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People v. Bush





APPEAL from the Circuit Court of St. Clair County; the Hon. JOHN J. HOBAN, Judge, presiding.


Rehearing denied January 5, 1982.

Defendant, Gregory Bush, was convicted of the murders of Zelma Durbin and her son, Craig Durbin, following a jury trial in the Circuit Court of St. Clair County. The jury did not return a sentence imposing the death penalty, and the court sentenced defendant to consecutive terms of natural life imprisonment pursuant to section 5-8-1(a)(1) of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005-8-1(a)(1)), finding that the murders were accompanied by "exceptionally brutal or heinous behavior indicative of wanton cruelty."

The following issues are raised on appeal: whether the trial court erred in informing prospective jurors that the State would be seeking the death penalty and asking them how this would affect their deliberations; whether defendant was denied a fair trial by the admission of expert testimony regarding blood type; whether the trial court erred in admitting certain rebuttal testimony regarding defendant's prior use of knives; whether the trial court erred in allowing the prosecutor, in his closing argument, to conduct a physical demonstration re-creating the crime scene wherein he attempted to show that defendant could not have moved one of the victims' bodies in the manner testified to; whether the consecutive life sentences were excessive; whether the natural life sentencing provision is unconstitutional; and whether the evidence was sufficient to sustain the conviction.

On May 30, 1979, at approximately 7 a.m., the Cahokia Police Department received a call from Ethyl Beardsley, Ms. Durbin's sister-in-law. Ms. Beardsley would usually baby-sit for Craig after Ms. Durbin dropped him off at 6. Ms. Durbin was late this morning. Ms. Beardsley had called the Durbin residence several times and received no answer at first and then a busy signal. She then proceeded to the Durbin residence but found the house locked. At this time she went to a nearby residence and called the police.

Community Service Aid Jeffrey Goodrich was the first to arrive and Cahokia Police Sergeant Robert Staten arrived shortly thereafter. Officer Staten broke into the house and found the victims' bodies, Ms. Durbin in the kitchen and Craig in one of the bedrooms. The officer then began searching the premises. During Goodrich's investigation the defendant, who lived next door to the Durbins, called out through his window and asked if the Durbins had been "ripped off." Detective Henry Evans was the next officer to arrive at the scene. When defendant spoke to Detective Evans through his window, Evans asked defendant to come outside. Defendant came out wearing blue jeans, shoes and glasses. Detective Evans noticed a red substance on defendant's stomach and the underside of his arms which appeared to be blood. Defendant stated that the blood came from a fight he had with his girl friend, Annette Noe. Evans went to talk with Ms. Noe and upon returning placed defendant under arrest, read him his Miranda rights, and had defendant sign a waiver of those rights. Defendant testified that the statement concerning the fight with his girl friend was false.

Crime technician Alva Busch obtained samples of blood from defendant's hands, arms and stomach, took photographs of defendant and collected his clothes and glasses. The glasses were taken since they were also bespeckled with blood.

Throughout this period, defendant repeated the phrase, "I didn't rip them off." Defendant testified that he in fact stated that, "I didn't take anything out of the house."

Alva Busch and Henry Edens, crime technicians, processed the scene. The following items were found in the kitchen area of the Durbin residence. Two telephones were found with the cords cut and smeared with a red substance, later determined to be blood. Hair, without roots, in considerable amounts was found on the floor near Ms. Durbin's body. Two rugs in the kitchen were soaked with blood. A large wood fragment was found on the floor with other wood fragments a few feet away. The larger items in the kitchen, the appliances, a wooden stool and the counter all had varying amounts of blood on them. The contents of a woman's purse were on the counter. Ms. Durbin was found wearing a bra, a blouse, an earring in her left ear and three quarter length hosiery. Busch and Edens then proceeded to the bedroom where Craig's body was found. Craig was found lying on the bed wearing a T-shirt. Underpants were on the floor to the left of the bed. The area of the bed surrounding his body was soaked with blood as was the wall above the bed. A knife with a serrated blade was found in the room. There was no handle on the knife and the blade was covered with blood.

Blood samples were taken from the crime scene with samples of the two victims, and the defendant taken for purposes of comparison.

