APPEAL from the Circuit Court of Cook County; the Hon. FRANK
J. WILSON, Judge, presiding.
MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:
Defendant was indicted for murder, armed robbery, aggravated kidnapping and theft in the disappearance and death of Taweeyos Sirikul. (Ill. Rev. Stat. 1975, ch. 38, pars. 9-1, 18-2, 10-2(a)(3) and 16-1(a)(1).) The trial court allowed the State's nolle prosequi motion on the theft charge and the remaining charges were tried before a jury. At the close of the evidence, the court directed verdicts for defendant on the aggravated kidnapping charge and on the felony-murder count related to the aggravated kidnapping charge. The remaining murder counts and the armed robbery charge were submitted to the jury which found defendant guilty of both offenses. Judgment was entered on the verdicts and a presentencing investigation was ordered. After a hearing, the court sentenced defendant to concurrent terms of 20 to 60 years for the armed robbery and 150 to 300 years for the murder.
On appeal, defendant contends that: (1) the jury instructions for armed robbery and murder were improper; (2) the State failed to prove the victim's identity beyond a reasonable doubt; (3) the trial court improperly excluded evidence which was probative of the defense theory; (4) the State's rebuttal argument deprived defendant of a fair trial; and (5) the trial court abused its discretion in sentencing defendant. We affirm.
In the course of the trial, the State called 13 witnesses and offered and had received in evidence 47 exhibits. Defendant did not testify. His case consisted of 11 exhibits, 5 of which were admitted in evidence, and the testimony of 2 witnesses. A summary of the pertinent evidence adduced at trial follows.
In February 1977, Taweeyos Sirikul lived with his fiancee, Busaba Burakasikorn, at 5815 North Sheridan Road in Chicago. The two had come to the United States from Thailand to pursue graduate degrees at Roosevelt University. Ms. Burakasikorn knew Sirikul's family in Thailand, where Sirikul's father had what she believed to be a supervisory position with the police in Bangkok. Two of the brothers of Sirikul's father also worked for the government, one as a policeman, the other in the military. Ms. Burakasikorn was registered with the Department of Immigration and had a student visa. She had received her degree and was working at a nursing home near their apartment and Sirikul was working from 3 p.m. to midnight while finishing his studies.
Sirikul owned two cars at the time, a red 1976 Trans Am and an older Chevrolet. Sirikul put his Trans Am up for sale, placing an ad in the Chicago Sun Times on February 21, 1977. The ad described the car, listed Sirikul's phone number, and indicated that interested persons should call before 2 p.m.
On February 25, 1977, Ms. Burakasikorn received a phone call around 1 p.m. from a man who was interested in buying the Trans Am. They arranged for him to come over the following day, a Saturday, when he and Sirikul took the car for a test drive. Ms. Burakasikorn identified the man as defendant. After test driving the car, defendant borrowed $1 from Sirikul and left. On Tuesday, March 1, 1977, defendant again came by to see the car, this time borrowing $3 from Sirikul and leaving his watch as security. Defendant was to repay the money on Thursday, March 3, 1977, but when he hadn't arrived by 2 p.m., Sirikul left. At 2:30 p.m. the phone rang, but no one was there when Ms. Burakasikorn answered it. A few minutes later defendant knocked at the door and asked if Sirikul was there. Ms. Burakasikorn told him to come back the following day. At about 3 p.m. defendant returned to the door and asked if Sirikul had left the watch for him. Early the following morning, March 4, 1977, Ms. Burakasikorn and Sirikul were at home together when the phone rang. Sirikul answered and told Ms. Burakasikorn it was the same man who had test driven the car. Sirikul left the apartment shortly before 9 a.m., wearing a leather jacket that matched one he had given Ms. Burakasikorn. It was the last time Ms. Burakasikorn saw him alive.
Ms. Burakasikorn worked from 9:30 a.m. to 12:30 p.m. on March 4, 1977, and Sirikul was not at home when she returned although they had planned to go shopping. She later called his employer and discovered that Sirikul had not arrived at work that day. Ms. Burakasikorn first called the police around 8 p.m. When her report that her boyfriend was missing was met with the response that he was fooling around with another woman, Ms. Burakasikorn called the police a second time, identifying herself as Sirikul's wife. She described the man who had come to the apartment and said that he gave his name as Brian, that he worked at a Jack-in-the-Box restaurant and that he carried a briefcase.
Defendant did not go to school on March 4, 1977. At about 5 p.m. that day, he drove to the home of Lindsay James, one of his high school friends, arriving in a 1975 or 1976 red Trans Am which James had never seen before. Another friend, Roosevelt Jones, had been visiting James, and defendant drove the two of them to Alden Park in the Trans Am. Defendant and James eventually drove to Evergreen Plaza shopping center, where defendant gave James Sirikul's paycheck, driver's license and Social Security card. Defendant told James to cash the check and they would split the money from it, asking James to endorse the check because he fit the description on Sirikul's driver's license better than defendant. James went into a currency exchange and, with defendant standing a bit behind him, signed Sirikul's name and cashed the check. James received approximately $120 and gave $50 or $60 to defendant. The two returned to James' house and defendant left in the Trans Am around 9 p.m.
