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People v. Neal





Appeal from the Circuit Court of Lake County, the Hon. Harry D. Strouse, Jr., Judge, presiding.


Rehearing denied February 4, 1986.

The defendant, Johnny Neal, Jr., was charged in a criminal information in the circuit court of Lake County, with three counts of murder (Ill. Rev. Stat. 1981, ch. 38, pars. 9-1(a)(1) through (a)(3)), one count of armed robbery (Ill. Rev. Stat. 1981, ch. 38, par. 18-2(a)) and one count of home invasion (Ill. Rev. Stat. 1981, ch. 38, par. 12-11). The home invasion count was nol-prossed by the State prior to trial. Following a jury trial, the defendant was found guilty on all counts. A separate sentencing hearing was held before the same jury. The jury first determined that the defendant was eligible for the death penalty under sections 9-1(b)(6)(a) through (c) of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, pars. 9-1(b)(6)(a) through (b)(6)(c)). In the second phase of sentencing, at which the jury heard evidence in aggravation and mitigation, it unanimously decided that there were no mitigating factors to preclude the imposition of the death penalty. The court sentenced the defendant to death on the murder counts and, later, imposed an extended-term sentence of 60 years' imprisonment for armed robbery. The defendant has appealed directly to this court under section 4(b) of article VI of the Constitution of Illinois and under our Rule 603 (87 Ill.2d R. 603).

The evidence showed that on August 22, 1982, the body of Lillian Waid, a 63-year-old widow, was found by her son on the bedroom floor of her residence in Waukegan. The house had been ransacked. An autopsy revealed 17 blunt trauma lacerations of the victim's head which caused multiple fractures of the skull. Two stab wounds to the left chest which penetrated the heart and a lung were inflicted after the victim's death. It was determined that Mrs. Waid had been dead two or three days before her body was discovered and that the cause of death was multiple blunt trauma to the head.

The victim's son, Ed Grissom, called the sheriff's office upon discovering his mother's body. Grissom testified that when investigators arrived, he gave the officers a piece of paper that he found in a bowl where his mother kept notes. The piece of paper had the names Johnny and Chris written on it, and a telephone number and address which was later determined to be the defendant's. Mrs. Waid's auto, a blue 1982 Oldsmobile, was missing from her garage.

One of Mrs. Waid's neighbors, J.B. Buzbee, saw a brown or yellow Cadillac pull into Mrs. Waid's driveway at approximately 6:30 p.m. on August 19, 1982. Mr. Buzbee testified that he saw a man and woman get out of the car, meet Mrs. Waid on the patio and enter her house. The man and woman left the house after a short time. This was the last time that Buzbee saw Mrs. Waid. At trial, Mr. Buzbee also identified a picture of the defendant's car, a tan and yellow Cadillac, as the car that he saw parked in Mrs. Waid's driveway on the evening of the 19th.

Deputy Sheriff John Krempotic testified that on the afternoon on August 22, 1982, he was instructed to check the address noted on the paper found in the victim's home, for a brown or yellow Cadillac. He proceeded to the location of the address and found the defendant's car in the apartment complex parking lot where the defendant resided. Deputy Sheriff Steve Semenck testified that on August 22, 1982, he located the victim's auto in the parking lot of the Saloon tavern in Winthrop Harbor, the significance of which appears later.

Detectives Michael Blazincic and Charles Fagan testified that they were the investigating officers assigned to Mrs. Waid's homicide. After investigating the scene and questioning witnesses on August 22, 1982, they attended the autopsy of the victim later that day. After leaving the coroner's office, they received information that the car seen in the victim's driveway on the 19th was located at the address appearing on the piece of paper found at the crime scene. They went to the defendant's apartment at 11:30 p.m. on the 22nd of August, 1982, to interview him. A police dispatcher telephoned the defendant and requested that he meet the two detectives at the apartment-complex door. When the detectives identified themselves and asked if they could speak to the defendant, he invited them into the apartment. The defendant's wife, Jutta, was also in the apartment.

Detective Fagan testified that he advised the defendant that they had information that his car, or one similar to his, had been parked in Mrs. Waid's driveway on the evening of Thursday, August 19. The defendant replied yes, that his car had been in her driveway. Fagan then advised the defendant that they were investigating the murder of Mrs. Waid. Fagan testified that the defendant appeared nervous and replied, "Well, I didn't do it."

