Appeal from the Circuit Court of Cook County; the Hon. Dwight
McKay, Judge, presiding.
JUSTICE CAMPBELL DELIVERED THE OPINION OF THE COURT:
Defendant Willie Rainge was convicted of the murders and aggravated kidnapings of Lawrence Lionberg and Carol Schmal and the rape of Ms. Schmal and was sentenced to concurrent terms of natural life imprisonment for each of the murders, 60 years for each of the aggravated kidnapings and 60 years for rape. Defendant Kenneth Adams was convicted of the murders of Lionberg and Schmal and the rape of Ms. Schmal and was sentenced to concurrent terms of 75 years for each of the murders and 60 years for rape.
On appeal, we are presented with seventeen issues which are raised by one of the defendants alone or by both defendants. Defendant Rainge alone raises the following issues: (1) whether the evidence established his guilt beyond a reasonable doubt; (2) whether he was denied his right to effective assistance of counsel; (3) whether he was denied his right to a public trial by the trial court's exclusion of the press and general public from the courtroom during the testimony of a rebuttal witness for the State; (4) whether he was denied his right to a fair trial by the State's failure to inform defense counsel of the existence of a rebuttal witness until shortly before the witness was called to testify; (5) whether he was denied effective assistance of counsel at the sentencing hearing through counsel's failure to advise Paula Gray, a co-defendant, to invoke her fifth amendment rights and thereby preclude the State from using her out-of-court statements as evidence in aggravation against him; (6) whether the statute authorizing a sentence of natural life imprisonment violates article I, section 11, of the Illinois Constitution of 1970; (7) whether the trial court erred in its reliance upon the hearsay statement of Paula Gray, a co-defendant, in determining his sentence; and (8) whether the sentences imposed for the aggravated kidnapings exceed the maximum authorized term.
Defendant Adams alone raises the following issues: (9) whether the evidence was sufficient to establish his guilt beyond a reasonable doubt; (10) whether the trial court erred in its instruction of the jury on circumstantial evidence; and (11) whether the sentences imposed upon him violate the constitutionally mandated objective of restoration to useful citizenship.
Both defendants Rainge and Adams raise the following issues: (12) whether they were denied their right to a fair trial when they were tried simultaneously before two juries with Paul Gray, a co-defendant accused of the same crimes as defendant herein; (13) whether the admission of hearsay testimony concerning hair sample comparisons by an expert witness, coupled with the State's comments on this testimony during closing argument, was "plain error" which denied defendants a fair determination of their guilt or innocence; (14) whether the trial court erred in its failure to conduct a full hearing concerning the existence of a prior written statement allegedly made by a witness for the State; (15) whether the trial court erred in permitting the jury to view the crime scene and in instructing the jury to consider the view as evidence; (16) whether they were denied their right to a fair trial by the State's closing argument; and (17) whether the trial court erred in sentencing defendants to extended terms where neither defendant had previously been convicted of a felony.
The record discloses that on May 11, 1978, Carol Schmal was visiting her boyfriend, Lawrence Lionberg, at a gas station in Homewood, Illinois, where Lionberg was employed. At approximately 2:15 a.m., two friends of Lionberg and Schmal left the gas station after visiting with them for about 30 minutes. The manager of the station testified that he arrived at the station at approximately 6:30 a.m., and found it unattended and in a state of disarray. At about 8 a.m., Investigator Patrick Pastirik of the Cook County Sheriff's Police arrived at the scene in response to the manager's call. At the time he arrived, a uniformed officer was present. Pastirik stated that he and other investigators who also had arrived searched the station and the surrounding area and did not find anything. Subsequently, Pastirik searched an automobile which was parked in front of the station and discovered a purse on the front seat. Upon examination of the purse contents, Pastirik found a driver's license issued to Carol Schmal. Pastirik went to the Schmal residence and spoke with Ms. Schmal's father who told Pastirik that he had last seen his daughter the previous evening with Lionberg. For the remainder of the day, Pastirik and his partner spoke with friends and relatives of the couple in an attempt to ascertain information about what might have happened to them.
