Appeal from the Circuit Court of Will County, the Hon. Michael
A. Orenic, Judge, presiding.
CHIEF JUSTICE CLARK DELIVERED THE OPINION OF THE COURT:
Rehearing denied December 1, 1986.
Following a jury trial in the circuit court of Iroquois County, the defendant, Milton Johnson, was found guilty of the murder of Anthony Hackett (Ill. Rev. Stat. 1983, ch. 38, pars. 9-1(a)(1), (a)(3)) and the aggravated kidnaping (Ill. Rev. Stat. 1983, ch. 38, pars. 10-2(a)(3), (a)(5)), deviate sexual assault (Ill. Rev. Stat. 1983, ch. 38, par. 11-3), rape (Ill. Rev. Stat. 1983, ch. 38, par. 11-1(a)), and attempted murder of Patricia Gail Payne (Ill. Rev. Stat. 1983, ch. 38, pars. 8-4(a), 9-1(a)). Defendant waived his right to a jury at the death penalty hearing. The trial court found that the necessary aggravating factors existed, and that there were no mitigating factors sufficient to preclude imposition of the death penalty. The court thereupon sentenced defendant to death for the murder of Hackett and to concurrent prison terms of 40 years for rape, deviate sexual assault, and attempted murder. The death sentence was stayed (87 Ill.2d R. 609(a)), pending direct appeal to this court (Ill. Const. 1970, art. VI, sec. 4(b); 87 Ill.2d R. 603).
As a threshold matter, we consider defendant's contention that he was denied his sixth amendment right to an impartial jury drawn from a fair cross-section of the community when the trial court, in granting defendant's motion for a change of venue, moved the place of trial from Will to Iroquois County.
Prior to trial, defendant moved for a change of venue from the circuit court of Will County, citing pretrial publicity within that county as the reason necessitating the transfer. In transferring the case to Iroquois County, the trial court noted that because Iroquois County is buffered from Will and Cook counties by Kankakee County, the local and Chicago news media would least likely have an impact in Iroquois County. The trial judge further noted that Iroquois County is one of three counties in the Twelfth Judicial Circuit over which he presided.
Thereafter, defendant filed a second motion to change the place of trial from Iroquois County to Cook County, alleging a lack of racial diversity within Iroquois County. In arguing the motion, defense counsel stated that the population of Iroquois County was 95.5% white, and that approximately 10% of Will County was black. The trial judge, in denying the motion, found that Iroquois County was the closest and most convenient forum unaffected by pretrial publicity, and stated that if it appeared during voir dire that an impartial jury could not be impaneled, he would reconsider the denial of defendant's motion.
Defendant initially moved for a change of venue, alleging that he could not be tried by an impartial jury drawn from a fair cross-section of the community living in Will County due to exposure to pretrial publicity. Having prevailed on his first motion for a change of venue, defendant cannot now be heard to complain that distinctive groups in Will County were not proportionately reflected on the venire in Iroquois County, which the trial court determined was the closest and most convenient forum least likely to be affected by pretrial publicity.
This is not a case involving the systematic exclusion of "a `distinctive' group in the community" (Duren v. Missouri (1979), 439 U.S. 357, 364, 58 L.Ed.2d 579, 587, 99 S.Ct. 664, 668), which would trigger a fair-cross-section inquiry under the standard recently announced by the Supreme Court in Batson v. Kentucky (1986), 476 U.S. 79, 90 L.Ed.2d 69, 106 S.Ct. 1712. Nor are we familiar with any constitutional right allowing a defendant to select his own place of trial. (See People v. Gacy (1984), 103 Ill.2d 1, 43.) To require that the venire of the transferee county proportionately mirror any distinctive groups found in the originating county would either saddle our judiciary with an onerous, if not impossible, task or effectively grant defendants a heretofore unrecognized right to choose their place of trial.
Defendant concedes that the allowance of a motion for a change of venue lies within the sound discretion of the trial court. Indeed, our statute provides that if, upon motion, the trial court determines that a defendant cannot receive a fair trial, "it shall transfer the cause to the circuit court in any county where a fair trial may be had." (Emphasis added.) (Ill. Rev. Stat. 1983, ch. 38, par. 114-6(c).) Without a showing that anything but an impartial jury was impaneled in the present case, we find no basis on which to disturb the trial court's well-reasoned and proper exercise of discretion in selecting Iroquois County as the place of trial.
