Appeal from the Circuit Court of White County; the Hon. Henry
Lewis, Judge, presiding.
JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:
Defendant, Tommy Gordon Floyd, was charged by information with the murder of his wife, Avinelle Floyd. Following a jury trial in the circuit court of White County, defendant was convicted of murder and sentenced to 30 years' imprisonment. On appeal, defendant contends that the trial court erred in admitting certain hearsay statements made by the victim shortly before her death and in instructing the jury that defendant had confessed to murder.
The first witness to testify at trial was Chief Deputy Sheriff Mark Hall. Hall testified that on March 31, 1980, he received a report from Ray Yates and Chelsea Staley regarding an abandoned car parked near the Grindstone Creek Bridge. Yates and Staley believed that the car belonged to Avinelle Floyd whom they were aware did not report to work that day. After ascertaining that she was not at home, Hall, Yates and Staley went to the bridge where the car was parked. Hall checked the license on the car and determined that it was registered to Floyd's Auto Repair in Herald, Illinois. The three men then proceeded to climb under the bridge where they found Mrs. Floyd's body face down in water with her jeans down between the ankles and knees and the jean jacket and sweater blouse above her waist.
Tom Martin, a crime scene technician in the Illinois Department of Law Enforcement testified that on March 31, 1980, he responded to a call from the sheriff's department in Carmi. Martin prepared a diagram from photographs taken at the scene and testified that the bridge was a 20 foot by 15 foot concrete slab bridge without railings or barriers. He stated that the distance from the top of the slab to the bottom of the creek bed at the middle of the bridge was seven feet, six inches. Martin further testified that a forensic scientist examined scrapings from the fingernails of the decedent and found sand and gravel under the nails.
Paul L. Trefftzs, a funeral director and White County coroner, stated that he was called to the scene and informed that there was a body under the bridge. Civil defense technicians removed the body and placed it in a body bag and brought it to the funeral home where an autopsy was performed the next day. Trefftzs embalmed the deceased and testified that a picture of the victim showed bruises on the forehead, around the neck and right arm, a laceration on the left ear, parched lips and a broken nose.
Charles E. Hatfield, the father of the decedent's first husband and paternal grandfather of the three children of that marriage recounted that decedent expressed concern for her safety. He testified that decedent told him that she had given her children his phone number and said that if anything happened to her would he come and get the children at once. When Hatfield asked her why she was making this request, she said that she could not tell him over the telephone. Hatfield stated that this conversation occurred approximately a week before her death. Angela Hatfield, decedent's daughter, corroborated her grandfather's testimony.
The State introduced the testimony of several other witnesses who testified that decedent had expressed concern for her safety. Gary Finch, the attorney who represented Mrs. Floyd in her divorce proceeding against defendant, which never became final, testified over defendant's objection that decedent indicated that there was a possibility of physical violence. He testified that he told her to inform the sheriff so that he would be prepared in the event she needed to call him. Linda Murphy, a neighbor and friend of Mrs. Floyd, stated that after filing for divorce decedent had stated that she was worried about her physical safety. Sheriff Duckworth and Don Merritt also testified regarding decedent's concern.
Don Merritt, a family friend, testified regarding his visit to the Floyd residence on March 30, 1980. Merritt stated that defendant had broken a fan belt on his wife's car and told him that he was trying, "* * * to stall Nell off from going to town * * * until after 6 o'clock." Merritt further testified that defendant told him that he was going to take his wife to Shawneetown to get her drunk.
Vivian Hickerson, a neighbor of Mrs. Floyd and Barbara Jean Ray, a former waitress at the Levee Tavern in Shawneetown, both testified that defendant and his wife were in the tavern on the evening of March 30, 1980. That evening Mrs. Floyd informed Hickerson that she and her husband were getting a divorce. Hickerson testified that Mrs. Floyd confided in her that her husband was attempting to get her drunk "to get a little," but that he was not going to be successful.
On the evening of March 31, 1980, Mr. and Mrs. Don Merritt, Mr. and Mrs. Richard Smith and Linda Mundy gathered at the Floyd residence after learning that Avinelle Floyd had not returned home from the previous night and did not report to work that day. They testified, over defendant's objection, that defendant told them that he and his wife had argued on their way home from Shawneetown and that she ordered him out of the car and that he then walked and hitchhiked home. After an unsuccessful search for Mrs. Floyd, they returned to the Floyd home where they were informed by the sheriff and the coroner of her death.
Illinois Department of Law Enforcement Agent Steve Huggins testified that he interviewed defendant on several occasions. On the morning of April 1, 1980, and later that afternoon, defendant gave substantially the same account of events to Huggins as he had to family friends the previous evening. On April 10, 1980, Huggins interviewed defendant in the presence of Don Merritt. In his statement which was reduced to writing and later introduced into evidence, defendant stated that he drove with his wife in her car from Shawneetown to Carmi. During the trip to Carmi, defendant made sexual advances which his wife refused. She asked him to stop the car because she had to urinate and he then drove to the Grindstone Creek Bridge. Mrs. Floyd urinated behind the car and as she was standing up, defendant approached her and attempted to embrace her. Defendant then stated, "I don't know if I hit her, but I grabbed her and we fell into the creek." Defendant stated that he then left the creek and walked home.
At approximately 2 p.m. the same day, defendant repeated his statements to Sheriff Duckworth adding that he may have tried to draw his wife close to him before they fell into the creek and that he had seen bubbles around her head after they fell. Later that day, defendant told the sheriff that he had discarded his boots at his Indiana jobsite and had thrown his clothing into the Wabash River. The following day Huggins interviewed defendant "* * * to see if any of the things in Tom Floyd's mind had cleared up following a night's rest." Huggins testified that defendant replied that, "I keep thinking I held her head under, but I didn't mean to hold it under too long. I was just trying to get her to come to me." Huggins further testified that defendant inquired about bond and when he was informed that bond may not be allowed, stated, "I did it. You guys know I did it. I need to get out and see the kids."
Dr. A.J. Venables, a pathologist, testified that Mrs. Floyd died as a result of asphyxia from drowning. On cross-examination, Dr. Venables stated that he did not believe that the bruises on the decedent's face and head or her fractured nose were caused by blows from a fist. According to Dr. Venables, these injuries could have been caused by the body striking rocks in the water. He further testified that in his opinion these injuries would not have been sufficient to render her unconscious at the time she fell into the water.
Defendant testified in his own behalf as to the events of March 30, 1980. Defendant stated that he had worked on his wife's car that afternoon and after repairing it they took it out for a test drive. Although he drove to Shawneetown, defendant stated that this was not his intention when he left his home that afternoon. In addition, defendant ...