Appeal from the Circuit Court of Madison County; the Hon.
Charles V. Romani, Jr., Judge, presiding.
JUSTICE JONES DELIVERED THE OPINION OF THE COURT:
Following a three-week jury trial in June and July of 1983, the defendant, John Prante, was found guilty of the murder of Karla Brown and sentenced to the Department of Corrections for a term of 75 years. He appeals, presenting six issues for review: (1) whether the evidence was insufficient to prove the defendant guilty beyond a reasonable doubt "in that the prosecution failed to prove criminal agency on the part of the defendant or that he committed any act which caused or contributed to the death of the deceased"; (2) whether it was prejudicial error for the court to allow the People's instruction No. 7, based upon Illinois Pattern Jury Instruction, Criminal, No. 3.02 (2d ed. 1981) (hereinafter cited as IPI Criminal 2d) without the "bracketed" material since the prosecution's case was based on circumstantial evidence; (3) whether "[t]he prosecution's tactic of improperly introducing and indicating to the jury in opening statement and under it's [sic] case-in-chief, the defendant's prior extra-judicial statements as substantive evidence rather than for the limited purpose of impeaching testimony of witnesses, denied the defendant a fair trial and due process of law in accordance with Fifth Amendment to the United States Constitution"; (4) whether "[t]he prosecutor's conduct during the course of the trial compounded the aforementioned error and resulted only in inflaming the jury"; (5) whether expert testimony concerning bite marks should not have been permitted "because of its exclusionary nature and its improper conclusiveness of the guilt of the defendant"; and (6) whether the defendant's motion for a change of venue should have been allowed "as a result of the use of the press as an investigative tool by the prosecutor." In his reply brief the defendant contends that he was denied the effective assistance of counsel. The State moved to strike those portions of his reply brief raising that issue. The State's motion and the defendant's objection thereto were taken with the case.
At trial the State called over 50 witnesses. On June 21, 1978, at about 5:45 p.m. the police department of the city of Wood River received a call to come to 979 Acton concerning the death of Karla Brown, who, with her boyfriend, had moved to that address the day before. The seminude body of this 22-year-old woman had been found in the laundry room in the basement of the house some minutes earlier by her boyfriend, Mark Fair, returning from a day at work, and a friend, Thomas Feigenbaum, who was at that time using his truck to help Mark Fair move some large items to the house on Acton. The victim, about 4 feet 11 inches tall and weighing about 100 pounds, was found with her head and shoulders immersed in water in a large metal lard can that had been used to store winter clothes. Her hands were tied behind her back with a white extension cord from which the ends had been cut. Her stiffened body was bent over the barrel at the waist. Nude below the waist, she was wearing a heavy sweater that was buttoned and that she usually wore only for social occasions in cold weather. Two men's socks, tied together, were tied tightly around her neck. She had a large gash on her forehead, a cut on her nose, and a large gash on her chin. The area where the socks had been tied around her neck was bruised. The socks had been kept in a dresser drawer in a bedroom upstairs, the extension cord had been packed in a box in the basement, and the clothes in the lard can had been dumped on the basement floor. A couch in the basement was blood soaked, and blood was splattered on the basement floor. The bloodied cushion was heavily saturated with water. On a coffee table near the couch was a blood-stained tampon. At one end of the couch a stand of TV trays was overturned. A coffee pot from the couple's coffee maker was found in the rafters of the laundry room. The entrance at the rear of the house leads directly to the basement.
The police secured the crime scene. All of the State's witnesses who had been at the scene testified that, with the exception of Mark Fair and Thomas Feigenbaum, only medical and law-enforcement personnel were or could have been at the scene. According to their testimony, the defendant was not there at any time and could not, because of security, have been anywhere in the house at 979 Acton after the police arrived. No information was distributed to the public. The occupant of the house next door at 989 Acton was Paul Main, a friend of the defendant. One of the police officers, Charles Nonn, who arrived at the scene at about 6:20 p.m., had known the defendant for four or five years prior to the time of the murder and testified that he saw the defendant standing outside with Paul Main when the witness arrived to investigate the crime. Although the crime scene was processed for fingerprints, those identified, with the apparent exception of one, were the victim's. No fingerprints of the defendant were found at the scene. There was testimony that in such a case the police would expect to find more fingerprints than were actually found.
