Appeal from the Appellate Court, for the First District; heard
in that court on appeal from the Circuit Court of Cook County,
the Hon. James M. Bailey, Judge, presiding.
JUSTICE UNDERWOOD DELIVERED THE OPINION OF THE COURT:
Rehearing denied April 16, 1982.
Defendant, Pamela Pastorino, and her 14-year-old sister, Debbie Saylor, were charged with the November 19, 1977, murder of their stepfather, Leonard Warchol. Prior to defendant's trial, Debbie had been adjudicated a delinquent based upon the same conduct and, at the time of trial, was in the custody of juvenile authorities. A Cook County jury found defendant guilty of murder and aggravated battery and not guilty of voluntary manslaughter; she was sentenced to imprisonment for not less than 20 nor more than 60 years. The appellate court reversed because of improper jury instructions and remanded for a new trial. (90 Ill. App.3d 921.) We granted the State's petition for leave to appeal.
The medical examiner testified that Leonard Warchol had received 6 stab wounds and about 20 head wounds caused by a blunt object. Death resulted from "[s]tab wounds of the chest with involvement of the lungs in association with cranial injury." His body was found by investigating officers in the bathtub, although physical evidence and testimony indicates that he was killed in the living room of his home. Two pieces of pipe were recovered at the scene; one bore traces of blood and hair which matched samples taken from the victim. The medical examiner testified that the head injuries were consistent with being caused by this pipe. A butcher knife was recovered several weeks later from the kitchen of Warchol's home after Debbie Saylor identified it to police as the murder weapon. Neither the knife nor the pipe bore fingerprints. The knife was clean when recovered; testimony suggests that it is normally difficult to get fingerprints from substances with the texture of the pipe.
The State called defendant's brother, Earl "Danny" Saylor, who agreed to testify only after he was granted immunity. He informed the court, before his testimony, that he would, in part, contradict a previously given unsworn statement. When he did so during his testimony, the trial judge made him a court's witness. He then testified that he talked to the defendant and Debbie a few hours after the murder at defendant's home. Debbie was living with defendant at this time. During that conversation Debbie told him that the killing followed an argument over pizza between Debbie and her stepfather. She told her brother that she was tired of fighting over "little stuff"; that she had stabbed him; that defendant hit him with a pipe; and that they both had worn gloves. Defendant was present when Debbie told this story to her brother, but said nothing. The State attempted to impeach this testimony with Saylor's prior statement in which he said that defendant had said that she hit her stepfather with the pipe and had worn gloves. On cross-examination by defendant Saylor said that he was under the influence of marijuana and alcohol when he made those statements to police and when he talked to his sisters on November 19. The State later called the assistant State's Attorney who had taken Danny Saylor's statement. He testified that Saylor was coherent and his answers were "responsive" when he gave that statement.
Debbie Saylor was called as a witness for the State. She was represented by counsel who informed the court that Debbie would refuse to testify. Debbie was sworn, with the jury not present, and she invoked her fifth amendment privilege. The State granted immunity but she still refused to testify. The court admonished her that she would be sentenced for contempt if she did not purge herself before the end of the trial and ordered that she be brought to court each day.
Danny Minigh, a friend of Danny Saylor, as well as defendant and Debbie, testified that some months before the murder defendant had asked him if he knew anyone who would want to make $500 for "bumping Lennie off." Minigh said he told her she was "crazy" and the matter was dropped. He said that he had also spoken with defendant and her sister at defendant's home, after the murder but apparently before Danny Saylor arrived. Defendant told him that "Lennie had jumped into Debbie about making a pizza and that she [defendant] had struck him with a pipe and that Debbie had stabbed him, and that she was trying to stop Debbie from stabbing him, and Debbie stabbed her in the finger with the knife." Defendant also told him that they had disposed of the pipe and the "gloves and stuff." Minigh testified that when, at the wake of Leonard Warchol, he asked defendant where she hit him, she replied, "In the head." On cross-examination, Minigh testified that he was on probation from a robbery conviction and had other charges pending against him. He had been "seeing" defendant some time before the murder. He also said that he had learned that defendant's mother [Leonard Warchol's wife] had been treated in the hospital, on November 19, for injuries.
The following day, after Minigh's testimony, Debbie Saylor was brought before the court and she again refused to testify. At this time the State asked that this refusal be made before the jury. The court allowed the motion over objection, and she was sworn. She admitted to being defendant's sister but refused to testify further. Later that afternoon the State rested, and defendant rested without presenting evidence. Closing arguments were set for the following morning.
Before the arguments Debbie Saylor told the court that she would testify. Both the State and the defendant objected. The thrust of the State's objection was that it was satisfied with its case and it could not vouch for Debbie's testimony. Furthermore the State seemed to view Debbie's late compliance with the court's order as a ploy to avoid contempt proceedings. The court, however, noting that she was an occurrence witness, reopened the case and, "for the sake of justice," called her as a court's witness. The court stated that both the State and the defendant could cross-examine her and that both sides could present further evidence after her testimony.
Debbie then testified that she stabbed Leonard Warchol as he sat watching TV. She said she thought the defendant was "downstairs" at the time. She said that she did not know if defendant hit him, that she was not wearing gloves, and that she had not told Danny Saylor or Minigh anything that night. The State attempted to impeach with a signed statement she had given to police by reading several questions and answers from it. She admitted to making the statement. In it she had said that she had told both Minigh and her brother about the murder, that when she and defendant arrived at Warchol's home they first went to the basement and when they came up she got a knife from the kitchen and began stabbing him; and that defendant then hit him with the pipe. During cross-examination by defendant, Debbie said that when she went to the basement she hit her mother, knocking her to the floor. She also said she did not remember that either she or her sister hit Leonard Warchol with a pipe.
Defendant then testified in her own behalf. She said that she was downstairs talking to her mother when she heard a loud argument between Debbie and her stepfather upstairs. Debbie then came downstairs and hit her mother, crying that she would "kill Lennie." She said that after checking on her mother, who was unconscious, she followed her sister upstairs. She saw Debbie stabbing Leonard and attempted to stop her, being stabbed in her finger while doing so. She said she did not hit him with a pipe nor did she see her sister do so. On cross-examination she denied wearing gloves, denied hitting Warchol, denied soliciting Minigh for his murder, and denied admitting to Minigh or her brother that she had hit him.
Defendant alleges that the trial court erred in instructing the jury to consider the murder verdict before the manslaughter verdict and in declining to instruct the jury on voluntary manslaughter resulting from an unreasonable belief that the use of force was justified; that the trial court overstepped the bounds of neutrality by calling two court's witnesses, by reopening the trial after both sides had rested, and by putting Debbie Saylor in front of the jury when the court knew she would refuse to testify; and that the State imparted substantive character to the prior inconsistent statements of Danny and Debbie Saylor.
During the instruction conference, defense counsel requested that the jury be told it could not return a guilty verdict on both murder and voluntary manslaughter. The court read standard Illinois Pattern Jury Instructions to the jury, including those on accountability, aggravated battery, voluntary manslaughter by acting under intense passion from serious provocation, and murder. After giving these instructions the court made some additional comments, including:
"I will go back and explain this to you in a very slow manner so you won't get confused. Since you have the initial charge, which is a charge of murder, there are also two other crimes that we call lesser and included offenses of them. One is aggravated battery. So, you have two possible verdicts on aggravated battery. In other words, she did commit the aggravated battery or did not commit the aggravated battery. So, you will come back with one verdict as far as the aggravated battery is concerned. In other words, on the aggravated battery ...