Charles McCraney, a jazz guitarist, testified that in the early morning hours of May 11, 1978, he was composing music and playing his guitar in the downstairs living room of his townhouse at 1533 Hammond Lane. McCraney stated that the back of the townhouse faced Hammond Lane and that the front of his home overlooked a courtyard between his building and the buildings on Cannon Lane. McCraney stated that he periodically would go upstairs and look out the back window to observe his automobile because he was afraid that the car might be vandalized or stolen. McCraney testified that there were no lights on in the upstairs floor of his home and he could see into the area of Hammond Lane because the area near the building was lit and there was a street light.
At approximately 3 a.m., as McCraney was checking his automobile, he saw a red Toyota which had rear-end damage and black racing stripes and which was driven by Dennis Williams pull up and back into a position next to defendant Kenneth Adams' beige Toyota. Adams' vehicle and a blue Chevrolet were parked in front of the Gray residence which was four doors west from McCraney's home. McCraney stated that he had seen the two Toyotas in the area during the day and night for the two weeks that he had resided on Hammond Lane. Approximately 10 to 15 minutes later, McCraney went upstairs to check on his automobile and observed a yellow Vega which was operated by defendant Willie Rainge "[come] in like a low-flying jet" and pull up to the side of the red Toyota. McCraney stated that he also had seen the yellow Vega in the area during the prior two weeks. After a few minutes McCraney observed the red Toyota pull away from the parking space and stop under a streetlight on Hammond Lane. McCraney stated that Williams got out and broke the light with a rock. He stated that Williams then drove the car into a parking space which was next to Rainge's Vega. He testified that he saw Rainge leave his automobile and enter the red Toyota which was then driven away east on Hammond Lane.
McCraney stated that he went to check his automobile and observed Paula Gray and another sitting in the blue Chevrolet which was parked in front of the Gray residence. Upon returning to his townhouse, McCraney heard the sound of a car which was stuck in the mud on Cannon Lane. McCraney went upstairs and saw Williams' red Toyota stuck in the mud in the gangway next to the building at 1528 Cannon Lane. McCraney testified that he then went to the window that overlooked Hammond Lane and saw the driver and three persons, one of whom he identified as defendant Adams, exit the beige Toyota and run through a gangway and an abandoned townhouse to Cannon Lane. McCraney then relocated so that he could view the buildings on Cannon Lane and the courtyard and saw the group which had run from Hammond Lane to Cannon Lane join the group which had exited the red Toyota which since had been freed from the mud. He stated that this group of six to eight people entered the building at 1528 Cannon Lane from the courtyard entrance. McCraney testified that he recognized defendants Rainge, Adams and Williams as three of those who entered the building. McCraney stated that he did not see any members of this group during the remainder of the early morning hours. Approximately an hour and a half later, McCraney heard a gunshot from the direction of 1528 Cannon Lane. McCraney stated that the shot had been fired indoors because of the echo. He testified that he took no action after he heard the shot because it was commonplace to hear guns being fired in the area.
On cross-examination, McCraney stated that he did not see any white persons or females among the group that entered the building at 1528 Cannon Lane. McCraney testified that the only person that he would positively identify as one of the persons who entered the building at 1528 Cannon Lane was Dennis Williams. He also stated that the last time he positively could state that he saw defendant Adams was when he saw Adams exit the car and run toward the building.
Later that morning, McCraney stated that while he was talking to the janitor outside his building, he saw Williams drive up in the red Toyota, stop under the light that Williams had broken earlier and kick the glass from the street. He stated that Williams then parked his car in front of the Gray residence.
On the morning of May 12, 1978, McCraney stated that he was speaking with the janitor of the building when a neighborhood woman screamed at the janitor that their children had found a dead man. McCraney followed the woman and saw a man lying face down. He stated that the janitor called the police.
