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02/20/87 the People of the State of v. Edgar Christiansen

February 20, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE

v.

EDGAR CHRISTIANSEN, APPELLANT



SUPREME COURT OF ILLINOIS

506 N.E.2d 1253, 116 Ill. 2d 96, 107 Ill. Dec. 198 1987.IL.196

Appeal from the Circuit Court of Cook County, the Hon. Leonard R. Grazian, Judge, presiding.

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MORAN

Defendant, Edgar Christiansen, was indicted by a Cook County grand jury for the armed robbery of Lawrence Berry and the murders of Laura Steinke and Mousa Musleh (Mousa). Defendant was charged with the following offenses in connection with the Berry incident: armed robbery (Ill. Rev. Stat. 1981, ch. 38, par. 18-2); unlawful restraint (Ill. Rev. Stat. 1981, ch. 38, par. 10-3); theft (Ill. Rev. Stat. 1981, ch. 38, par. 16-1(a)(1)); theft exceeding $300 (Ill. Rev. Stat. 1981, ch. 38, pars. 16-1(a)(1), (e)(3)); armed violence predicated on armed robbery, armed violence predicated on unlawful restraint and armed violence predicated on residential burglary (Ill. Rev. Stat. 1981, ch. 38, par. 33A-2). Defendant was charged as follows in connection with the deaths of Steinke and Mousa: intentional murder, knowing murder, and felony murder based on armed robbery (Ill. Rev. Stat. 1981, ch. 38, pars. 9-1(a)(1), (a)(2), (a)(3), respectively); armed robbery (Ill. Rev. Stat. 1981, ch. 38, par. 18-2); armed violence premised on knowing murder, armed violence premised on felony murder, and armed violence premised on armed robbery (Ill. Rev. Stat. 1981, ch. 38, par. 33A-2). Also in connection with the shooting death of Mousa, the defendant was charged with unlawful restraint (Ill. Rev. Stat. 1981, ch. 38, par. 10-3) and armed violence predicated on unlawful restraint (Ill. Rev. Stat. 1981, ch. 38, par. 33A-2). Because three other persons were present at the time Mousa was killed, defendant was charged with the following additional counts: unlawful restraint of Samih Alkossa, Chris Churney, and Issa Musleh (Issa), the victim's brother (Ill. Rev. Stat. 1981, ch. 38, par. 10-3), and armed violence based on the unlawful restraint of Alkossa, Churney, and Issa (Ill. Rev. Stat. 1981, ch. 38, par. 33A-2).

Defendant pleaded not guilty by reason of insanity and waived his right to a jury trial on the issue of his guilt or innocence. The indictments were consolidated for trial, at the Conclusion of which the court found that the defendant was not insane or mentally ill at the time these offenses were committed, thereby precluding a finding of not guilty by reason of insanity or guilty but mentally ill. The court then made the following findings. With respect to the armed robbery of Berry, the court found the defendant guilty as follows: guilty of armed robbery; guilty of unlawful restraint which was merged into the conviction for armed robbery. Defendant was found guilty on both counts of theft. The court found the defendant guilty of two counts of armed violence predicated respectively on armed robbery and unlawful restraint, merging these convictions with the prior conviction for armed robbery. The court found the defendant not guilty of armed violence predicated on residential burglary. With respect to the shooting death of Steinke, the court found the defendant guilty of intentional, knowing, and felony murder. The court also found the defendant guilty of armed robbery. There was a finding of guilty on two counts of armed violence premised on knowing murder and felony murder which were merged into the convictions for murder. The court further found the defendant guilty of armed violence based on armed robbery, merging this conviction with the conviction for armed robbery.

The court also found as follows with regard to the shooting death of Mousa: guilty of intentional, knowing, and felony murder; guilty of armed robbery; guilty of unlawful restraint, which was merged into the conviction for armed robbery; guilty on two counts of armed violence based on knowing murder and felony murder, which were merged into the convictions for murder; guilty of armed violence based on armed robbery, which was merged with the conviction for armed robbery. The court made no finding on the charge of armed violence based on unlawful restraint. The court further found the defendant guilty of the unlawful restraint of Alkossa, Churney, and Issa, as well as guilty of armed violence based on the unlawful restraint of Alkossa, Churney, and Issa.

The State indicated its decision to seek the death penalty for the murder convictions pursuant to section 9-1(d) of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 9-1(d)). The court accepted defendant's waiver of the sentencing jury (Ill. Rev. Stat. 1981, ch. 38, par. 9-1(d)(3)) and proceeded with the death penalty hearing. At the Conclusion of the hearing, the court found that defendant was born March 27, 1937, and found beyond a reasonable doubt that he was 18 years of age or older at the time of the murders. The court also found beyond a reasonable doubt the existence of two statutory aggravating factors: the defendant had been convicted of two murders under the Illinois murder provision (Ill. Rev. Stat. 1981, ch. 38, par. 9-1(b)(3)) and the defendant actually killed the two victims in the course of two separate felonies, armed robbery (Ill. Rev. Stat. 1981, ch. 38, par. 9-1(b)(6)). The court then proceeded to a hearing in aggravation and mitigation (Ill. Rev. Stat. 1981, ch. 38, par. 9-1(c)). At the Conclusion of the hearing, the court found that there were "no mitigating factors sufficient to preclude the imposition of the sentence of death" (Ill. Rev. Stat. 1981, ch. 38, par. 9-1(h)). The court, therefore, sentenced the defendant to death.

