Appeal from the Circuit Court of Stephenson County; the Hon.
Dexter Knowlton, Judge, presiding.
JUSTICE HOPF DELIVERED THE OPINION OF THE COURT:
Following a jury trial in the circuit court of Stephenson County, defendant David Hepler was convicted of robbery, residential burglary, burglary, aggravated battery, and felony-murder (based on the commission of the underlying forcible felonies of residential burglary or robbery). (Ill. Rev. Stat. 1983, ch. 38, pars. 18-1, 19-1, 19-3, 12-4, 9-1(3).) He received sentences of 20 years for murder, 12 years for residential burglary, seven years for robbery, five years for burglary, and five years for aggravated battery, all to run concurrently. He was found not guilty of home invasion. (Ill. Rev. Stat. 1983, ch. 38, par. 12-11.) On appeal from the denial of his post-trial motion for a new trial, defendant contends that: (1) the evidence was insufficient to establish his guilt of any of these offenses; and (2) the trial court erred in permitting the State's pathologist to opine as to the cause of death, since this opinion improperly assumed a fact not in evidence, namely, the existence of a stressful event. We reverse.
On Sunday, January 30, 1983, at approximately 1:30 p.m., Isabel Bangasser, an 80-year-old widow residing at 1205 South Maple in Freeport, was found dead of cardiovascular failure in the living room of her home. She was discovered sitting on the floor with her back leaning against the couch. There was no evidence of a forced entry or a struggle; however, Mrs. Bangasser's engagement and wedding rings were missing from her hand, and a ring of keys, which was usually kept on a keyboard in the kitchen, was missing. Mrs. Bangasser's purse was on an end table in the living room; her billfold was found on a step leading to the second floor of the home. Her glasses were discovered behind a pillow on the sofa. Currency located at various places in the house was not disturbed.
An investigation into Mrs. Bangasser's death revealed that on January 29, 1983, the evening prior to her death, she attended Mass. with neighbors from 5:30 to 6:30 p.m. and was wearing her rings at that time. After Mass, Mrs. Bangasser drove her neighbors home and then went to visit her daughter, Dorothy Weist, from 6:30 p.m. until about 9 p.m. Mrs. Weist noticed no unusual marks or bruises on her mother's hands that evening.
On the morning of her death, at around 8:30 a.m., 11-year-old Matt Goebel went to Mrs. Bangasser's house to shovel her sidewalks and driveway. After completing the job, the boy knocked on the door but no one answered. He returned later that morning between 10 and 10:30 a.m. This time Mrs. Bangasser answered the door and paid Matt for his work.
At 11 a.m. on January 30, 1983, a neighbor, Dennis Goethe, was watching television when his dog, which was tied up outside, began barking incessantly. After several minutes, Goethe went outside to investigate the situation. He observed someone, whom he later identified at trial as defendant, standing by Mrs. Bangasser's garage sorting through a set of keys. After watching this man for two to three minutes, Mr. Goethe telephoned Mrs. Bangasser, but no one answered the telephone. Goethe returned to the door and saw the man in Mrs. Bangasser's dark green Plymouth Horizon backing down her driveway. When the car disappeared, Goethe resumed watching television.
At approximately 1:30 p.m. that day Mel and Dorothy Weist went to Mrs. Bangasser's home to pick her up for her 80th birthday party. When they pulled into the driveway, they noticed that a light was on above the garage. After waiting awhile for her mother to come out, Mrs. Weist attempted to unlock the front door, but had difficulty doing so. A subsequent attempt by Mr. Weist to unlock the door was successful. The door had apparently been double-locked, although Mrs. Weist testified that in the 28 years she had lived in the house this double lock was never used. Upon entering the house, the Weists discovered Mrs. Bangasser and the house in the condition previously described. A police search of the house revealed no rings or keys. Also, no fingerprints were discovered on the premises.