The State called as witnesses persons who had spoken with the victim on the telephone on the morning of June 21, 1978. At about 9:30 a.m. that day the victim had called Jamie Hale, a friend, and seemed to be fine. When Jamie Hale tried to call the victim that same day at about 2:30 p.m., she got no answer. At about 10 a.m. that day the victim had called Debra Davis, who left shortly thereafter to visit the victim. When she reached the victim's residence at about 11 a.m., no one answered either the front or the back door, although the victim's van was at the house. She tried to telephone the victim at about 11:45 a.m. or 12 p.m. and repeatedly throughout the afternoon but got no answer. At about 9 a.m. that day the victim called Helen Fair, the mother of Mark Fair, who returned her call between 10 and 11 a.m. The conversation was interrupted by the victim's saying, "Helen, someone is at the door, and I'll call you back." When the witness did not hear from the victim, she tried to call her between 12 and 12:30 p.m., but there was no answer.
Eric Moses, who was 11 years old at the time of trial and 6 years old at the time of the murder, testified that he had lived in the house at 979 Acton and that on June 21, 1978, while his grandmother was taking him to a dental appointment in the area, he forgot to tell her where the dentist's office was. To turn around she used the driveway at 979 Acton, at which time, about 10:45 a.m., the witness saw a woman, matching the description of the victim, and a man talking in the driveway. Edna Moses, Eric's grandmother, testified similarly and stated that, as she was turning around, the woman started to walk toward the house.
On the date in question Edna Vancil, the aunt of Paul Main and his sister, Elizabeth Westbrook, lived across the street from the residences of the victim and Paul Main. The witness testified that on that morning Elizabeth Westbrook visited her, having arrived between 9:30 and 10 a.m. in the defendant's car. The defendant, she said, went to Paul Main's house and sat on the front porch with Paul Main until about 11 a.m., when the two "disappeared" until almost noon, at which time they resumed sitting on the porch until about 3 p.m., when the defendant left in his car. She testified that she did not see him or his car the rest of that day.
John Scroggins, who knew both the victim and the defendant, testified that on the afternoon before the murder, he and the defendant had been at Paul Main's, at which time he introduced the victim and the defendant, who afterward on that same day expressed considerable sexual interest in the victim.
According to testimony by an employee of the Shell Refinery, seemingly located in the St. Louis, Missouri, area, the defendant had submitted an employment application there in person sometime between 8 a.m. and noon on June 21, 1978. On an employment application to Aerco Industrial Gases dated June 19, 1978, the defendant listed as his first reference Spencer Bond.
The State put on evidence that the victim had been a student at Southern Illinois University at Edwardsville in 1975 or 1976 and was a student there for three years.
In the summer of 1980 Alva Busch, a crime-scene technician with the Department of Law Enforcement, was investigating the case and felt that two new techniques, unavailable at the time of the murder, might aid the investigation: green laser, used with respect to fingerprints; and image enhancement, which was being used to identify instruments that had made wounds and to identify bite marks. In mid-August of 1980 police sent Dr. Homer Campbell of the University of New Mexico all of the photographs they had of the crime scene. Dr. Campbell wanted the TV trays and tray rack hand carried to him and found blood on the bottom of the rack. Dr. Campbell indicated that certain marks, in the area of the victim's right collarbone, were bite marks. Prior to this time no one who had examined the body or worked on the case had been particularly familiar with bite marks or had thought that there were any on the body of Karla Brown. In the spring of 1982, according to Agent Randall Rushing of the Department of Law Enforcement, an investigation plan was developed to take photographs of the crime scene to a "profile man" by the name of Douglas, at the FBI Academy at Quantico, who provides psychological profiles of criminal suspects. At that time the investigation focused on Paul Main and had not yet focused on the defendant. As a result of the meeting with Mr. Douglas, the police decided to proceed, with the agreement of the victim's family, to exhume the victim's body. The police believed that "after four years the killer had become complacent, and a high profile was developed in order to make the killer nervous." To promote the plan "[a] high amount of coverage profile by the media was generated." Articles appeared in newspapers of the area concerning the impending exhumation, the existence of bite marks on the body, and technological advances in forensic science since the time of the murder. On June 1, 1982, Karla Brown's body was exhumed and a second autopsy performed.