The court proceeded to impose sentence on the remaining convictions as follows: for the armed robbery of Berry, defendant was sentenced to 30 years' imprisonment and three years' mandatory supervised release. In addition, defendant was sentenced to two concurrent terms of five years' imprisonment on the two convictions for theft. With respect to the Steinke incident, defendant was sentenced to 30 years' imprisonment plus three years mandatory supervised release for armed robbery, to run concurrently with the sentence for the armed robbery of Berry. As to the Mousa incident, defendant again was sentenced to a concurrent term of 30 years' imprisonment plus three years mandatory supervised release. On the convictions for unlawful restraint and armed violence based on the unlawful restraint of Alkossa, Churney, and Issa, defendant was sentenced to 30 years' imprisonment plus three years supervised mandatory release, to run concurrently to the prior sentences for the armed robberies of Berry, Steinke, and Mousa. Because the death penalty was imposed, the cause comes before this court for direct review as provided by the Illinois Constitution of 1970 (Ill. Const. 1970, art. VI, sec. 4(b)) and Supreme Court Rule 603 (87 Ill. 2d R. 603).

We summarize the facts relative to each indictment as follows. With regard to the armed robbery of Berry, it was stipulated that, if Berry were to testify, he would state that he returned to his apartment on the afternoon of April 20, 1981, and found the defendant inside; that defendant was armed with a handgun; that defendant took $51 in cash and some gold chains from him; that he also took a .357 Smith and Wesson magnum and a box of .38-caliber bullets, a stereo, and a blue suitcase. Further, it was stipulated that Berry and the defendant each drank a beer while the defendant was deciding what to do with Berry; that defendant directed Berry to tie his own feet; that he then tied Berry's hands together and tied them to a radiator. By further stipulation, Berry would have testified that defendant stated he would call the police to release Berry and that Berry was to tell the police that he was robbed by a black male. Additionally, it was stipulated that the defendant had his face covered during the robbery; that Berry viewed a lineup on April 23 and made an identification of the defendant after he requested that the defendant say "what am I going to do with you." The parties also stipulated that a consent search of defendant's apartment produced a stereo, a blue suitcase, and a box of .38-caliber bullets.

The parties also stipulated to the facts surrounding the shooting death of Steinke, an employee of a store called The Alley. Pursuant to the stipulation, Fernando Carballo would state, if called to testify, that he picked the defendant out of a lineup and identified him as the person he saw leaving The Alley on April 21, 1982. It was stipulated that the body of Steinke was found on April 21; that Steinke had been shot twice in the head; that these wounds were the cause of death. Additionally, it was stipulated that Sergeant Smith, firearms expert for the city of Chicago police department, if called to testify, would state that on April 22 he performed tests establishing that the bullets which killed Steinke were fired from the .357 Smith and Wesson magnum .38-caliber handgun stolen from Berry and recovered from the defendant at the time of his arrest. By further stipulation, it was established that approximately $200 was missing from the cash register of The Alley, as well as some posters and lighters. Finally, it was stipulated that two posters and two lighters, identified as being property of The Alley, were uncovered during a consent search of defendant's apartment on April 23.

Live testimony during the State's case in chief established the facts surrounding the shooting death of Mousa. First to testify was Issa, the victim's brother. He stated that the defendant entered his grocery store at closing time, 8 p.m., on April 22, 1982, took a grocery cart, placed a briefcase in the cart, and then proceeded to pick up various items which were also placed in the cart. Issa said that he approached the defendant and asked him to hurry so that he could close the store. He was within three feet of the defendant and testified that he could not smell the odor of alcohol. Issa then testified that, while defendant was standing at the checkout counter, he called to Issa. Issa said that he responded to defendant's call by approaching the counter. As he neared the defendant, Issa saw him pull a handgun from his briefcase, cock it, and point it at him. Issa noticed that defendant was wearing gloves. Continuing, he testified that defendant told him to move behind the counter and stand beside Mousa, the victim, and another employee, Alkossa. According to Issa, defendant demanded money which the victim handed over to the defendant. At this time, another employee, Churney, approached the checkout counter. Issa heard the defendant tell her to lie down on the floor, which she did. According to Issa, the defendant then instructed him, Alkossa, and the victim to lie down. While the victim was complying with the order, Issa observed the defendant place his gun within a few inches of the victim's forehead and pull the trigger. He testified that he, Alkossa, and Churney got up and fled after the shooting. While fleeing, he heard a shot fired in his direction. That bullet was recovered later, and it was stipulated that it was fired from the .357 Smith and Wesson magnum handgun stolen from Berry and found in the defendant's possession when he was arrested later that evening.

Issa further testified that he viewed a lineup on April 23 and identified the defendant as the man who robbed his store and shot his brother, Mousa. He also made an in-court identification of the defendant as the man he picked from the lineup.

