APPEAL from the Circuit Court of Champaign County; the Hon.
ROBERT J. STEIGMANN, Judge, presiding.
JUSTICE WEBBER DELIVERED THE OPINION OF THE COURT:
Defendant was charged in a five-count information with the offense of murder in violation of section 9-1 of the Criminal Code of 1961. (Ill. Rev. Stat. 1979, ch. 38, par. 9-1.) Four counts alleged felony murder in that he killed Brianna Stickle without lawful justification while committing the forcible felonies of rape, indecent liberties with a child, and aggravated kidnapping (Ill. Rev. Stat. 1979, ch. 38, par. 9-1(a)(3)), and the fifth count alleged that he killed Brianna Stickle without lawful justification by suffocating her knowing that such acts created a strong probability of death or great bodily harm. Ill. Rev. Stat. 1979, ch. 38, par. 9-1(a)(2).
A jury trial was held in the circuit court of Champaign County, and the jury returned a general verdict of guilty of murder. The same jury returned for a separate sentencing proceeding pursuant to section 9-1(d)(1) Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 9-1(d)(1)) to determine the question of imposition of the death penalty. It first found defendant eligible for the death penalty by reason of an aggravating factor, specifically that the victim was killed in the course of other felonies, aggravated kidnapping, indecent liberties with a child and rape. (Ill. Rev. Stat. 1979, ch. 38, par. 9-1(b)(6).) The same jury was then further recalled to consider factors in aggravation and mitigation. (Ill. Rev. Stat. 1979, ch. 38, par. 9-1(c).) Its third, and final, verdict was that it was unable to agree unanimously that the defendant should be sentenced to death. The court therefore sentenced defendant to a term 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).) This appeal followed.
A moderately extended recitation of the facts is necessary in view of our disposition of the issues raised by defendant; first, a recapitulation of the facts developed at trial, and later, more specific evidence as related to the various issues.
On August 8, 1980, the victim was a three-year-old female who lived with her mother and stepfather at 1110 Eastview in Rantoul. At about 6:30 p.m. on that date she was seen sitting in the front yard of the residence and then disappeared. The house next door at 1112 Eastview was occupied by two brothers surnamed Tucker, Maurice and Lutellis, the latter also known as Sonny. A third house which figures in the story was located in the next block at 1056 Eastview and was occupied by Donald Douroux, also known as Don Juan or Juan. Defendant resided elsewhere but was acquainted with the Tuckers and Douroux and kept some clothing at the Tucker house.
Rand Spragg, the stepfather, testified that after observing the victim in the front yard at about 6:30 p.m., he found her missing shortly afterward and instituted a search about the neighborhood. He went to the Tucker house next door and knocked on the front door. No one answered, but he could hear a stereo playing at low volume. He left to pursue his search elsewhere and sometime later observed an individual, later identified as Douroux, arrive at the Tucker house. According to Spragg, Douroux knocked on the front door and having received no answer, went to the rear and knocked on the back door; there was still no answer, whereupon he stepped inside the house for a few seconds and then came back outside.
Spragg then asked Douroux if he might go inside the Tucker house and look for the child. Douroux replied that it was not his house but that he knew the people who lived there, and gave Spragg permission to enter. Spragg and his wife went through the house but found nothing and returned out the front door. Douroux then stated that he would go back into the house and lock up. He entered and shortly returned in a semi-hysterical state, telling Spragg that there was something in the house in the back room. Spragg re-entered and found the child on a bed in a utility room at the rear of the house. She had been covered with bed clothing and was lying on her stomach, naked and bloody about the genital region.
An ambulance was summoned. A police officer, McLemore, who had earlier been involved in the search for the child, heard the call and proceeded to 1112 Eastview where he was admitted by Spragg and Douroux. He testified that while he was in the utility room with Spragg, he heard a voice say, "Officer, come here." He remained in the utility room and the voice then said, "The subject you want is at 1056." While uncertain, he testified that he believed no one else had entered or left the house. Spragg also testified that Douroux told the police on their arrival that there was a man at his house who had just been at 1112.
