Appeal from Circuit Court of Madison County; the Hon. Philip
J. Rarick, Judge, presiding.
PRESIDING JUSTICE KASSERMAN DELIVERED THE OPINION OF THE COURT:
Rehearing denied July 18, 1986.
Defendant, Randy L. Brackett, was charged by indictment in Madison County with four counts of murder (Ill. Rev. Stat. 1981, ch. 38, par. 9-1), rape (Ill. Rev. Stat. 1981, ch. 38, par. 11-1), deviate sexual assault (Ill. Rev. Stat. 1981, ch. 38, par. 11-3), and two counts of aggravated battery (Ill. Rev. Stat. 1981, ch. 38, par. 12-4). Pursuant to defendant's motion to sever, a separate trial was allowed for the murder charges. At the first bench trial, defendant was convicted of rape and the two counts of aggravated battery but acquitted of deviate sexual assault. Defendant was sentenced to an extended term of imprisonment of 60 years for rape and concurrent extended terms of imprisonment of 10 years for each count of aggravated battery. (Ill. Rev. Stat. 1981, ch. 38, pars. 1005-8-2, 1005-5-3.2(b).) At the second bench trial, defendant was convicted of murder. Defendant was sentenced to an extended term of imprisonment of 60 years for murder (Ill. Rev. Stat. 1981, ch. 38, pars. 1005-8-2, 1005-5-3.2(b)), to run concurrently with the sentences previously imposed for rape and aggravated battery. Defendant appeals. The facts are as follow.
Alton police officer Jerry Farmer testified that at about 9 a.m. on October 21, 1981, he was dispatched to 3208 Brown Street in Alton to investigate a possible rape. Upon arrival, Farmer found the 86 year-old victim lying naked on a bed with her face severely bruised, her left eye swollen almost shut, and with what appeared to be a broken arm. The victim, who was very upset, told Farmer that she had been beaten, choked, and raped twice the previous night. She stated that her assailant was young, white, and had dark hair.
While gathering evidence at the crime scene, officers found a book of checks of the Bank of Alton imprinted with the victim's name. After informing the bank that a possible suspect may attempt to cash one of these checks, the bank informed the police that an individual had attempted to do so earlier that morning. Cindy Duggan, a teller at the bank, testified that a young white male attempted to cash a check drawn on the victim's account at approximately 8:20 a.m. Ms. Duggan identified defendant at a photographic line-up before defendant's arrest and at trial as the person who attempted to cash the check. The defendant was apprehended later the same day. A check written on the victim's account was found in his possession.
A medical examination of the victim was performed upon her arrival at the hospital. This examination revealed that the victim had sustained a broken arm, a broken rib, and several bruises to her face, neck, arms, trunk, and inner thighs. A rape-test kit showed that although no spermatozoa was found in the victim's vagina, mouth, or rectum, blood compatible with the victim's blood type was found in her vagina. The victim's blood type matched blood found on two pillowcases removed from the scene and blood found on defendant's undershorts when he was apprehended. Seminal material consistent with the defendant's blood type was also found on these pillowcases. Pubic hairs found on the victim's bed sheets matched samples taken from defendant.
A videotape of defendant's confession was played in open court. In his statement, defendant claimed that on the night in question he knocked on the victim's door and the victim let him into her house. She lay down on a bed while defendant sat in a chair. After a while, the defendant approached her and began fondling her breasts. She placed her hand on his jaw, digging in her fingernails. He pushed her hand away and continued fondling her breasts. He removed his clothes, masturbated himself, then inserted his penis into her vagina. He withdrew his penis and ejaculated. During these activities, he struck the victim in the face once with his fist and once with his open hand. Afterward, he arose from the bed, fried some eggs, and fell asleep in a chair. When he awoke in the morning, he searched unsuccessfully for something to sell and then had the victim write him a check for $125 after he found her glasses so that she could see. He was unable to cash the check because the bank reported the account was closed.
Dr. Robert Elliott, the victim's physician, testified that prior to the attack the victim was in relatively good health. After the attack, Dr. Elliott observed that although her injuries were healing normally, she became withdrawn and depressed and felt that she did not want to live any longer. While she was in the hospital, the victim resisted all efforts to feed her.
After approximately two weeks in the hospital, the victim was transferred to a nursing home. Nursing-home personnel noted that the victim was very weak and resisted their efforts to feed her. On or about November 21, 1981, the nursing-home staff, at the suggestion of Dr. Elliott, attempted to feed the victim with a nasal gastric tube. This suggestion was abandoned because the victim's small nose and facial injuries made it too painful. Dr. Elliott advised the nursing-home staff not to use the tube because its use would only prolong the misery of the victim, whose death he believed imminent.
When nurse Bernice Doerr arrived at the nursing home on the morning of November 24, 1981, she was informed that the victim's condition had worsened so much the previous night that her family had been called. Specifically, her blood pressure was low and her legs were cyanotic. The victim looked very weak when Ms. Doerr saw her that morning. Ms. Doerr made a record of the fact that the victim was moaning and turning her head from side to side at 11 a.m.
Dorothy McBride, a nurse's aide, testified that she fed the victim lunch on November 24, 1981, by giving her small bites of pureed food on the end of a spoon. After hungrily consuming approximately six ounces of food without choking or gagging, the victim spit out some vegetables. After an unsuccessful attempt to get the victim to swallow some ice cream, Ms. McBride summoned the nurses. The victim died shortly thereafter.
Dr. Steven Nuernberger performed an autopsy on the victim. He found that the victim died of asphyxiation caused by soft yellow food matter packed in the trachea and bronchi. While Dr. Nuernberger believed that the numerous injuries present upon the victim's body would not impede her ability to swallow, he agreed that a broken rib could decrease one's ability to expel food from the trachea. However, Dr. Nuernberger believed that a normal person would have had difficulty breathing deeply enough to expel the volume of food found in the victim's trachea.
Although Dr. Elliott had not seen the victim since she left the hospital, he believed her death was caused by her being too weak to swallow food.
On appeal the defendant argues that: (1) he was not proved guilty of murder beyond a reasonable doubt because the victim's death was caused by supervening acts unrelated to the defendant's acts of sexual assault; (2) alternatively, the defendant's convictions for rape and aggravated battery must be vacated as either violative of the constitutional prohibition against double jeopardy or as lesser included offenses of murder; (3) alternatively, one of defendant's aggravated-battery convictions must be vacated because the two acts constituting aggravated battery were almost simultaneous in time and involved the same victim; and (4) alternatively, the extended-term ...