At trial, testimony from Patricia Gail Payne established that on July 16, 1983, she and her boyfriend, Anthony Hackett, left their homes in Emden, Illinois, and spent the afternoon and evening at Great America Amusement Park (Great America) in Gurnee, Illinois. While there, Hackett purchased a stuffed doll depicting a cartoon character popularly known as the Tasmanian Devil. Hackett placed the sales receipt for the doll in his wallet. At approximately 10 p.m., the two left Great America in Hackett's car. On their way home the pair took a wrong turn and found themselves in Chicago. After reestablishing the proper direction, Hackett and Payne drove for another 45 minutes south on Interstate 55 before they pulled off onto the shoulder of the interstate to sleep. Hackett slept on the front seat, while Payne slept on the back.
Shortly after 1:30 a.m., Payne was awakened by a tapping sound on the passenger-side window, followed by gunshots which struck Hackett and the sound of glass breaking. The passenger door was opened and Payne was ordered to hand over Hackett's wallet, watch, and her purse. As she complied, Payne noted that the assailant was a black man wearing a light- and dark-blue flannel shirt. Payne was then ordered to get out of the car and "crawl on her belly" to a pickup truck parked approximately 10 feet away. When Payne reached the truck she was told to get inside, to stay on the floor, and to keep her eyes closed. However, Payne was able to steal quick glances of the assailant's face after he climbed into the driver's side of the pickup truck.
Once the truck was moving, Payne was directed to get on the seat. The assailant inserted his fingers in her vagina and commanded her to move back and forth. After 10 minutes Payne's assailant ordered, and then forced, her to perform oral sex. He then pulled off the interstate and stopped the truck near a white building where Payne could see many highway lights and hear voices. The assailant spoke briefly to someone and then raped Payne.
During the rape Payne was taunted by her assailant, who asked why she was crying and had she not engaged in intercourse before with her boyfriend. Her assailant then resumed driving and told Payne that it was 4:30 a.m. A short time later he again pulled off the road and stopped the pickup truck. Payne was gagged and blindfolded. Her assailant once again started to drive, only to pull off onto the shoulder of the highway after about 10 minutes. Payne was then stabbed once in the chest and she lost consciousness.
At approximately 5:30 a.m., a passing motorist found Payne in a grassy area in the median along Illinois Route 53 near Wilmington, Illinois. She was subsequently taken to St. Joseph's Hospital in Joliet, Illinois. Dr. Clyde Dawson testified that upon Payne's arrival at the hospital in the early morning hours of July 17, 1983, she had no pulse or blood pressure. Dr. Dawson performed surgery to repair a stab wound to Payne's left chest and prescribed a pain killer and sleep-inducing medication, a combination of drugs which he testified would make a person "doubly drowsy."
John Meduga, special agent with the Illinois Department of Law Enforcement, testified that he met with Payne in the emergency room at 7:22 a.m., on July 17. Because of Payne's condition, she was able only to respond to Agent Meduga's questions with a simple yes or no, or a shake of her head. Payne's responses indicated that her assailant was a black male who she believed was in his mid-20s, 6 feet to 6 feet 2 inches in height, medium to heavy build with a pot belly, no observable facial hair, and a strong body odor; he was wearing a blue-plaid flannel shirt, blue jeans, low-cut gym shoes, and was armed with a shiny revolver that had a white handle. Agent Meduga also interviewed Payne at two other times later that day. At each of their three meetings, Payne stated that she would be able to recognize her assailant's low growly voice and strong body odor.
The car in which Payne and Hackett had traveled was found by police parked on the shoulder of Interstate 55. Hackett's body was on the front seat. An autopsy revealed that he had been shot five times. Two of the bullets recovered were forwarded to State evidence technicians for processing. Reddish-brown fibers were found on the floor of Hackett's car, on the grassy shoulder of the interstate near the right front passenger door, and in the grassy area adjacent to Illinois Route 53 where Payne was found by the motorist.