Ulysses Terhune, another of defendant's friends, saw defendant around 8:30 or 9 p.m. on March 4, 1977, when defendant drove up to Terhune's home in a 1976 red Trans Am which Terhune had never seen before. Defendant and Terhune went to a nearby park where defendant let Terhune drive the Trans Am.
Terhune saw defendant in the same Trans Am around 10:15 a.m. the following day, March 5, 1977. Defendant's girlfriend was also in the car and they stayed at Terhune's until about noon. Defendant picked up Lindsay James at James' house around noon and they drove the Trans Am to Evergreen Plaza, where they bought some clothes. They paid for their purchases with a personal check that James signed in Sirikul's name, using Sirikul's driver's license as identification. Later in the day, defendant drove the Trans Am to Terhune's house and the two drove over to the home of Brian Rogers. Terhune, in the back seat en route to another friend's house, noticed what he thought to be blood splattered on the back window. Defendant and James drove to the automobile show the same day.
On March 6, 1977, Sirikul's family employed a private investigation firm, Beaton and Associates, to investigate Sirikul's disappearance. William Beaton, the owner, was the personal investigator of Dr. Robert Stein, the chief medical examiner of Cook County. The investigation was conducted by Frank Klee who, prior to joining Beaton, was a counterintelligence agent for the United States Army for four years and still served as a reserve criminal investigator for the United States Air Force. Klee interviewed Sirikul's two uncles, Ms. Burakasikorn, one of Sirikul's co-workers and persons in Sirikul's neighborhood. Klee's investigation of Sirikul's disappearance had nothing to do with his work for the Air Force or Army.
James, Terhune and other friends of defendant had also seen defendant driving the Trans Am during the next two weeks. James rode home from school in the car nearly every day. Homer McCoy, who said he was defendant's best friend, saw defendant frequently during the school week of March 7 to 11, 1977. He knew defendant planned to get a Trans Am on March 4, 1977, and defendant had driven McCoy and his sister to and from school in the car during the week that followed. McCoy had asked defendant to open the trunk of the car so that he could see how big it was and put his books inside, but defendant never opened the trunk for him. During the week of March 7 to 11, McCoy had also noticed that defendant burned incense in the car and kept a can of air freshener in the back seat. Once, the incense was so strong that McCoy had to open the window of the Trans Am for fresh air.
On March 9, 1977, Terhune and Rogers were standing about two feet from the trunk of the car when Terhune noticed a smell "like some kind of dead matter." On March 12, 1977, defendant picked Rogers up at home after meeting Terhune at his home. Terhune drove his own car while defendant drove the Trans Am. They went into the alley behind Rogers' house where Terhune took the back tires off the Trans Am and replaced them with "mag" wheels. Terhune used his own jack because defendant would not let him open the trunk of the Trans Am to get the jack from there. While he was changing the tires, Terhune again noticed the smell emanating from the trunk. After changing the tires, Terhune drove the Trans Am around the block and heard a muffled thumping sound in the trunk whenever he quickly drove around a corner, came to a bump or stopped the car. Joseph Barbee, another friend and classmate of defendant, was also present that night and heard a flat, thudding sound coming from the trunk whenever they hit a bump as defendant drove him home in the Trans Am.
Some time during the week of March 7 to 11, 1977, Barbee was sitting in the 1976 red Trans Am in the school parking lot with defendant and another friend. Defendant left the keys in the ignition and entered the school. By the time defendant returned, Barbee and the other young man had taken the keys out of the ignition and locked the car so they could go into school. They began to tease defendant by playing with the keys but defendant became furious when they put the keys into the trunk lock.
In the morning of March 15, 1977, Terhune saw defendant at Hales Franciscan High School, the school they attended. Defendant was putting a CB antenna on the Trans Am. The trunk was open and Terhune could see a spare tire, a jack, a lug wrench and a can of clothes freshener. Terhune and defendant took the Trans Am to traffic court and Terhune paid a traffic fine. They then returned to school. McCoy also saw defendant at the school as defendant was connecting a CB radio in the Trans Am, although McCoy wasn't sure if it was March 14 or 15, 1977. The trunk was open, but McCoy did not look inside. That same evening, Terhune, defendant and three others rode in the Trans Am but Ternhune no longer noticed the odor he had smelled previously. As they rode along the expressway, they were stopped by the police. Defendant did not pull over immediately and appeared to be nervous and tense when he noticed the officer behind him.
