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02/20/87 the People of the State of v. John E. Whitehead

February 20, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE

v.

JOHN E. WHITEHEAD, APPELLANT



SUPREME COURT OF ILLINOIS

508 N.E.2d 687, 116 Ill. 2d 425, 108 Ill. Dec. 376 1987.IL.187

Appeal from the Circuit Court of Grundy County, the Hon. Frank X. Yackley, Judge, presiding.

APPELLATE Judges:

JUSTICE MILLER delivered the opinion of the court. JUSTICE SIMON, Concurring in part and Dissenting in part.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MILLER

The defendant, John Whitehead, was convicted of murder and aggravated kidnaping (Ill. Rev. Stat. 1981, ch. 38, pars. 9-1, 10-2) in July 1983, following a jury trial in the circuit court of Grundy County. The defendant waived his right to a jury for purposes of a death penalty hearing, and a sentence of death was imposed by the circuit Judge. The defendant's execution was stayed (87 Ill. 2d R. 609(a)) pending direct review by this court (Ill. Const. 1970, art. VI, sec. 4(b); 103 Ill. 2d R. 603).

Vickie Wrobel, a five-year-old girl who lived with her parents in Joliet, was missing from the family residence during the evening of August 9, 1982. While searching for her, Vickie Wrobel's mother asked the Wrobels' tenant, Esther Harmon, whether she had seen Vickie. Esther Harmon, her daughter, LeAllen Starbuck, and LeAllen's husband, William Starbuck, lived with the defendant in a house adjacent to the Wrobels' tavern and home. On speaking with Vickie Wrobel's mother, Esther Harmon discovered that both the defendant and the Harmon car, which the defendant sometimes used with her permission, were also missing. Local police agencies were notified that the defendant was suspected of stealing Esther Harmon's car and that he might have taken Vickie Wrobel.

Sometime after midnight the following morning, the defendant telephoned the Wrobels' tavern and spoke with LeAllen Starbuck. He told LeAllen that he was calling from Samuel and Jeanine Starbucks' home in Godley; Jeanine is the defendant's sister and is married to William Starbuck's brother. LeAllen advised the defendant to stay at his sister's home, and she then told the police where the defendant was located.

Shortly after LeAllen's call, area police arrived at the Starbuck residence in Godley. The officers saw Esther Harmon's automobile parked in front of the residence, and from outside the car officers observed clothing on the front seat of the car that matched the description of clothing worn by Vickie Wrobel when she disappeared the previous evening. Samuel Starbuck let the officers into his living room, where the defendant was seated. The defendant admitted to being in possession of Esther Harmon's car, and he was arrested for auto theft.

The defendant was questioned by two detectives of the Joliet police department from about 4 a.m. until 6:30 a.m. that day. He was generally responsive, but when questioned concerning the whereabouts or condition of Vickie Wrobel, the defendant made no statements other than "I can't" or "I can't tell you." The interrogation ended when the defendant indicated a desire to consult with an attorney.

An hour or so later, at approximately 7:30 a.m. on August 10, 1982, railroad workers discovered a naked body, later identified as the body of Vickie Wrobel, floating in the Mazon River. An autopsy revealed that the victim had been sexually molested and had been killed by strangulation and drowning. Physical evidence recovered alongside the river included articles of the victim's clothing and a shirt later identified as the shirt worn by the defendant on the evening of August 9. In the shirt pocket there was a lottery ticket with writing that a handwriting analyst identified as the defendant's.

Additional physical evidence implicating the defendant was found in Esther Harmon's automobile. Some of the victim's clothing was on the front seat. Also found was a plastic drinking cup similar to that given Vickie Wrobel by the Wrobels' bartender shortly before the girl disappeared. The armrest and passenger door panel were stained with a fluid that was determined to have a chemical composition consistent with the nonalcoholic "cocktail" served to Vickie Wrobel in the plastic cup. The floormats in Esther Harmon's car were damp, and vegetation like that growing along the Mazon River was also found on the floor area in front of the driver's seat. Other evidence produced at trial placed the defendant in the general vicinity where Vickie Wrobel was playing immediately prior to her apparent kidnaping.