On July 25, 1983, eight days after the occurrence, Payne viewed approximately 1,500 photographs and picked out 42 photographs of persons with facial characteristics similar to her assailant, 34 of whom had a beard, moustache, or both. The record does not reveal whether defendant's photograph was among those Payne viewed on July 25. On September 6, Payne looked through another group of photographs. There were 137 photographs in a single stack, including one of defendant. Payne set aside four photographs of persons having a beard, moustache or both, as having facial characteristics similar to her assailant; defendant's photograph was not among the four. At trial Payne could not recall whether she had seen defendant's photograph among those in the stack.
During the summer of 1983, the defendant lived at the home of his stepfather, Sam Myers, with his mother, Dolly Myers, and his brother, James Johnson. On September 12, 1983, defendant was questioned by special agents with the Illinois Division of Criminal Investigations regarding the use of his stepfather's black 1977 Chevrolet Scottsdale pickup truck, which was parked outside the Myers residence at that time. In mid or late September, Sam Myers brought the pickup truck to the home of Ernest Ulmer in Lockport, Illinois, to have some rust repaired and the truck repainted black. Due to illness, Ulmer was unable to work on the truck, which was stored in his garage. In either October or November 1983, and once before Christmas, Myers inquired about the truck, saying that he was in no rush for it. The truck remained in the Ulmer garage until March 9, 1984, when it was seized by police after the following developments.
The investigation into Hackett's murder and the assault, rape, and attempted murder of Payne stood at a standstill until February 28, 1984, when Ann Shoemaker telephoned the Will County sheriff's office. Shoemaker spoke with Charles Malinkowski, a Will County deputy sheriff, and informed him of an incident which occurred on July 9, 1983, that prompted her to record on a slip of paper license plate number 889930B, which belonged to the Myers pickup truck.
Over defense counsel's objection at trial, Shoemaker testified that during the late evening hours on July 9, 1983, she and a girlfriend were walking on Bruce Road in Will County when a dark pickup truck with a cabin enclosure over the flatbed portion passed them, turned around at the corner, and passed them again. After several more such passes, the girls became frightened and returned to a party they had been at earlier. After telling everyone about the truck, Shoemaker and her friend got into Shoemaker's car and followed the truck. On cross-examination, Shoemaker explained that they wanted to find out who the driver of the truck was because they believed that he was someone they knew who was playing a joke on them.
The two followed the truck for over an hour, during which time Shoemaker wrote down the aforementioned license number along with the words "blue or black Chevy." Several times they pulled into a driveway, shut off the car lights, and waited. Each time, the truck would turn around and come back. Finally, Shoemaker testified that, at one point, they saw the truck pulled over to the side of the road under a street light with its hood up. The driver, who was standing near the passenger side of the truck, was a black man, approximately 5 feet 9 inches in height, weighed approximately 200 pounds, and was wearing what Shoemaker believed was a red-flannel shirt. The record does not indicate what Shoemaker did after she observed the driver of the truck.
Thereafter, on March 6, 1984, Shoemaker met with Deputy Malinkowski and Investigator James Fetzner of the Will County sheriff's police, and tendered to them the slip of paper bearing the license number of the Myers truck. That same day, Agent Meduga visited Payne at her home, where he showed her an array of five photographs. Of the five photographs, defendant's was the only one among those submitted to Payne on September 6, 1983, at which time she did not identify his photograph. The record does not disclose whether any of the other four photographs were among those submitted to Payne on July 25, 1983.
After examining defendant's photograph for several minutes, Payne tentatively identified the defendant as her assailant, stating that he looked "pretty right" and adding "my gut feeling is it's him but I can't be sure his side view looks right and his hairline seems right." Payne testified that she told Agent Meduga that she could be more certain in her identification if she heard the individual's voice.
On March 9, 1984, Payne viewed a six-person lineup at the Will County courthouse. The six participants were black males, ranging from 5 feet 8 inches to 6 feet 2 inches in height, and weighed from 180 to 250 pounds. Defendant was 5 feet 9 inches in height, and weighed 240 pounds at the time of the lineup. Because defendant had a moustache and goatee-type beard at the time and police were uncertain as to whether Payne had observed ...