At the first autopsy on June 22, 1978, Dr. Harry Parks, the pathologist who performed it, observed two large lacerations on the face, a fracture of the jaw at the tip of the chin, and several bruises, especially severe around the throat and consistent with strangulation, which was, in his opinion, the cause of death. He estimated the time of death to have been about six hours before the body was found at about 5:45 p.m. The time of death could, he said, vary by as much as two to three hours. Because he observed no water in the lungs, he was of the opinion that the victim was not breathing at the time her head was submerged in the water. He palpated no skull fractures and at the time noticed nothing indicative of human bite marks. He testified that at the time he did the autopsy he knew very little about bite marks and had heard very little about their usefulness as evidence.
On June 2, 1982, following exhumation of the body, Dr. Mary Case performed the second autopsy. She found that the jawbone had been broken in two places by a single blow and that the skull had been injured in three places by three blows of significant force with a blunt instrument. A blow to the back of the head had caused a fracture of the strongest portion of the bone of the head. The witness was of the opinion that the cause of death was drowning because of the presence of foam around the nose, indicating that the victim had had respiratory movements under the water. The witness was of the further opinion that the victim had been sexually assaulted. She testified that bite marks in the area of the right collarbone had been inflicted at about the time of death when the other injuries were inflicted and not, for example, two days earlier or even one hour earlier, because microscopic slides of that tissue showed fresh hemorrhage in the subcutaneous tissue with no inflammation.
Agent Thomas O'Connor of the Department of Law Enforcement testified that on July 1, 1982, at about 3 p.m. he had interviewed Vickie White at her place of employment; at about 5:45 p.m. that same day he had interviewed Mark White, her husband; after 10:30 p.m. that same day he had talked with Roxanne Bond; and later that same evening he had interviewed her husband, Spencer Bond.
Vickie White testified that she had known the defendant for about eight years. She said that not more than three days after the murder of Karla Brown had occurred she and her husband, Mark, were visiting during the weekend with Spencer and Roxanne Bond in the kitchen of their house in East Alton when the defendant came in and began to talk about Karla Brown, saying that he had known her when he had gone to "SIU." The witness testified that "Prante had stated that she was murdered and that her body was down in her basement, and she was in a curled up position, and she had teeth marks on her body." When he made the remark about the teeth marks, she said, "[h]e put his arm over his shoulder." She stated further that the defendant had
"said that he had been there that day the same day she was murdered. Prante said that she [sic] was there the same day that she was murdered, and he talked about, you know, her body being in the basement and she was in a curled up position. She had teeth marks on her body, and that's when he pointed over his shoulder. And he he had made the statement that he had to get his story straight and he had to get out of town because the police were looking for him."
The witness stated that the defendant had "said he had to get his story straight with Paul Main because they was [sic] in some trouble and that he had to get out of the State." The defendant said he had been at Karla Brown's house "earlier that day," that she was all right when he left, and that he was supposed to go back to her house. The witness said that she had been walking in and out of the room during the conversation but that she had heard most of it. She testified that newspaper articles concerning the exhumation had brought her attention to the matter. She said she had not read any articles about the murder until she read those concerning the exhumation and had heard about the murder, at first, from the defendant and, later, at work. In 1978, she said, when she had heard the conversation, she was unaware of its significance with respect to the investigation.
Mark White testified that he had known the defendant for about seven years and would see him "[v]ery rarely, maybe three, four times a year." The witness had heard about the murder a day or two after it had occurred. He said that within three days after he had heard about the murder he and his wife were talking in the Bond's kitchen on a weekend when the defendant came by. The defendant brought up the subject of the murder and said of it "that he had been over to [Karla Brown's] house and they were just talking about her; that he knew her, and he was supposed to go back later on in the evening; and I don't know if he ever did or not." The defendant stated that "he was going to have to leave town because of something that had happened, and he was afraid he was going to jail for it." The defendant said that he was going to be questioned because of her murder and that he was afraid he could have been the last one to see her alive. The witness indicated that during the conversation he would leave the kitchen to go to the bathroom and to check on the children as was necessary. He said that in 1978 he attached no significance to the conversation and told no one about it until the police approached him in 1982.
Roxanne Bond testified that she had known the defendant eight or nine years and that he had been "a good friend of ours," coming by their house "every couple of days or so." She had read about the Brown murder in the newspaper and had not heard the defendant's conversation in her home because she was outside with her child. She did, however, once hear him say that he "had to get his story straight."