On the morning of May 12, 1978, Lieutenant Howard Vanick of the Cook County sheriff's police left his office in response to a call that a body had been found in a field near a creek in the 1500 block of Cannon Lane in East Chicago Heights. Upon arriving at the scene, Vanick approached the area where people had gathered and discovered the body of Lawrence Lionberg. A search of the area was conducted and, at approximately 12 p.m., the body of Carol Schmal was discovered in a vacant second floor apartment at 1528 Cannon Lane. Ms. Schmal's body was naked from the waist down. Dr. Stein, the chief medical examiner of Cook County, testified that he performed autopsies on the bodies the following day and determined that Lionberg died of two bullet wounds to the head and also a bullet wound to the back which had penetrated the heart. Stein testified that Ms. Schmal died from two bullet wounds to the head. He stated that, from the appearance of the bullet entry wounds on Ms. Schmal, the gun which had fired the bullets had been six to 12 inches from her head.
Charles McCraney, who was one of the onlookers near the field, overheard Dennis Williams talking to his friends prior to the discovery of Ms. Schmal's body. McCraney testified that he heard Williams ask his friend if he shot those people. He also stated that Williams said that he saw them jump when he shot them. Shortly after McCraney heard this conversation, he testified that the body of Carol Schmal was found at 1528 Cannon Lane. McCraney testified that he "put two and two together" and telephoned the Cook County Sheriff's Police from a nearby gas station. McCraney stated that he told the dispatcher that the persons who had committed the crimes were at the scene and provided descriptions of the vehicles involved: a beige Toyota, a red Toyota and a yellow Vega. McCraney did not disclose his name at this time. McCraney returned and did not see the police acting on his information. McCraney made a second telephone call to the sheriff's police and reiterated the information which he previously had given and he also gave the license number for the beige Toyota.
At approximately 1 p.m., Investigator Pastirik who earlier had arrived on the scene received a radio message concerning the information contained in McCraney's anonymous telephone calls. Pastirik stated that he and a few other officers walked toward the crowd and were looking for a Toyota and its occupants. As he approached the group, he stated that he observed two black males walking briskly around a building on Cannon Lane. As the officers approached, one of the men, Verneal Jimmerson, saw that they were being followed and broke into a slow trot. Dennis Williams, the other man with Jimmerson, had keys in his hand and was beginning to open the car when Pastirik identified himself. After a conversation with Williams, Pastirik arranged to have the vehicle towed to the Homewood branch of the Cook County Sheriff's Police. Williams and Jimmerson were transported to the station where they were interviewed. At about 6 or 7 p.m., defendant Kenneth Adams drove his beige Toyota to the station after he had spoken with a police officer. At about 8 p.m., defendant Willie Rainge arrived at the station. After being interviewed, defendants Adams and Rainge were permitted to leave, although Adams' vehicle was kept at the station.
The following morning, Charles McCraney spoke with Pastirik and his partner at the Homewood branch of the sheriff's police. McCraney was taken to the area where Williams' red Toyota and Adams' beige Toyota were parked. Upon seeing the vehicles, McCraney stated: "You got two of the cars. You got them."
On May 14, two persons from the evidence technicians section of the sheriff's police examined Williams' Toyota. Hair fibers were removed from the trunk of the vehicle and trace material was recovered from the passenger and rear seat areas. Michael Podlecki, a forensic scientist, testified that he examined the material recovered from the red Toyota and compared it with hair taken from the bodies of Lionberg and Schmal. Podlecki stated that under a 500-power magnification, he was not able to find any dissimilarities between the hair taken from the body of Carol Schmal and the hair recovered in the trunk of the vehicle and with a hair found on the rear floor of the car.
Podlecki stated that he also analyzed a smear slide of the vaginal area of Carol Schmal. He stated that the slide revealed "intact" sperm cells. He stated that sperm cells will remain "intact" and then begin to degenerate after 24 to 36 hours. He stated that the examination of a vaginal swab and material recovered from Ms. Schmal's pants revealed the presence of seminal fluid. He testified that analysis revealed the presence of blood types O and A in the substance. Podlecki stated that this result can be due to a combination of type A and type O seminal substances, a combination of group A seminal fluid and group O from the victim's vaginal secretions or seminal material from an individual with blood type A with a slight H blood factor.
