threaten either the defendant or her children. McCormick had no knowledge of any grudge which Kenneth Colley had against the victim. She also testified that approximately three weeks prior to the robbery, a conversation took place between the defendant and Charles and Kenneth Colley. No one was drinking on that day and no one was taking drugs. The defendant told the Colley brothers that Orga would soon be getting some Social Security checks and suggested that they rob him. Charles and Kenneth Colley stated that they wanted no part in any robbery.
McCormick acknowledged that she did not tell the police about the incident until August 19, 1976, when she was brought to the police station for questioning. She was told by the police that she would be held in custody until her husband, Charles Colley, turned himself in. Epplen did not threaten to charge her with murder if she did not cooperate; nor did he tell McCormick that her children would be taken away unless she gave a statement. McCormick also testified that she was not told that the Colley brothers would get a lighter sentence if she testified against the defendant.
Robin Rowe, the Colley brothers' cousin, testified that on July 31, 1976, he was present at William Colley's apartment. He testified to the same sequence of events as McCormick. The court refused to let defense counsel impeach Rowe with the fact that he was on supervision for robbery while a juvenile.
Epplen testified that the defendant accompanied him to the police station on August 19, 1976. She initially denied any involvement in the robbery and murder, but later acknowledged that her previous statement was not true, and admitted her involvement in the crimes. On cross-examination Epplen testified that he had had an earlier conversation with the defendant. At that time, she informed him that approximately a week before the murder she witnessed an argument between William Colley and the victim, concerning some money that William Colley owed the victim. Shortly after this, Kenneth Colley made the statement that he did not like the fact that his father was being embarrassed and that he would like to teach the victim a lesson.
Donnersberger testified that in the early morning hours on August 20, the defendant gave him a statement concerning her involvement in the robbery and murder. Donnersberger read the document in open court. He also testified that the defendant never told him that the Colley brothers forced her to commit any criminal act.
The court allowed defense counsel to amend his discovery answer by adding to his list of witnesses Michael Bradford, a law student who was present during a conversation involving McCormick, and Mrs. Spears, a record keeper at the Cook County jail. The State objected arguing that Bradford had violated the witness exclusionary rule by remaining in the courtroom after it was clear that his testimony would be necessary to impeach McCormick. Bradford was in court during almost all of the testimony in the case. The defense argued that no actual prejudice to the State had occurred and that Bradford should be allowed to testify to a conversation which occurred between defense counsel and McCormick. The court refused to allow the defense to call Bradford as a witness because Bradford had violated the exclusionary rule. The defense made an offer of proof in which he said that if Bradford were allowed to testify he would state that two days prior to McCormick's in-court testimony she told defense counsel that Epplen threatened to charge her with murder and take her children away if she did not cooperate with the police.
The State also objected to Spears' proposed testimony which would establish that Kenneth Colley was in the Cook County jail from May 21 to July 19, 1976. The defense offered this testimony to impeach McCormick's statement that the defendant suggested to the Colley brothers that they rob the victim "approximately three weeks" before the actual offenses were committed. The defense argued that because Kenneth Colley was in custody exactly three weeks before the crime, no such conversation could have occurred. The court excluded Spears' testimony because McCormick had said that the conversation took place "approximately" three weeks before the robbery and murder, and, therefore, a direct contradiction was not present.
The defendant testified that on July 31, she and her children went to William Colley's apartment for dinner. They were joined by Colley's two sons, Kenneth and Charles, and Charles' wife, McCormick. Kenneth asked his father if the victim had given him any more trouble about the money owed him. Mr. Colley said no. Kenneth said he did not like the way the victim had treated his father and that the victim should be taught a lesson. The defendant told Kenneth that the victim was an old man and Kenneth should leave him alone.
A little while later Bunch, Kenneth's wife, came to the apartment. Kenneth again brought up the subject of robbing the victim. Kenneth decided that the defendant and Bunch should go up to the victim's apartment. The defendant said she did not want to be involved. Kenneth then threatened the defendant and said if she knew what was best for her she had better do as she was told. Kenneth had a large knife in his hand while he was speaking to the defendant ...