While in the custody of the Joliet police department on the 10th and 11th of August, the defendant made eight statements to investigating officers in which he admitted kidnaping, sexually assaulting, and killing Vickie Wrobel. His description of how he sexually abused the victim was consistent with the autopsy report, and the defendant's claim of having forced Vickie Wrobel to drink beer was also substantiated by the post-mortem examination. The defendant contends that those confessions resulted from the officers' failure to follow procedural safeguards required by Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, and Edwards v. Arizona (1981), 451 U.S. 477, 68 L. Ed. 2d 378, 101 S. Ct. 1880, to protect suspects' fifth and fourteenth amendment rights (U.S. Const., amends. V, XIV). The substance of the defendant's argument on appeal is that his confessions were obtained only after the police reinitiated interrogation, in violation of Edwards, following the defendant's request to consult with counsel. Defendant argues that reinitiation occurred when a confrontation between the defendant and LeAllen Starbuck was orchestrated by the police. The State contends that the defendant reinitiated the interrogation by making an unprompted statement to Detective Albritton following a conversation the defendant had with LeAllen Starbuck. The admissibility of the defendant's statement thus turns on the characterization of his conversation with LeAllen: if the conversation is cast as a form of police interrogation, the statements should have been excluded; otherwise, the defendant's statements were properly admitted.

LeAllen Starbuck, defendant's sister-in-law, was allowed to visit with the defendant within hours of his request to see an attorney and before an attorney had been consulted. The police had not sought out LeAllen's cooperation; in fact, Detective Albritton of the Joliet police department refused her original request to speak with the defendant shortly after the defendant had invoked his right to counsel. Nonetheless, LeAllen approached Detective Albritton at the Wrobel residence and again asked to speak with her brother-in-law. Albritton told LeAllen to meet him at the police station, and when she arrived Albritton asked the defendant whether he wanted a visitor. Seeing LeAllen outside the room, the defendant indicated that he did, and Albritton left LeAllen so that she could speak with the defendant privately.

Relying on People v. Baugh (1974), 19 Ill. App. 3d 448, the defendant argues that LeAllen became a police "instrumentality" who funneled information to the authorities because her interests were so closely aligned with theirs. In Baugh, the appellate court determined that a suspect was subjected to custodial interrogation when the victim's attorney questioned the suspect in the presence of police officers, but Baugh is clearly distinguishable from the facts of this case. LeAllen's interests were not aligned with those of the police authorities because she wanted the defendant to confide in her that he was innocent of kidnaping Vickie Wrobel. Although LeAllen told Detective Albritton that if the defendant would speak with anybody it would be with his sister or with her, she plainly did not have an identity of interest with the police because, as LeAllen testified at the hearing on defendant's motion to suppress, she wanted "to hear that he didn't do it; to hear that it wasn't true." The case is further distinguished from Baugh by the absence of police officers during LeAllen's conversation with the defendant. Cf. People v. Hawkins (1972), 53 Ill. 2d 181.

Moreover, there was no evidence that LeAllen intended either to persuade the defendant to give a statement to the police regarding the missing child or to pass along to the police any statements the defendant might make to her. Nor did LeAllen become an unwitting instrument of the police who exploited her ignorance of Vickie Wrobel's death. Contrary to the defendant's representations in this appeal the record shows that, at the time LeAllen spoke with the defendant on the morning of his arrest, the body found by the police had not been identified as the body of Vickie Wrobel but LeAllen was aware that a body had already been found. We therefore do not consider LeAllen to have been a police agent or instrumentality during her conversation with the defendant.

