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People v. Buss

OPINION FILED FEBRUARY 9, 1983.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

TIMOTHY D. BUSS, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Kankakee County; the Hon. Robert L. Dannehl, Judge, presiding.

PRESIDING JUSTICE BARRY DELIVERED THE OPINION OF THE COURT:

Timothy Buss, age 13 at the time of the instant offense, was arrested on May 28, 1981, in connection with the murder of five-year-old Tara Sue Huffman. Following a hearing conducted pursuant to section 2-7(3) of the Juvenile Court Act (Ill. Rev. Stat. 1979, ch. 37, par. 702-7(3)), defendant's case was transferred from the juvenile division to the court's adult division, and he was formally indicted by a grand jury in Kankakee County in three counts for the child's murder. Because of pretrial publicity, the jury trial was held in Will County. Defendant was found guilty, convicted, and sentenced to a 25-year term of imprisonment.

On appeal, defendant raises five issues for our consideration: (1) whether the State's evidence was sufficient to prove the defendant guilty beyond a reasonable doubt; (2) whether the defendant was denied a fair trial by the trial court's denial of defendant's motion in limine to preclude the State's use of his pre-arrest statement; (3) whether defendant was denied a fair trial by the prosecution's suppression of certain witness interview notes taken by assistant state's attorneys; (4) whether the trial court erred in denying defendant's motion for mistrial based on prosecutorial and judicial misconduct; and (5) whether the trial court erred in denying defendant's motion for a directed verdict.

Because the defendant's conviction was obtained on the basis of entirely circumstantial evidence, we proceed with great caution in deciding defendant's first issue. Several witnesses were called by the State to testify about events of May 21, 1981, in a certain neighborhood on the east side of Bradley, Illinois. Around 9:30 a.m., Tara Sue Huffman, along with a chaperone and other kindergarteners who had perfect attendance records, rode a bus to a roller skating rink. The children skated until around 11:30, when they stopped to eat. Tara had a hot dog and Pepsi. They all left the rink together and returned to the kindergarten classroom at Bradley East around noon.

At 12:15 p.m., Tara was picked up by her sister and her mother. The three of them stopped at some neighborhood garage sales and returned to the Huffman home around 1:30. Tara changed into a pair of shorts and top, told her mother she was going to play with the Smith children, and headed down the alley, barefooted, in the direction of the Allen Smith residence.

Tara's brother, Richard Huffman, came home around 2:30 p.m. with a little turtle that he wanted to give to Tara. Mrs. Huffman phoned the Smith's and asked for Tara. She was told that Tara hadn't been there for some time. Not satisfied by this response, Mrs. Huffman went over to the house. Homer Smith, Allen's son, told Mrs. Huffman that he hadn't seen Tara for a while, but he had not seen her leave the yard.

At that point Mrs. Huffman began searching at the homes of other neighbors. No one was able to provide any information on the little girl's whereabouts. At 5 p.m., Mrs. Huffman called the police and then continued her search of the neighborhood, aided by several neighbors and her children, Richard and Sondra.

At 7:15 p.m., Tara's body was found by defendant Timothy Buss in the pit of a landfill located approximately 2 1/2 blocks south of the Allen Smith residence. The defendant lifted the dead body out of the pit and called Allen Coffman, another searcher in the area, to come help him carry her. Tara was nude except for her shirt, which was pulled up under her armpits. Her face was covered with blood, and a stick protruded from her anus.

Upon seeing the body Coffman felt sick, declined the defendant's suggestion to assist in moving the body, and told the defendant to stay there to keep other youngsters from seeing Tara's body while he went after the police.

Coffman found Lieutenant Greenstreet of the Bradley Police Department and led him to Tara's body. The scene was secured, and the defendant and Coffman were taken to the police station for their statements regarding the discovery of Tara's body.

The defendant, who was wearing a white T-shirt, blue jeans and sneakers, was joined by his father, David Buss, at the police station. Around 10 p.m., juvenile officer Catherine Bergen, pursuant to routine procedures, explained to defendant and his father the Miranda warnings and had defendant initial on a preprinted form as to his understanding of each segment and sign the form. The execution of the form was witnessed by Bergen and David Buss.

The defendant thereafter described his discovery of Tara's body and his own activities of the day leading up to that event. The defendant stated that he had not been in school on May 21, 1981, because his class had gone on a field trip and he had elected not to go because of the cost of the trip and the fact that he had planned to take a trip with his grandfather to Texas. In the morning he had gone across the street from his aunt's home where he was staying to the garage next to Allen Smith's house to help Jerry Beattie wash his car. When they finished washing and waxing it, the defendant went back home where his cousin fixed hamburgers for lunch. The defendant watched television for a while, and at 2:30 p.m., he went to see his friend Gary Clough at his home. At 3 p.m., the defendant returned home, and 10 minutes later his grandmother, Alice Buss, picked up the defendant and his brother and sister and drove them to her home in the trailer park. There, the defendant played softball.

Defendant further stated that at 6:30 p.m., Mrs. Buss drove him back to his aunt's place. After depositing the baseball glove and bat in the house, the defendant went back across the street to the Allen Smith house. Smith told the defendant that Tara Huffman was missing. Homer Smith remarked that Tara liked to swim, so they got into a truck and drove down near to the creek. The defendant then proceeded on foot along the creek to a cavity in the ground. There he observed an arm sticking out from under some pieces of foam rubber. He pulled the foam rubber away and saw Tara's face with blood coming from her nose.

Defendant said that he felt the little girl's throat and noted that her arms were stiff and her eyes were partially opened. Then he yelled to Coffman (whom the defendant had not known at the time), "I found her." Coffman asked if she was all right. The defendant said she was dead and then lifted the girl's body out of the hole, set her down, and lifted her one more time to move her farther from the hole. Coffman came over and saw the body. The defendant asked Coffman if he could borrow his bike to get help. Coffman said no, he'd go himself. He left and then the defendant told a woman that he'd found the body and told her to keep the children away ...


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