At this point, Fagan asked the defendant if he would mind getting dressed and accompanying the detectives to their car for a private conversation outside the presence of his wife. Fagan testified that the defendant was very cooperative and willingly went with them to the car. Once in the car, Fagan gave the defendant Miranda warnings. The defendant acknowledged that he understood his rights and signed a written notification of rights form. Fagan asked the defendant of his whereabouts on the evening of the 19th. Fagan testified that the defendant stated that he and his wife went to Mrs. Waid's residence on the 19th about 8 p.m. to obtain motor oil for his car. After that they drove toward a bar named Clark's but had engine trouble on the way. They continued to the bar and the defendant told his wife to go inside. He repaired the car, then went inside, had a couple of drinks, and drove home with his wife. Fagan informed the defendant that Mrs. Waid's auto had been taken but was found at a tavern in Winthrop Harbor. The defendant replied that they would find his fingerprints in the car because he had driven Mrs. Waid to a doctor's office the day before.

Fagan asked the defendant if he had been drinking at a tavern called the Saloon in the late evening of the 19th. The defendant said that when he returned home on the 19th, his wife went to sleep, and he did, in fact, drive to the Saloon to drink more beer. Fagan then told the defendant that the police had recovered Mrs. Waid's auto at the Saloon tavern, to which the defendant replied he was probably going to get the electric chair and told the detectives that he had killed Mrs. Waid. Fagan then asked the defendant if he would go with them to the sheriff's department for further questioning, to which the defendant said he would. Fagan again read the defendant his Miranda rights when they arrived at the station. The defendant then made a detailed confession to the murder of Mrs. Waid which was tape recorded. This tape was played for the jury at trial.

In his confession the defendant stated that he and his wife knew Mrs. Waid and that they went to her home on the 19th to borrow motor oil for his car. When Mrs. Waid was not looking the defendant took a set of keys from her kitchen with the intention of later using the keys to enter her residence and rob her. He and his wife then left, and while driving to a nearby bar the car developed engine trouble. He drove to the bar and told his wife to go inside while he fixed the car. Instead, he ran back to the Waid residence, carrying with him a knife and a 17-inch lead pipe filled with concrete and wrapped with black tape. As he approached her front door, Mrs. Waid saw the defendant through the screening and asked him what was wrong. He told her his car had engine trouble and "asked for a ride." She allowed the defendant to enter the house and the defendant then pulled out the knife and pipe and told her that he intended to rob her. He pushed her toward the bedroom and demanded her money. She pleaded with him not to hurt her. Once in the bedroom, she opened a black file cabinet and reached inside, apparently for money. The defendant stated he thought she was reaching for a gun so he struck her in the head with the pipe and she fell to the floor. He then struck her several times more in the head, changing the pipe to his right hand during the course of the beating. He then apparently stabbed her twice with the knife. He stated that he "blacked out" after striking her a few times because he had a bad headache. There was no money in the file cabinet and no gun. The defendant ransacked the home. He took the victim's purse, which contained $25, went to the garage, and took off his bloody shirt. Wearing a T-shirt, he drove Mrs. Waid's auto back to the bar where he had left his wife. On the way, he threw from the car window a pair of gloves he used during the murder and robbery. These gloves were later recovered by the police. He entered the bar and had a few drinks with his wife, and they both returned to their apartment. When his wife fell asleep, he drove back to where he had left Mrs. Waid's auto. He retrieved his bloody shirt, Mrs. Waid's purse, and the knife and pipe from the back of Mrs. Waid's car and put them in a plastic garbage bag. He put the bag in his car and then drove Mrs. Waid's auto to the Saloon tavern and left it unlocked with the keys in it, with the hope that it would be stolen. He hitchhiked back to his car and drove it to Lake Michigan. He threw the garbage bag into the lake, but the bag floated. He waded to the bag and tore holes in it so it would sink. He stated that the purse did not sink but floated away. He then returned home.

The morning after his confession, the defendant led the police to the place where he had thrown the bag into the lake. The police recovered the lead pipe wrapped with black tape and also a long-sleeved green shirt which was determined to be the defendant's.

After the trial, the jury found the defendant guilty of murder and armed robbery. At the sentencing hearing the same jury found the existence of statutory aggravating factors and unanimously determined that there were no mitigating factors to preclude the death sentence. (Ill. Rev. Stat. 1981, ch. 38, pars. 9-1(b), (c), (g).) The court sentenced the defendant to death.

The defendant first contends that the trial court erred in denying his pretrial motion to suppress his statements made to the police because those statements, and the physical evidence recovered as a consequence of those statements, were the result of an illegal arrest. (The defendant did not challenge the legality of the arrest at the hearing on the motion to suppress.) He argues that at the time he accompanied the detectives in their car, the time at which the trial court determined he was in custody, the officers did not have probable cause to arrest him. The State contends that the defendant was not under arrest prior to giving his confession since he voluntarily accompanied the detectives for questioning. Alternatively, the State argues that even if the defendant was under arrest when he consented to accompany the detectives, there was probable cause at that point to detain him.