In light of LeAllen's statement to Albritton that the defendant would speak to her or Jeanine, the defendant argues that the police should have known that the defendant was especially vulnerable to an appeal from his family; therefore, the defendant believes, the police engaged in a course of conduct that they should have realized was "reasonably likely to elicit an incriminating response from the suspect." (Rhode Island v. Innis (1980), 446 U.S. 291, 301, 64 L. Ed. 2d 297, 308, 100 S. Ct. 1682, 1689-90.) We do not believe, however, that LeAllen's conversation with the defendant was the sort of police conduct that Miranda perceived as undermining the privilege against self-incrimination. Miranda requires the use of procedural safeguards because of the subtle pressures that may be exerted through "incommunicado interrogation of individuals in a police-dominated atmosphere." (Miranda v. Arizona (1966), 384 U.S. 436, 445, 16 L. Ed. 2d 694, 707, 86 S. Ct. 1602, 1612.) A defendant's voluntary decision to see and speak with a close relative -- the defendant testified that he felt closer to LeAllen Starbuck than to his sister Jeanine -- does not activate "the central concerns of Miranda " (United States ex rel. Church v. DeRobertis (7th Cir. 1985), 771 F.2d 1015, 1019), for private Discussions with family members while in custody do not "reflect a measure of compulsion above and beyond that inherent in custody itself." (Rhode Island v. Innis (1980), 446 U.S. 291, 300, 64 L. Ed. 2d 297, 307, 100 S. Ct. 1682, 1689.) In deciding precisely this question in United States ex rel. Church v. DeRobertis, the seventh circuit noted that " Miranda itself was a response to subtle (and not so subtle) police practices that might undercut the suspect's will and thus amount to 'compulsion' to testify against oneself." (771 F.2d 1015, 1019.) Because the decision by Joliet officers to allow the defendant to visit with a close family member did not contain an element of police trickery or overbearing, their conduct did not offend defendant's fifth and fourteenth amendment rights. See Arizona v. Mauro (U.S. May 4, 1987), 41 Crim. L. Rptr. 3081.

Adopting the defendant's position would tend to exacerbate the coercive atmosphere of the police station because it would forbid visitation by a suspect's relatives during the period before the suspect's meeting with counsel. The refusal to let relatives visit a suspect in custody was one of the police practices that the Miranda court identified as vitiating the fifth amendment privilege (Miranda v. Arizona (1966), 384 U.S. 436, 453-55, 16 L. Ed. 2d 694, 711-12, 86 S. Ct. 1602, 1617); to hold now that the prophylactic aspects of Miranda require that police engage in a form of conduct that the Supreme Court condemned would turn Miranda 's protections around. Support from family members is likely to alleviate the coercive elements of custodial interrogation and should not be discouraged, but regardless of the impact that genuine family contact may have in a particular case, the private relationship among family members is a personal matter. So long as police have not incited or coached family members to prompt a confession, it is not a proper area for judicial intrusion to perpetuate the incommunicado nature of police custody.

The defendant next argues that the trial court erroneously denied a defense motion for a change of venue that alleged that pretrial publicity would make it impossible to impanel a fair and unbiased jury in Grundy County. Citing a number of articles published in the Morris Daily Herald, the defendant claims that the jury pool in Grundy County was exposed to inflammatory and prejudicial information -- such as the defendant's possible involvement in another missing-child case and his own request for the death penalty in this case -- that jurors would be unable to purge from their memories during trial and deliberation.

A change of venue is required only when "there are reasonable grounds to believe that the prejudice alleged actually exists and that by reason of the prejudice there is reasonable apprehension that the accused cannot receive a fair and impartial trial." (People v. Berry (1967), 37 Ill. 2d 329, 331.) This court has previously held that it will not review the trial court's decision denying a motion for a change of venue but will instead examine the proceedings at trial to determine "whether upon the record as a whole the defendantreceived a trial before a fair and impartial jury." (People v. Yonder (1969), 44 I Ill. 2d 376, 388.) In examining the partiality of jurors, we are mindful that jurors need not be "totally ignorant of the facts and issues involved." Irvin v. Dowd (1961), 366 U.S. 717, 722, 6 L. Ed. 2d 751, 756, 81 S. Ct. 1639, 1642.

Having examined the voir dire proceedings in this case and the text of newspaper articles cited by the defendant, we cannot say that the defendant was deprived of a fair trial because of pretrial reports in the Morris Daily Herald. Three jurors did not read the Morris newspaper, one juror did not read beyond the headlines, another had not read of the case at all, and three other jurors testified that they had read no stories regarding the case during the months immediately preceding trial. All the jurors testified that they had formed no fixed opinions about the defendant's guilt, and none of the jurors claimed to remember the substance of the defendant's statements. Because the jurors did not indicate familiarity with any prejudicial information regarding the case -- indeed, there was no indication that jurors knew any facts at all -- this case is clearly distinguishable from People v. Taylor (1984), 101 Ill. 2d 377, where jurors had learned through pretrial press reports of highly prejudicial information regarding polygraph examinations.

