Appeal from the Circuit Court of Will County; the Hon. Herman
S. Haase, Judge, presiding.
PRESIDING JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:
Defendant Leamon Jordan was charged by information with felony murder, kidnaping, and, on the basis of accountability, murder and felony murder. After a bench trial, the circuit court of Will County found defendant guilty of the latter three offenses, vacated its murder conviction, and sentenced him to concurrent 14- and 60-year terms of imprisonment.
The foundations of the State's case were defendant's extra-judicial confessions. The first of these confessions was made on March 5, 1981. Defendant met with Will County Investigator Raymond Crompton and Cook County Investigator Claude Kaysen and stated that he would like to relate a "story" or "fable." This was told by means of a role play in which he played himself, Crompton played "J.C.," and Kaysen played "J.S." Kaysen recalled the latter character as "Johnny S."
The role playing opened with J.S. or Johnny S. telling defendant, at a party, that someone had stolen an ounce of his cocaine. J.S. later telephoned defendant and said, "Come to Hooker's. We got to kill a bitch." At Hooker's Highway Lounge, defendant met with J.C. and J.S., and the latter said that Kathleen Jennings, the 17-year-old victim, had stolen his ounce, and that he would teach her a lesson. After the three had "snorted up three lines of `dust,'" J.S. approached Jennings at the bar and asked her to come outside and smoke some marijuana. Once outside, he pushed her into the rear of defendant's brown Buick, which was parked next to his brown Cadillac. Defendant drove with J.C. in the front and Jennings and J.S. in the rear.
As they drove, Jennings denied taking the cocaine and told J.S. that she loved him. J.S. then told defendant to drive to "Joey's house." Upon the group's arrival, Robert Meryfield approached the car and greeted defendant and J.C. When J.S. then entered "Joey's trailer," Jennings attempted to escape, and defendant slapped her and told her to remain in the car. Upon learning of the attempted escape after he returned, J.S. hit Jennings in the face with a beer bottle and asked, "Who's going to kill the bitch? Who is going to kill her?" He then turned to the victim, put his hands on her throat, began to choke her, and asked, "Who's going to kill this bitch? Who's going to take care of her?" When J.S. let go, Jennings remained lying on the seat. All defendant heard from the victim was a "gargling sound."
J.S. told defendant to drive down the street, then down a gravel road to what defendant termed a "barn looking house." J.S. got out of the car, pulled Jennings out by the hair, threw her to the ground, and began kicking her. At no time did she move, scream, flinch, or cry out. J.S. threw up his arms and again asked, "Who's going to kill her?" J.C. then removed defendant's buck knife from the glove compartment and stabbed the victim in the stomach. When J.S. asked what they should do with her, J.C. suggested they "cut her up and throw her all over the place."
The second confession was made on March 23, 1981. Defendant essentially repeated the events of the role play while identifying J.C. as John Cartalino, J.S. as John Siciliano, and Joey's house or trailer as the Joseph Holtrup residence. He also continued his narrative.
After Cartalino had stabbed the victim, he picked her up and walked to the rear of a residence. Defendant and Siciliano entered the front of the residence, walked down a long hallway, and saw Jennings propped up against a wall, half in the hallway and half in a room. After discussions of what to do with the body, defendant drove Siciliano to a service station at the intersection of Illinois routes 83 and 171, where the latter telephoned his father. Sam Siciliano met the group at the Holtrup residence, berated his son, and struck him in the head and body. He then instructed defendant and his son to wait in his car. When he joined them, he said, "Johnny is going to take care of everything."
Sam Siciliano then drove defendant and his son to a cocktail lounge and then to his residence. Defendant was instructed to exchange his bloodied trousers for a new pair. Eddie Migrant joined the group and drove defendant and Sam Siciliano to defendant's Bridgeview apartment, where a neighbor greeted Siciliano. Siciliano purchased defendant's car and told him to deliver it, with the title and keys, to a redheaded man named Art at the Cal Sag Junk Yard. Before doing so, defendant removed his knife from the seat. Facts beyond the two confessions will be introduced in conjunction with the issues to which they are germane.