In the evening of March 17, 1977, Terhune met defendant at 71st and Carpenter. Defendant drove up in the Trans Am, which no longer had a rear window. They drove to Terhune's house, parking the Trans Am in back of the house, and defendant took some articles out of the car, including the car's foreign-made radio-cassette tape player. In taking out the radio defendant tore out the bottom of the dashboard. Defendant also took a jacket, with Sirikul's Social Security card in it, out of the Trans Am. He put all of the articles into Terhune's car and parked the Trans Am in front of Terhune's house. Terhune then drove defendant home to 5212 1/2 South Drexel. As they entered defendant's lobby, Terhune noticed the same odor he had smelled near the trunk of the Trans Am before March 15. The Trans Am stayed in front of Terhune's house until March 19, 1977, when Terhune parked it in his aunt's garage. Defendant moved the car to a vacant lot on March 23, 1977. On March 19, 1977, Terhune and defendant took public transportation to 5815 North Sheridan Road at about 8 a.m. The two entered the building, and defendant picked up the security phone and began talking.
Terhune knew defendant to use the name "Brian Wilson" and also testified that defendant had once drawn a knife in the course of an argument they had. James knew defendant to carry a briefcase with a knife inside and Barbee had seen defendant with a knife 15 to 20 times. According to Barbee, defendant carried his knife in his pocket and had drawn it on Barbee in anger.
Robert Holmes was the janitor for the U-shaped apartment complex at 5210 to 5218 South Drexel which included defendant's apartment at 5212 1/2 South Drexel. The basements to the 14 buildings in the complex were abandoned and all had doors with locks, which frequently broke and needed replacement. The basement to the 5212 1/2 building was accessible only through a corridor off the back alley and could not be seen either from Drexel or the alley. Holmes occasionally stored things in the basement at 5212 1/2 and had a fold-away bed and a desk there on March 14, 1977. On March 14, Holmes and three others had been in the basement, entering after Holmes unlocked the Yale brand lock on the door. He noticed nothing unusual in the basement that day and locked the door as everyone left the basement.
The following day, Holmes noticed an unusual odor coming from the basement. There was a new lock on the door but he did not have a key and didn't know whose lock it was. On March 19, 1977, Holmes noticed a "rotten, bad odor" when he entered the 5212 1/2 building. He checked the two vacant apartments in the building, removed some garbage from a rear porch and, still smelling the odor, looked into the basement window to see if some sewage had backed up. He saw the shadow of a figure lying on the basement floor, asked some workers to take a look, and called the police when they concluded that there was a body on the floor.
Officer Stanley Zablocki of the Chicago Police Department was the first police officer to arrive at the building. Zablocki and his partner arrived at about 10:15 a.m. and were directed to the basement by Holmes. Another officer arrived and conversed with Zablocki and Holmes, after which they looked into the basement window and saw a body inside. The basement door had a padlock on it and neither Holmes nor the officers had a key. After receiving authorization from a superior, Zablocki cut the lock with his bolt cutters. Zablocki gave the lock, a German-made "Abus" brand lock, to Officer Robert Okon who was also at the scene. Okon later inventoried the lock.
According to Zablocki, there was a strong odor upon opening the door after removing the lock. The police officers entered the basement and saw an uncovered, clothed male body lying in the front in an open area about 20 feet to the right of the entrance. Zablocki notified the department and other officers, homicide investigators, mobile unit evidence technicians, and the medical examiner's investigator arrived.
Investigator Frank Laverty went to the scene with his partner, John Janda, and entered the basement. In walking through the basement to the back wall where the body was, he noticed drag marks in the accumulation of cement dust on the floor. The body was fully clothed and was lying face down on the floor with one arm beneath the face. There were two brown electrical cords around one wrist. The victim's jacket was pulled up around his shoulders, revealing a blue and pink striped shirt. The victim also wore brown slacks, a belt and socks, but no shoes. Laverty was unable to detect the victim's race or age at the time and awaited the arrival of the mobile unit of the police crime laboratory.
Officer Alfred Klaser, an evidence technician assigned to the mobile crime laboratory, arrived at the scene with his partner, James Dunbar, at approximately 11 a.m. Klaser photographed the scene and unsuccessfully searched the basement for physical evidence. He also dusted some bottles for fingerprints. He saw no blood or liquid in the drag marks which led from the stairs to the body. The body was turned over after Klaser finished taking pictures. Klaser stated that the face was badly decomposed and he could not tell the race of the victim.
Investigator Laverty was still present when the body was turned over. He examined the victim's hands, chest and face, and stated that the victim's face appeared to be compressed. Large amounts of what Laverty believed to be body fluids were found around the face and in the chest area.