At the hearing on the motion to suppress, the testimony of detectives Blazincic and Fagan was that, based on their investigation of the death of Mrs. Waid, they went to the defendant's home to interview him. The defendant invited the detectives into his apartment. They informed the defendant that they were conducting an investigation of the homicide of Mrs. Waid, at which point he became nervous and defensive. Further testimony was that the defendant voluntarily went with the detectives to their car and out of his wife's presence for additional questioning. It was in the car, after he was given Miranda warnings, that the defendant first told the detectives that he was the one who "did it." Later, at the sheriff's department, the defendant gave a detailed taped confession.

The defendant testified that he voluntarily let the detectives in his apartment and went with them to their car. He stated that he thought he was under arrest when he was in the car. He testified that after he was read his rights he was questioned by both detectives, but denied giving any incriminating statements at that time. He said that he confessed to the murder at the sheriff's department only after being told by the detectives that he would get psychiatric help, and that he would not spend time in jail.

At the conclusion of the testimony the trial court found that the defendant was in custody at the time he was in the squad car with the detectives. The court further determined that the defendant understood his rights, there was no evidence of physical abuse, and that the defendant had voluntarily answered questions without threats, coercion or promises of psychiatric help. The court denied the motions to suppress the statements and physical evidence. As stated, the defendant did not raise any question as to the legality of the arrest.

To determine whether there is probable cause to arrest, police officers need not possess evidence sufficient to convict, but need only knowledge of facts which would lead a reasonable man to believe that a crime has been committed and that it has been committed by the defendant. (People v. Eddmonds (1984), 101 Ill.2d 44, 60.) It is clear that, applying this standard, the officers had probable cause to arrest the defendant in their car at the time he stated that he had killed Mrs. Waid. This is consistent with the trial court's ruling that the defendant was in custody in the car, after testimony at the hearing established that the defendant confessed to the killing after questioning in the car. Too, it is clear from the record, as evidenced by the defendant's own testimony, that the defendant voluntarily accompanied the officers to their car. The defendant was not handcuffed nor was he searched. The defendant was read his rights before questioning and understood those rights as evidenced by the testimony of the officers and the waiver-of-rights form signed by the defendant. The trial court found that the defendant did not ask for an attorney, but voluntarily answered questions and confessed to the murder of Mrs. Waid. There was no illegal arrest, and the trial court was correct in denying the defendant's motion to suppress his statements and the physical evidence.

The defendant next contends that he was not proved guilty of armed robbery beyond reasonable doubt because there was no evidence, independent of the defendant's confession, to establish the corpus delicti of armed robbery.

In order for a conviction founded on a confession to be upheld, the confession must be corroborated by some evidence, exclusive of the confession, tending to show that a crime did occur and that the defendant committed it. (People v. Willingham (1982), 89 Ill.2d 352, 358-59.) In People v. Perfecto (1962), 26 Ill.2d 228, this court set out the criteria necessary to establish that a crime was committed, i.e., the corpus delicti of a crime. It was stated:

"`if there is evidence of corroborating circumstances which tend to prove the corpus delicti and correspond with the circumstances related in the confession, both the circumstances and the confession may be considered in determining whether the corpus delicti is sufficiently proved in a given case. [Citation.] The same evidence may be used to prove both the existence of the crime and the guilt of the defendant, the test being whether the whole evidence proves the facts that a crime was committed and that the accused committed it. [Citations.]'" 26 Ill.2d 228, 229.

The evidence here showed that on August 19 at 11:30 p.m., the back door of the victim's home was ajar and the bedroom had been ransacked. The victim had been beaten to death and stabbed with a knife. The victim's car was found at the Saloon tavern, unlocked, with the keys in the ignition. Gloves splattered with human blood were found at the location the defendant stated he threw them out of the car window. The pipe and the defendant's shirt were discovered at the location in the lake where the defendant stated he threw them.

This evidence is consistent with the detailed confession of the defendant that he beat Mrs. Waid with the pipe, ransacked her bedroom, and took her purse which contained $25. That the purse was not found does not disprove that there was a robbery. Instead, the absence of the purse corroborates the defendant's statement that the purse floated away after he threw it in the lake. The record does establish the corpus delicti independent of the confession, in corroboration of the defendant's statements that he killed Mrs. Waid and took her purse and money. It was proper for the jury to find the defendant eligible for the death penalty, since there was the aggravating factor of murder in the course of the armed robbery (Ill. Rev. Stat. 1981, ch. 38, par. 9-1(b)(6)).

The defendant complains that improper comments were made by the prosecutor during closing arguments at trial and sentencing which require reversal of his conviction and vacation of the death sentence.

At the second phase of the sentencing hearing, at which evidence in aggravation and mitigation is introduced, the prosecutor argued:

"There are no significant mitigating factors in this case to prevent you from imposing the death penalty. You are to follow the law, and you are to remember that from the time this case has started, and the evidence was presented, you have not seen or ...

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