Upon analysis of the defendants' blood and saliva samples, Podlecki stated that Dennis Williams had type A blood, defendant Rainge had type O blood and defendant Adams had type A blood with a slight H blood factor. Podlecki stated that the reason that he could determine blood types from the seminal fluid was that all three of these men were "secretors" which meant that the antigens which are responsible for determination of blood type are secreted in the bodily fluids.
The jury also heard testimony from David Jackson who was in a Cook County jail intake cell with defendants. Jackson stated that he heard Williams say that he had intercourse the night before and that Rainge responded, "Yeah, me too, you know," and that they should not have taken it from the lady. Jackson stated that Williams said that they were glad that they took care of the guy and "popped him in the head" because he just kept "running off at the mouth." Williams told Rainge that they "didn't have to worry about nothing because they would never find the pistol." According to Jackson, Williams also told Rainge that "he would have someone take care of the woman who saw them in the car and told the police about it." Jackson stated that defendant Adams was not a party to the conversation between defendant Rainge and Williams.
Defendant Willie Rainge testified that on the evening of May 10, he was at home with his girlfriend. He stated that at approximately 3 or 4 a.m., on May 11, he took his girlfriend to her home and then returned to his home. The testimony of Rainge's girlfriend substantially duplicated this testimony. He stated that at the time he arrived home, it was nearly time to go to work so he lay across the bed in his clothes until his sister woke him. Rainge testified that on May 11, he worked from 9 a.m. until 7 p.m. and that after work he did not know what he had done although he stated that he travelled the neighborhood back and forth between the houses of two girlfriends. Rainge stated on the following day he had worked and after work he was with his girlfriend when the police arrived. He testified that he was taken to the police station, questioned and released. Rainge stated that on May 13, the police requested that he drive his yellow Vega to the police station. Later that evening, Rainge was placed under arrest.
According to Rainge, he did not own a weapon. He stated that he has never seen Lawrence Lionberg or Carol Schmal, that he never has been in the area where the bodies were found and that he was not at 1528 Cannon Lane. Rainge told the jury that in the early morning hours of May 11, he did not see Williams, defendant Adams or Paula Gray. Rainge also denied having seen David Jackson in the intake cell and also denied the conversation with Williams at the jail.
In rebuttal to Rainge's testimony, the State offered the testimony of an 11-year-old boy who was one of the children who discovered Lionberg's body on May 12. After being qualified, this witness stated that in the late afternoon of May 11, he was playing with two others near the area of 1528 Cannon Lane. He stated that he saw defendant Rainge running from a building in the area of 1528 Cannon Lane. The witness testified that he saw Rainge stop at a fire hydrant, turn around and then run up a hill toward the creek. He stated that he had an opportunity to observe Rainge's face and subsequently identified Rainge from photographs shown to him by the police. The boy also identified defendant Rainge in court.
Dennis Williams who was also tried with defendants Rainge and Adams testified that he saw defendant Rainge three or four times during the day of May 11 at the Williams' home. Williams denied that he saw David Jackson in the Cook County Jail intake cell and also denied that the conversation recounted by Jackson occurred. Williams stated that on the evening of May 10, he had driven Verneal Jimmerson to the Jimmerson residence on the north side of Chicago. He stated that he arrived in East Chicago Heights at approximately 12:40 a.m. on May 11 and went to the Gray home at 1525 Hammond Lane. He testified that he parked his car next to the vehicle in which defendant Adams and Paula Gray were sitting. Williams stated that the street light across from Charles McCraney's home was out, although this testimony contradicted Williams' statement at an earlier hearing. According to Williams, he spent a short time talking to Adams and Gray and proceeded to his home at 12:45 a.m. Williams testified that he arrived home at about 1 a.m. and went to bed approximately one-half hour later.