Spencer Bond testified that he had known the defendant for 9 or 10 years, the two having met at Lewis and Clark Community College. At the time of the murder he usually saw the defendant about once a day, either at his house or the defendant's. The witness first heard about Karla Brown's murder from the defendant on what he recalled as a Friday night, "[a]t the most three days" after the murder occurred. Vickie and Mark White were in the kitchen of his house with him and his wife, Roxanne, when the defendant came over. The defendant said he had been at Paul Main's house "that day" and "had talked to Karla Brown about two or three that afternoon, was supposed to go back and see her because he might have a possible date with her." The defendant stated that he had talked with Karla Brown at her house. The defendant said further that "the girl was in a curled position stuck in a pail of water down in the basement." The witness testified that when the defendant told him that fact, he, that is, the witness, had no idea that that was what had happened. The defendant said that "she had teeth marks on her shoulder where she had been bitten on her left shoulder," gesturing as he made the statement. The defendant said also that the victim had been tied up. The witness stated that the defendant said that on the day of the killing "he was over at Paul Main's house. They were over there getting drunk and getting high. Paul Main had been painting the house next door." The defendant stated that "he had put in a few applications at work; that he had talked to Karla Brown over at her house." Of the police the defendant said that they "were over the place and that they really fowled [sic] it up really bad; that they really didn't know what they were doing; that there was everybody in and around the place even people that shouldn't have been there." The defendant stated that he and "Paul had to get their stories together as to what they were doing that day" for the reason that "they didn't want to get conflicting statements of what their statements were so the police wouldn't be able to crack his alibi." Prior to the victim's death the defendant had mentioned her name "several times" to the witness "within a few days to a few weeks before it happened." The witness first told the police about these statements by the defendant on June 1, 1982, when the police came to talk to him. Prior to his interview by the police he had not talked to Vickie or Mark White about the defendant's statements. At the time he talked with the police the witness said he "didn't think I knew anything" and that before that time he did not realize the significance of the information he had.
Thereafter the witness participated in a wiretap of the defendant conducted by the police on June 2, 1982, and again on June 4, 1982, after the defendant had said he wanted to speak with Spencer Bond again about the conversation of June 2, 1982. In the first taped conversation between the defendant and Spencer Bond, the transcript of which was read to the jury, the defendant said that on the day of the murder he and Paul Main "were gett'in [sic] drunk and high the day, you know, right next door." He said he "didn't even know about it until a few days later in the paper. Then the third day after that an officer wanted to talk to me about it." During the conversation the defendant said, "I never even knew the girl," and, "I didn't even know what her name was until I saw it in the paper." When Bond said to the defendant, "You told me, you were the last one to see her alive or somethin [sic]. That's why you ," the defendant said, "Me and Paul, we saw her putterin' around outside and everything." When Bond mentioned that "[t]here was something about a bucket of water was in there ," adding " a bucket or a pail or something don't remember nothing about that, huh?" the defendant responded, "Didn't pay any attention to that even, not even when it happened, none of my business." Shortly thereafter the defendant said, "About all I can remember of that is, ah, back in the papers were say'in [sic] ah, got put in a trash can."
In the wiretap of June 4, 1982, the defendant initiated conversation about the case and stated that on the day of the murder he was at Paul Main's drinking wine and smoking "a little pot on the front porch." The defendant said he had been there "[a]pproximately eight to ten hours from ten to eleven in the morning till four, five, six, seven in the evening. He gave varying times." According to the witness, the defendant stated that he and Paul had left Main's house that day "a few times to get some more wine and beer." The defendant stated that when Mark Fair arrived home, the defendant saw him
"[A]rrive and come out of the house. Then a bunch of police were there. He said three or four cops were coming around and were scrambling all around the place, and he said the ambulance came; and then when the coroner's wagon came he said, `Wow, the girl must have been dead over there,' and he said it's time for him to get out of there."
The defendant stated further that he had never been over at the victim's house but that he could have talked to her in the walkway up to the house. Asked, "Did he say whether or not he was ever able to gain entry to the house any time that day?" the witness answered, "He said no way; that the police After the police got there there was no way. They sealed the premises off. There's no way he could have even got on the property." The defendant said that he had "never even" known Karla Brown and had seen her only "once or twice." The defendant said that he had first found out about the killing "[a]bout three days after the murder when the police came to talk to him at his parents' house" or else "somebody mentioned it out at his parents' house that there was a girl killed down on Acton."
After the second wiretap of the defendant Spencer Bond spoke with Paul Main from about 1 a.m. until about 3:30 a.m. on June 5, 1982, in a conversation wiretapped by the police. Later that day the ...