Myron D. Weigle was a medical investigator for the Cook County medical examiner's office. He was sent to 5212 1/2 South Drexel to conduct the medical examiner's investigation, which had been assigned case number "573 March 1977." He took some Polaroid pictures of the scene and the body, noting on the pictures at the time that the victim was a male Negro. Weigle believed the victim to be Negro because his complexion appeared to be dark in the pictures Weigle took and the body was found in a black neighborhood.
After all photographs were taken at the scene, Officer Zablocki and his partner transported the body first to Michael Reese Hospital, where it was officially pronounced dead on arrival, and then to the Cook County morgue.
On March 20, 1977, Officer Klaser and Officer James Biggers went to the county morgue to attempt to fingerprint the victim after taking additional photographs of the body. Three fingers of the right hand were found to be possible sources of fingerprints but the remaining fingers were too badly decomposed to try to take prints of them. Klaser sent the fingerprint card with the three prints to the identification section, but the results of the fingerprint examination were not known.
The autopsy was begun on March 20, 1977, by Dr. Tae An, a forensic pathologist employed by the medical examiner. Dr. An performed an external examination of the body and found the body to be moderately decomposed. The skin had areas of a greenish discoloration, with the rest of the skin appearing to be white. A large area of skin was peeling off the body due to decomposition. In performing the external examination, Dr. An was primarily concerned with finding signs of trauma. He did not observe any unusual marks, scars or deformities on the body and therefore did not write any down on his report. Dr. An noted that the eyes were protruding and there was a stab wound in the right chest. He also noted a leather cord tied around the right wrist and a stab defect in the victim's shirt.
The internal examination disclosed that the stab wound was about 3.6 inches deep and had cut through the liver, the inferior vena cava and the diaphragm, and had gone into the chest cavity. The stab wound was the cause of death, Dr. An concluded. He found no pathological lesion to the head.
Dr. An was unable to make a precise determination of the victim's race because decomposition makes such a determination difficult. It is especially difficult to distinguish among whites, Orientals and Latins once decomposition has begun, and he usually confines his classification in such cases to the broader categories of black and white. He therefore classified the body in case number 573 March 1977 as white. Dr. An also had no opinion as to exactly when the body met its death because the rate of decomposition is affected by many factors. He did speculate, however, that the body had probably been dead for a few weeks as opposed to a few days or months.
After Dr. An completed his examination of the body, he took blood, bile and liver specimens and sent them to the toxicology department for analysis for alcohol, tranquilizers and narcotics. The tests showed no tranquilizers or narcotics in the body, but the blood contained 172 milligrams percent ethanol, which exceeds the 100 milligram level which is considered legal intoxication in Illinois. He explained that gas is created during decomposition and leads to the formation of ethanol in the blood. Dr. An stated that concentrations of 100 to 200 milligrams percent ethanol in the blood can be found in decomposed bodies without necessarily meaning that the deceased had been drinking.
On March 23, 1977, Ms. Burakasikorn went to the Cook County morgue where she met Investigator Patrick J. Seary. Ms. Burakasikorn was first shown some clothing taken from the body and identified it as being similar to clothing worn by Sirikul the last time she saw him. She looked at the left arm and, seeing a mole, identified the body as Sirikul. Ms. Burakasikorn had an identical mole on her right arm, and the two had occasionally talked about their identical moles. The rest of the body was covered but Ms. Burakasikorn was convinced that it was Sirikul. She became faint and did not look at the body any further.
Leonard Friel, an embalmer and funeral director, picked up Sirikul's body at the morgue on March 24, 1977. The body was identified both by Sirikul's name and by case number. Sirikul's body was placed in a metal casket that is specially sealed for the transportation of decomposing bodies. Friel also picked up a bag with clothing in it, including Sirikul's brown jacket. Some friends or relatives of Sirikul were at the morgue and preceded Friel to the Sottile Funeral Home, where the body was partially embalmed. John Shear, the undertaker, arranged the funeral. Due to the state of decomposition, an open casket was not used, but Friel and Shear did open the casket so that four or five friends or relatives of Sirikul could view the body.
Atchada Kesornsook, a long-time friend of Sirikul, viewed Sirikul's body at the funeral home on March 24, 1977. Kesornsook had known Sirikul for 15 years. The two had gone to school together and had lived together for a while after Kesornsook came to Chicago. He and his wife lived in the same building as Sirikul and Ms. Burakasikorn. Kesornsook and Sirikul worked at the same place. The last time Kesornsook had seen Sirikul alive was on March 3, 1977, in the mid-afternoon, and he learned of Sirikul's disappearance the following day.
Kesornsook looked at Sirikul's body twice at the funeral home, about three or four minutes the first time and five minutes the second time. The first time he looked at the body he saw only the upper half, but was unable to recognize the partially decomposed face. He identified Sirikul then on the basis of his body build. Kesornsook went back a second time to be sure of the identification, looking for and finding a pencil mark on Sirikul's right arm and a scar on his right forefinger. ...