Dennis Williams stated that he arose at about 9 a.m. on the morning of May 11 and then went to Hammond Lane where he met others who were cleaning and washing their cars. He testified that he was a friend of the Gray family and that he was at the Gray home every day. He also stated that defendant Adams also saw the Gray family, although Adams primarily associated with Paul Gray.
Williams stated that on May 12, he was with defendant Adams and Verneal Jimmerson at the scene of the homicide investigation. He recalled that Jimmerson had gone to Williams' Toyota to get a pair of sunglasses and was arrested by the police. When Williams arrived at the car, he said that the police also arrested him. Williams stated that when he was questioned by the police, he denied having any knowledge of the homicides. Williams claimed that he was not familiar with the area near the service station where Lionberg had worked. He also stated that he had never been in the building located at 1528 Cannon Lane.
The mother of defendant Kenneth Adams testified that on May 10, 1978, she lived with 11 of her 14 children in East Chicago Heights. She said that she went to bed at approximately 11:30 p.m. and woke at about 3:30 a.m. on May 11. She stated that defendant Adams was asleep in front of the television and that his Toyota was parked in front of the house. She stated that Adams had come home while she had been sleeping. According to Adams' mother, she then went back to sleep. She stated that she awoke defendant at about 9 a.m. in the morning.
Following closing arguments, the jury was instructed by the court and then retired to consider the evidence. The jury returned verdicts finding defendant Willie Rainge and Dennis Williams guilty of the aggravated kidnapings and murders of Lawrence Lionberg and Carol Schmal and guilty of the rape of Carol Schmal. The jury found defendant Kenneth Adams guilty of the murders of Lionberg and Schmal and guilty of the rape of Ms. Schmal. The State informed the court that it intended to seek the death penalty for Williams, Adams and Rainge. Adams elected to be sentenced by the court and the other two elected to be sentenced by a jury. It was agreed that the sentencing would be heard by a different jury and that the hearing would be conducted in two phases. The first stage would involve the determination as to whether the statutory factors which would warrant the imposition of the death penalty existed and the second stage would involve whether the death penalty was to be imposed.
During the first stage of the sentencing hearing, Lieutenant Vanick, Investigator Pastirik and Dr. Robert Stein testified to matters covered in their testimony at trial. The State also called the foreman of the jury who stated that the jury heard the evidence, deliberated and returned guilty verdicts against the defendants. The signed verdict forms were admitted into evidence and the parties stipulated that on May 11, 1978, Dennis Williams was 21 years old and defendant Rainge was 20 years old. After closing arguments and instructions from the court, the jury found that Rainge and Williams were over 18 years of age at the time the murders were committed and that each had been convicted of murdering two or more persons pursuant to section 9-1(b)(3) of the Criminal Code of 1961. Ill. Rev. Stat. 1977, ch. 38, par. 9-1(b)(3).
In the second phase of the sentencing hearing, the State called Investigator Pastirik to testify. Pastirik stated that on May 13, 1978, he saw Paula Gray at the Homewood branch of the sheriff's police. Counsel for the defense objected and during a conference in chambers argued against the admission of any testimony concerning Paula Gray's out-of-court statement. The court agreed with the State's position that under the death penalty statute the rules of evidence applicable at trial do not apply and that hearsay testimony was admissible. Pastirik recounted Paula Gray's statements which indicated that Dennis Williams was the person who shot Lionberg and Schmal. Gray told Pastirik on the morning of May 11, she was sitting in defendant Adams' vehicle when they saw a group of men trying to push a red Toyota out of some mud. She stated to Pastirik that Williams took a white man and woman from the car and directed them to an abandoned building at 1528 Cannon Lane. She told Pastirik that Williams, Verneal Jimmerson and defendant Rainge had intercourse with the woman twice and that defendant Adams had intercourse with the woman once. She stated to Pastirik that Williams then rolled the woman on her stomach and fired two shots into her head. Pastirik stated that she told him that the man was taken to a nearby field where Williams shot the man twice in the head and defendant Rainge shot him once in the back. According to Pastirik, she told him that Williams threw the weapon into the creek which ran near the field. She also stated that Williams told her that if she told anyone about the foregoing, he would kill her and her family. Pastirik stated that Gray related this version of the events of May 11 to a grand jury. He stated that Gray testified during a preliminary hearing and told the court that the story which she told the police was a lie and that, as a result, Gray was indicted for perjury and murder.