The first of seven issues presented for our review is whether the admission of dental testimony concerning the cause of death denied defendant his right to confront and rebut the evidence against him in that the State's alleged failure to either adequately photograph the victim's jaw or prevent its cremation foreclosed any possibility of an independent examination of this evidence. Concerning the alleged failure to adequately photograph the jaw, defendant contends the nine photographs admitted into evidence did not accurately portray the color of the victim's teeth. Concerning the jaw itself, defendant contends this evidence should have been preserved for his experts to examine.
Four forensic odontologists testified regarding the photographs and other matters to be later considered. Forensic odontology is a branch of dentistry dealing with dental evidence, usually involving an examination of dental remains for identification, injuries to the jaw or teeth, or bite marks for comparison with those of a suspect. (Thornton, Uses and Abuses of Forensic Science, 69 A.B.A.J. 288 (1983).) Drs. Lester Luntz and George Morgan testified on behalf of the State. Luntz thought that three of the photographs showed pink teeth and that the others were over or underexposed; and that a color patch was not necessary to accurately determine color from a photograph. Morgan, who had examined the jaw before the photographs were taken, thought the teeth were pinker than portrayed. He did not think the undermatting in the photographs that showed pink teeth appeared pink, and he selected three photographs he believed most accurately reflected the color he had observed. Drs. Donald Ore and Edward Pavlik testified on behalf of defendant. Ore found the color variation from photograph to photograph "remarkable" and discussed possible reasons for this. He thought that two photographs, also selected by Morgan, showed magenta or pinkish teeth but also thought the paper underneath those photographs appeared pink. Ore also found the Chicago Tribune on which the jaw was placed in another photograph appeared pink. He concluded that it was possible that none of the photographs accurately depicted the color and that, in any event, he could not make an accurate determination of color because the photographs lacked a balance or color chart. Pavlik thought that only the photograph with the Tribune, which he also thought appeared pink, showed pinkish teeth. He agreed with Ore that where an accurate determination of color is a concern, a color chart is routinely included in a photograph as a small patch inserted by the developer.
• 1 The admission of probative photographic evidence rests within the discretion of the trial court (People v. Lindgren (1980), 79 Ill.2d 129, 402 N.E.2d 238), and a new trial is not required unless a defendant has been prejudiced (People v. Greer (1980), 79 Ill.2d 103, 402 N.E.2d 203). While it is true that colored photographs may be excluded where they would mislead a jury because of the fact that colors are incorrectly portrayed (see 29 Am. Jr. 2d Evidence sec. 798 (1967)), we do not find the court abused its discretion in deciding otherwise. The judge not only saw the three photographs which Morgan said most accurately portrayed the color of the teeth, but also the entire set, which three experts agreed varied from pink to white.
• 2 Defendant's second contention regarding this first issue is that the jaw should have been preserved for his experts to examine. He claims the failure to do so violated his right to due process of law. For there to have been a violation of the right to due process, it must be shown that the evidence was suppressed after a request for it by a defendant, that the evidence was favorable to the defendant, and that it was material. (People v. Nichols (1976), 63 Ill.2d 443, 349 N.E.2d 40.) While not dispositive of this constitutional argument in this setting, we initially note that the jaw was not suppressed. The victim disappeared in December 1979. In March 1980, her head was found in a doghouse. After it was autopsied, examined, and photographed, her father requested her remains and they were cremated. At this time defendant was not even a suspect in this case, and his arrest came approximately a year later. The coroner's action in releasing the remains under these circumstances was humanly decent and in harmony with the public policy of this State (see Ill. Rev. Stat. 1979, ch. 31, par. 10.7). These qualities do not, however, resolve the constitutional question. Assuming, arguendo, the jaw's materiality, it remains necessary to establish the evidence was favorable to defendant. Defendant contends retention of the jaw would have given his experts the opportunity to observe it and perform certain tests. While this would have been unquestionably desirable, the record is devoid of any indication that such would have resulted in evidence favorable to defendant. This being the case, we find no constitutional violation in the State's failure to retain the jaw.
The second issue is whether the trial court erred in holding that odontological testimony allegedly purporting to establish the cause of death had corroborated defendant's extra-judicial confessions. Defendant contends the testimony was inadmissible as odontologists cannot competently analyze medical evidence or draw medical conclusions or, in the alternative, that the ...