Defendant was taken into custody at the Cahokia police station where he was interrogated by Detective Sergeant Robert Baldwin and Detective Charles Sharp. Defendant stated that earlier that evening he had been with his girl friend, Annette Noe, and had taken her home at approximately 3 a.m. Then he returned to his house with a friend, Donna Darnell, and stayed there until approximately 6:45 a.m., at which time he took her home. Defendant stated that after he took Ms. Darnell home that he became involved in an incident with some black people at which time he engaged in a fight and cut his hand on some glass on the ground. During the interrogation, the officers took the defendant to have his hand treated by a physician. Defendant then stated that he had not cut his hand on glass but rather his hand had been cut by a knife when the black man attacked him. Defendant stated that he threw up his hands while preparing to do a karate kick and that the black man cut him. Defendant further stated that he dragged the black man, by his hair, down by the river and threw him in. Defendant then took the officers to the location of the alleged incident. The officers found no tire tracks or other indication that such an incident took place. At this point defendant stated that "[i]t didn't happen the way I told you."

Defendant then stated that he arrived home at approximately 6:30 a.m., went into his bedroom, opened a window and lay down. A few minutes later defendant observed Ms. Durbin getting into her station wagon. He went outside for the purpose of talking to her. When he got outside he observed her walking around the front of her house. Defendant followed, lost sight of her for a short time, and eventually went around to the front of the house. Defendant opened the door and found Ms. Durbin lying face down with blood surrounding her. Defendant stated that he turned her over, noting "that she was butchered like a hog."

The officers then proceeded to defendant's house after obtaining a consent to search form which defendant signed. When they reached the house they entered defendant's bedroom and defendant retrieved prescription bottles, with Ms. Durbin's name on them, from under his bed. Officer Baldwin reached under the bed and pulled out a blood-stained jacket. Also found was a gold medallion and chain, later identified to be Ms. Durbin's. At this point defendant admitted taking the prescription bottles and the medallion and chain from Ms. Durbin's house. A pair of cut-off blue jeans with wood fragments in the rear pocket was also recovered from defendant's bedroom.

Crime technician Edens conducted a search of defendant's back yard while the search of defendant's bedroom was taking place. Edens found a green wastecan outside defendant's window which contained a white washrag covered with blood. Also found was a butcher knife which was underneath a board directly below the wastecan.

At trial, defendant testified that he was with Ms. Noe until approximately 1:30 a.m. and with Ms. Darnell until approximately 5:45 a.m. He stated that when he returned home he saw Ms. Durbin in her driveway and spoke with her. Defendant testified that he then went into his house and "dozed off." A short time later defendant heard a noise but thought it was coming from his stereo. He looked out his bedroom window and saw Ms. Durbin's car still in the driveway. Thinking this to be unusual, he put on a pair of cut-off jeans and a jacket and walked toward the Durbin residence. He heard another noise and began running toward the fence which separated his back yard from the Durbins'. Defendant further testified that while jumping over the fence, a piece of clothing became entangled and he fell. Defendant believed it was at this point that he cut his hand. Defendant got up and proceeded to the back door of the Durbins. Finding it ajar, he pushed it open and entered the kitchen. There he found Ms. Durbin's body lying face down. He turned her over, although he found it difficult because the blood surrounding the body made the floor quite slippery. Defendant testified that he was "shaky" and "freaked out" by what he saw. Defendant then took two prescription bottles from the kitchen table and heard a "thump and slide," became frightened, ran out of the door, jumped over the fence and returned home. Defendant placed the two pill bottles and a medallion, which he did not recall taking, under his bed. Defendant also testified that he considered calling the police but realized that he had taken items from the Durbin residence. Shortly thereafter defendant fell asleep.

Defendant stated that the police made a number of errors in the police report in recording what he had told them after abandoning his story concerning the alleged incident with the black men. Basically, defendant refuted the testimony of the interrogating officers as to what he told them at the time. Defendant's testimony at trial, as stated above, renders a different account of the occurrence in question.

Forensic scientist Jackie Fracaro identified People's exhibits Nos. 1, 2 and 3 as matching the inked footprint of defendant's left foot. The exhibits were latent footprints lifted from the area surrounding Ms. Durbin's body taken by crime technician Alva Busch on May 30, 1979. Mr. Fracaro was able to make a positive identification that the latent prints taken at the crime scene matched the inked print of the defendant.

Forensic scientists Retha Mathews and Mark Stolorow gave testimony concerning the blood samples taken from the Durbin residence, defendant's residence, and the green wastecan. A chemical test was used to determine if the samples were blood and an immunological test was employed to determine if it was human blood and, if so, of what type. The blood samples were typed according to the ABO grouping system and, in some instances, the esterase D (EsD) system was used. These tests are used to determine whether the blood type is consistent ...

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