The State offered the testimony of Ernest DiBenedetto, an Assistant State's Attorney, who stated that he took a statement from Paula Gray on May 14. DiBenedetto's testimony concerning Paula Gray's statement paralleled the testimony of Pastirik. The State's final witness was Shirley Thompson who testified that she was the court reporter when Paula Gray was questioned before the grand jury. She read the contents of Gray's grand jury testimony to the jury. *fn1 Certified copies of Dennis Williams' pleas of guilty to theft and arson in 1976 were admitted and read to the jury. The State then rested.
The defense in mitigation offered the testimony of Paulette Gray, Paula Gray's sister. Paulette stated that she was not told of the incidents of May 11 by her sister. She denied making any statements to the police concerning her knowledge of the events and the involvement of her sister. Louise Gray, the mother of Paula and Paulette Gray, testified that she was at the police station where she told Paula to tell the truth. She stated that she did not know what Paula had told the police. Mrs. Gray also stated that Paula had testified before the grand jury.
The defense offered the testimony of Father James Bresnahan and, on motion of the State, the court excluded the testimony because it found the testimony to be irrelevant. Paula Gray, who was tried before a separate jury, testified that the police forced her to make up a lie and that she told her mother and sister about the murders because the police made her tell a lie. She stated that Williams, Jimmerson, Adams and Rainge did not do anything and that she did not know anything. Counsel asked Paula Gray to tell the jury the lie that she was forced to tell and she recounted the events in much the same fashion as her grand jury testimony. On re-cross-examination, Paula stated that she was offered $50 to tell who was involved in the murders.
Mrs. Lula Mae Williams, the mother of Dennis Williams, stated that she woke up about 2:30 a.m. on May 11, 1978. She stated that she assumed Williams was home because the light was on in his bedroom. After May 11, Mrs. Williams stated that she took the Gray family into her home and Paula Gray was living there until she was arrested. Georgia Beamon, the mother of the defendant Willie Rainge, testified that on the morning of May 11 at about 1 a.m., Rainge was at home with his girlfriend. She stated that he took his girlfriend home at 2:45 a.m. and then returned. She stated that Rainge and Williams had been friends for about eight years. The defendants introduced a memorandum prepared by Ernest DiBenedetto, an assistant State's Attorney. DiBenedetto's memorandum related that he had spoken with defendant Adams and that Adams stated that when Dennis Williams arrived at the Gray home at 1 a.m. on May 11, he may have heard a pounding noise emanating from the trunk of Williams' vehicle, but that he was not sure. In a statement made to a court reporter at a later time, Adams failed to mention this pounding noise. DiBenedetto's memorandum stated that the three statements taken from defendant Rainge were substantially the same as those made by Adams. Dennis Williams concluded the defense's evidence in mitigation. Williams recounted his prior criminal record and denied any involvement in the crimes. Williams' testimony was essentially similar to his trial testimony.
The State then presented three witnesses in rebuttal. Walter Shirk, the ballistics expert who testified at trial, stated that tests determined that the bullet fragments recovered from the bodies of Lionberg and Schmal had been fired from the same weapon. Michael Podlecki gave testimony which was similar to his testimony at trial. Finally, Charles McCraney's testimony was similar to the testimony that he had given at trial. Following closing arguments, the jury retired to deliberate. The jury concluded that as to Williams and defendant Rainge that there were no mitigating factors to ...