The Constitution requires that jurors be able to lay aside their opinions and decide the case on the facts presented at trial. (Irvin v. Dowd (1961), 366 U.S. 717, 723, 6 L. Ed. 2d 751, 756, 81 S. Ct. 1639, 1643.) The defendant argues that a trial court may not rely solely on jurors' claims that their personal opinions will be set aside and news accounts disregarded. As previously noted, however, voir dire revealed that the impaneled jurors had neither opinions regarding the defendant's guilt nor specific knowledge of prejudicial information about the crime or the contents of the defendant's inculpatory statements. Therefore, even if jurors may in some instances be unable to set aside preconceived opinions of guilt or knowledge of facts even though they sincerely believe they may (see People v. Taylor (1984), 101 Ill. 2d 377, 393), that danger cannot be of concern in this case.

Furthermore, an examination of the articles printed in the Morris Daily Herald does not reveal a hysterical or prejudgmental interest by the news media. Emotionally charged words were not used -- the defendant was reported to have made "statements," not "confessions" -- and he has identified only one article regarding the case that was published during the two-month period preceding voir dire. We are unable to conclude that "the minds of jurors or potential jurors were poisoned" (Irvin v. Dowd (1961), 366 U.S. 717, 730, 6 L. Ed. 2d 751, 761, 81 S. Ct. 1639, 1647 (Frankfurter, J., Concurring)) by the newspaper accounts of the defendant's prosecution.

Finally, we note that defense counsel themselves did not regard the impaneled jurors as unfair or biased. They did not challenge for cause a single juror, later impaneled, on the grounds of fixed opinions or knowledge of prejudicial information. (People v. Gendron (1968), 41 Ill. 2d 351, 356.) Considering the entire record, we do not believe that the defendant has established that the denial of his motion for a change of venue resulted in his conviction by a biased jury or after an unfair trial.

The defendant claims that the trial court erroneously decided that testimony regarding his prior crimes could be elicited on the State's examination of two defense witnesses. A defense motion in limine sought to limit the State's cross-examination of Dr. Marvin Ziporyn, defendant's psychiatric expert, to preclude questions regarding the defendant's admissions of previous knife attacks on young girls. The defendant had made those admissions during the course of psychiatric examinations in 1975 while being prosecuted for attempted rape and aggravated battery. A second defense motion in limine attempted to prevent the prosecution from using the 1975 admissions to discredit the defendant if he testified at trial. Both motions were denied by the trial Judge, who indicated that the State would be afforded an opportunity to raise the earlier admissions of knife attacks on young girls depending upon the testimony actually elicited on direct examination of Dr. Ziporyn and the defendant. The trial court also declined to accept the defendant's offer of proof that would have set out the substance of his direct testimony so that the court could determine in limine the scope of appropriate cross-examination. The defendant claims that his insanity defense was dropped and that he did not testify at trial because of the trial court's rulings on these motions.

Because neither Dr. Ziporyn nor the defendant testified, this court cannot determine whether the trial court would have erroneously permitted the State to raise the substance of defendant's 1975 statements in cross-examination. The defendant claims that Dr. Ziporyn was not called because evidence of prior crimes would have been allowed. The State responds to that claim by saying that the doctor was not called because the State would impeach his testimony with evidence of previous false claims of amnesia by the defendant. The record supports both explanations, demonstrating the difficulty of reviewing hypothetical cross-examination. This court should not speculate what the substance of Dr. Ziporyn's and the defendant's testimony on direct examination would have been or what the prosecution would have asked during cross-examination of those witnesses, and it follows that no decision on the appropriate scope of cross-examination can be had on appeal of this case. Counsel must stand on their objections and call the witnesses, thus opening the possibility that an erroneous decision on the scope of examination might occur and require review by a reviewing court, or forgo calling the witnesses and adopt an alternative strategy. But defense counsel may not have it both ways by altering their trial strategy to make the best of the trial court's order, depriving the reviewing court of a reviewable record, and still maintain that the order was erroneously entered. See Casey v. Baseden (1986), 111 Ill. 2d 341, 349.