The body was examined at the scene by Stephenson County Coroner Richard Cramer. No unusual circumstances were noted, and the body was released to the funeral home, where it was embalmed. A second examination by the coroner at the funeral home revealed several finger-shaped bruises on the deceased's right forearm and a small laceration towards the wrist. Following these findings an autopsy was conducted; however, the cause of death was found to be "undetermined." Mrs. Bangasser was subsequently buried.
Meanwhile, in the early morning hours of January 31, 1983, defendant was discovered traveling northbound just outside Beloit, Wisconsin. At that time and place, he was placed under arrest for driving under the influence of alcohol. Defendant was driving Mrs. Bangasser's dark green Plymouth Horizon and had had an accident in the vehicle. Upon questioning, defendant stated that the car belonged to his grandmother and that he was on his way back home to Freeport from a party in Beloit, although Freeport is located southwest of Beloit. Chemical tests conducted at the Beloit police station revealed that defendant's alcohol level was not high enough to sustain a charge for DUI, and defendant was released on that charge.
On January 31, 1983, at approximately 6:15 p.m., Detective Hannan of the Freeport police department went to the Hepler residence to question defendant, who had since returned from Wisconsin. Detective Hannan requested that defendant come to the police station to answer some questions. The defendant was not under arrest at that time, and he was accompanied to the station by his parents. After being advised of his Miranda rights, defendant gave a statement regarding his whereabouts on the morning of January 30, 1983. In the statement, defendant admitted that he went to Isabel Bangasser's house at approximately 10 a.m. that day; however, he denied having committed the offenses in question and also denied that he had ever been in Mrs. Bangasser's car. During the interview, Detective Hannan noticed a large bruise on defendant's right hand, which defendant stated he had received the previous Saturday when he brushed his hand against a doorway.
On February 1, 1983 (Tuesday), Freeport police received an anonymous call directing them to the intersection of Homer and Cherry streets in Freeport, where they found Mrs. Bangasser's automobile. According to a nearby resident, the car had been there since Monday evening, but was not there Sunday evening. The vehicle was removed to the police department, and a subsequent search of it revealed a gold key with tape which had initials on it and a latent fingerprint on the glass on the inside passenger door. The key was later found to fit the emergency release lock on the Bangasser garage door, and the fingerprint was identified as defendant's.
Police again questioned defendant on February 10, 1983, regarding his whereabouts on January 30 and 31, 1983. During this second period of questioning, defendant stated he was in Monroe, Wisconsin, and had gotten into a fight with a man who had driven him there. The police then informed him that they could prove that he was in Mrs. Bangasser's car, and defendant responded, "You'll just have to prove it."
After learning of the suspicious circumstances surrounding Mrs. Bangasser's death, the body was exhumed and another autopsy was performed, this time by Dr. Robert Stein, the Cook County medical examiner. Also present during this autopsy were Dr. Roh, the hospital pathologist who performed the original autopsy, and Dr. Rouse, the defendant's medical expert. External examination revealed several elongated bruises on the right forearm and a large bruised area on the right upper arm, which Dr. Stein concluded were caused prior to death. Internal examination revealed some arteriosclerotic changes in the heart. According to Dr. Stein, these findings, without any further history or knowledge of the surrounding circumstances, were inconclusive as to cause of death. Dr. Stein was then given a lengthy hypothetical, objected to by defendant, in which he was asked to assume the circumstances in evidence. On the basis of the facts so assumed, Dr. Stein opined that fright was the initiating factor that resulted in cardiovascular failure. He also stated that due to the fact that Mrs. Bangasser had already been embalmed, he was unable to conduct a toxicology test upon her body. Regarding the elongated bruises, Dr. Stein stated that he could not think of an instrument that could have inflicted the bruises because they were "too uniform and too parallel."
Testifying in defendant's behalf was Rev. Karl Hepler, a neighbor of Mrs. Bangasser and defendant's father. Rev. Hepler testified that on Sunday, January 30, 1983, defendant was at home when he and his wife left for church around 9 a.m. Defendant was also at home when the Reverend returned home from church around noon. The witness learned of Mrs. Bangasser's death around 2 p.m. that day; his son was still in the house at that time. However, defendant left the house later that ...