The child's body was removed by ambulance to a hospital at Chanute Air Force Base. She was pronounced dead on arrival. Medical evidence indicated that the cause of death was asphyxia and that a three-year old would expire in approximately 60 seconds if air were prevented from entering the nose and mouth. Further medical evidence indicated the presence of degenerated spermatozoa in the victim's vagina, which was three times its normal size. The pathologist testified that the sperm had been deposited at about the time of death and that the victim had had intercourse prior to her death.
Police officers had arrived at the Tucker house and one of them, Wiseman, after a conversation with McLemore who was already there, went to 1056 Eastview where he was met by Douroux, who told him that defendant was the one to speak with. Wiseman found defendant inside 1056 and asked him for identification. Defendant appeared nonchalant and stated that he did not know why Wiseman was there. He was wearing red pants, sox and shoes. Wiseman arrested defendant and advised him of his Miranda rights, but did not discuss the case with him. Defendant refused to sign a Miranda form and shook his head in a negative manner when the rights were read to him. Wiseman turned defendant over to another officer, Portis, who was present during the Miranda admonishments.
Portis then had a conversation with defendant. Portis claimed that defendant never indicated that he did not wish to talk. He stated to Portis that he had been at Tuckers' drinking with them during the day. When the Tuckers left for the evening, he left to go to Juan's house at 1056. There, he claimed, he and Juan had wrestled on the lawn, and a fresh scratch on his left side had come from the wrestling. Portis caused defendant to disrobe and observed grass in the groin area. Later defendant stated to Portis that he did not know where the scratch had come from. Portis asked him if he had seen any children while going from Tuckers' to 1056. Defendant stated that he had seen a little white girl and a little white boy and had talked to them, but further stated, "But I didn't rape no little white girl." Portis had not informed defendant at that time of any of the facts of the case, but he knew that Wiseman had informed him of the charges at the time Wiseman arrested him.
Another officer who interviewed defendant the following day, August 9, testified that defendant told him he had been drinking at Tuckers' all day and had gone to Douroux's house about 45 to 60 minutes before the police arrived. He also told the officer that while on the way he told a little white girl to stay out of a garbage can.
Both Tucker brothers testified and corroborated the presence of defendant at their house during the day and his departure about 6 p.m. Both of them asserted that defendant was wearing blue jeans and a shirt at the time he left to go to Douroux's house. Maurice Tucker testified that defendant kept some clothing in his room, which was the utility room at 1112 Eastview, and identified the red pants which defendant was wearing at the time of arrest as belonging to defendant. He also testified that while he was with defendant they saw the victim and that he had talked with her but defendant had not. He further stated that defendant had brought a bag with clothing in it over to Tuckers' house but did not remember whether defendant had ever taken it back.
Douroux gave extensive testimony for the State. He stated that on August 8, 1980, he returned to 1056 Eastview in Rantoul from Champaign at about 6 p.m. As he pulled his car into the drive he saw defendant, who was then wearing red pants, come out from under a trailer which was parked at the rear of 1056. The trailer had some shrubbery alongside it. Defendant stated to him that he had killed a woman who lived next door to Sonny. He believed defendant was drunk and offered to call Sonny's house by telephone to prove there had been no killing. He called but received no answer, so he told defendant that he would drive down to Sonny's to determine that no dead body was there. He then did so and his further testimony paralleled that of Spragg concerning his arrival, the discovery of the body, and the presence of the police. He stated that he was the one who told the officer to come to 1056.
The State presented medical and scientific evidence which established the following:
1. Both defendant and the victim had type O blood; several stains found on the bed clothing tested positively for type O; defendant is a non-secretor, that is, one whose blood type cannot be determined from bodily secretions other than blood; semen stains found in the bed clothing were determined to have come from a non-secretor; non-secretors encompass about 20% of the population.
2. Hairs found on the body of the victim were those of negroid characteristics; they were compared with samples taken from defendant and several of the ...