It is argued that the trial court's refusal to decide the scope of cross-examination in limine, or after an offer of proof on the substance of the defendant's direct testimony, denied the defendant an opportunity to present evidence in his own behalf. (Washington v. Texas (1967), 388 U.S. 14, 18 L. Ed. 2d 1019, 87 S. Ct. 1920.) In Luce v. United States (1984), 469 U.S. 38, 83 L. Ed. 2d 443, 105 S. Ct. 460, however, the Supreme Court also declined to review a trial court's refusal to limit the government's cross-examination of the defendant with an order in limine. The Supreme Court gave two reasons for its decision that a defendant must actually testify in order to preserve the claimed error for review:

"On a record such as here, it would be a matter of conjecture whether the [trial c]ourt would have allowed the Government to attack [defendant's] credibility at trial by means of the prior conviction. . . . [And] the reviewing court also has no way of knowing whether the Government would have sought to impeach with the prior conviction." (469 U.S. 38, 42, 83 L. Ed. 2d 443, 448, 105 S. Ct. 460, 463.)

The Supreme Court also rejected the argument that a trial court must accept an offer of proof and advise the defendant whether the offered testimony would open the door for cross-examination to which the defendant objects, because "his trial testimony could, for any number of reasons, differ from the proffer." (469 U.S. 38, 41 n.5, 83 L. Ed. 2d 443, 447 n.5, 105 S. Ct. 460, 463 n.5.) The logic of Luce applies to the testimony offered by both the defendant and other defense witnesses. United States v. Dimatteo (11th Cir. 1985), 759 F.2d 831.

The defendant also claims to have been denied a fair trial by the prosecutors' allegedly improper closing arguments. Three specific claims are made in this respect. The defendant claims first that prosecutors impermissibly highlighted the defendant's failure to testify at trial. The defendant's counsel sought to reduce the inculpatory impact of the defendant's confessions by arguing that the confessions were coerced and had been made only to appease the defendant's interrogators. In closing argument, the State argued that the jury should not "listen to facts that have not been introduced in evidence . . .. Unless that witness has been sworn up there on the witness stand you will not have had the opportunity to observe the demeanor of the witness . . .." Defense counsel interrupted, objecting that the prosecutor was "implying that there are witnesses somewhere," and the court sustained the objection. Later, after defense counsel had suggested in closing argument that the defendant's shirt had been planted in the river by some other party, the State responded:

"What do you have before you? Unrebutted, undenied, uncontradicted that the defendant both in a tape recorded statement and a written statement admitted drowning Vicki[e] Wrobel. . . . Not one piece of evidence put on by either party contradicts that.

What do you have that is uncontradicted, undenied, unrebutted? That the shirt was found in the water on the 12th [of August], in a few feet of water out in the very river where Vicki[e] Wrobel was found, and it had hairs, head hairs, both of Vicki[e] Wrobel and of the defendant, John Whitehead.

You have evidence, undenied, unrebutted, uncontradicted, that these 2 pieces of clothing [belonging to the victim] were found in a car that John Whitehead had taken from the garage area that belonged to Esther Harmon that were not clothes that Esther Harmon put in there." (Emphasis added.)

Second, the defendant argues that the prosecutors improperly made an issue of defense counsel's sincerity. Counsel raised two defenses, that the defendant was too intoxicated to form the necessary mens rea of the offenses charged and that a person other than the defendant committed the crimes at issue, but the prosecutors argued that counsel did not believe their own defenses. "Finally," the State argued, "they present to you a defense of intoxication, but it is as little believed by them as it should be by you." Furthermore, the defendant now contends that the prosecutors' closing remarks purposefully misled the jury by suggesting that defendant's theories of intoxication and a guilty third party were sufficient in law only if the jury believed both defenses. The State argued in rebuttal that the "defense ...


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