On cross-examination, Issa stated that a bottle of vodka and a six pack of beer were among the items defendant placed in his cart. He also acknowledged that he had no special expertise in recognizing the behavior of an alcoholic or a polydrug abuser.

The next witness for the State's case in chief on the Mousa killing was Alkossa, an employee of the grocery store. Alkossa testified that defendant entered the store at closing time, took a cart, placed a briefcase in the cart, and then proceeded to push the cart up and down the aisles, picking up several items. Alkossa stated that he went to the checkout counter and waited, along with the victim, for the defendant to finish shopping. According to Alkossa, defendant wheeled his cart up to the checkout counter and placed several items, including a bottle of vodka and a six pack of beer, on the counter. Alkossa placed the items in a bag. He noticed that the defendant was wearing gloves.

Alkossa further testified that defendant asked the victim if he was the manager. He heard the victim answer in the negative and point towards his brother, Issa. Alkossa then testified that the defendant called to Issa, who responded by approaching the checkout counter. As Issa approached, Alkossa stated that he observed the defendant pull a gun. He said that the defendant demanded money, which he received from the victim and placed in the briefcase. According to Alkossa, defendant then ordered everyone to lie down on the floor. While lying on the floor, Alkossa stated that he saw the defendant place his gun a few inches from the victim's forehead and fire. Alkossa said that he immediately jumped to his feet and started running. He further testified that, throughout the entire incident, defendant did not appear to be under the influence of alcohol.

Alkossa also testified that the police brought the defendant to the store about 15 minutes after the robbery and shooting. He identified the defendant as the perpetrator. Alkossa stated that the next day, April 23, he viewed a lineup and again identified the defendant as the person who robbed the store and shot Mousa. Alkossa also made an in-court identification of the defendant as the perpetrator.

On cross-examination, Alkossa acknowledged that he had never seen the defendant before the incident. He also acknowledged that he had never observed the defendant under the influence of alcohol or other drugs.

Another employee, Churney, also testified as part of the State's case in chief. She testified that on April 22 she approached the checkout counter as she was leaving. She stated that the defendant pointed a gun at her and ordered her to the floor along with the victim, Issa and Alkossa. She testified that, during this time, she was within three feet of the defendant and that she did not smell the odor of alcohol on his breath. Continuing her testimony, Churney said that, while on the floor, she saw the defendant shoot the victim. Churney further testified that she viewed a lineup on April 23, the day after the robbery and shooting, and picked out the defendant as the perpetrator.

The parties then stipulated that the cause of death of the victim was a single gunshot wound to the head. Further, it was stipulated that the bullet which killed the victim was fired from the .357 Smith and Wesson magnum handgun stolen from Berry and found in the defendant's possession at the time of his arrest.

The State, continuing its case in chief, called the officer who arrested the defendant. He testified that he arrested the defendant at about 8:15 p.m. on April 22 in an alley not far from the grocery store. The officer testified that, at the time of the arrest, defendant was wearing gloves and carrying a briefcase. The officer further testified that, after stopping the defendant, he placed the briefcase on the hood of his squadrol and then performed a patdown search. He stated that, as he completed his search of the defendant's legs and started to stand up, he observed the defendant's hand reaching into the briefcase. He seized the briefcase, opened it, and found a .357 Smith and Wesson magnum. He further stated he found approximately $500 in defendant's right front pocket. The officer also testified that he did not smell the odor of alcohol on the defendant's breath. He stated that the defendant did not sway or stagger.

The State called Detective Stevens, the officer who questioned the defendant about three hours after his arrest. Stevens stated that he did not smell the odor of alcohol on defendant's breath. Stevens also stated that the defendant appeared lucid. Stevens further testified that before being asked any questions, defendant said to him, "Do you understand that the American Medical Association recognizes alcoholism as a disease."

Stevens testified that, in response to his questions, defendant stated that he was an alcoholic and experienced blackouts. According to Stevens, defendant stated that he did not remember being in the grocery store. When Stevens asked him where he got the gun, defendant told him that he bought it from a black male for $35. According to Stevens, defendant claimed to have purchased the gun in front of a bar around 1 a.m. on the morning of April 22.

Stevens then testified about the substance of a second interview with the defendant. Stevens stated that he told the defendant that he had been identified in each of three lineups as the person who robbed a grocery store and shot a clerk. Stevens said that he also told the defendant that his story about how he obtained the gun could not be corroborated. In addition, Stevens told the defendant that the gun had been linked to another shooting which occurred on April 21. According to Stevens, the defendant responded by saying that he had not told the truth and that he would do so now.

Stevens continued, testifying that the defendant told him that he stole the gun from a former employer; that he robbed The Alley; that he took the clerk into a back room; that he cocked the gun in order to scare her; that she made a move towards the gun; that he "heard" the gun go off. Stevens stated that the defendant said he returned home after the shooting and began drinking. Defendant told Stevens that he fell asleep, woke up around 6 p.m. on April 22, got up, went to the grocery store and robbed it. According to Stevens, the defendant said that he cocked the gun in order to frighten the clerk and that the gun discharged accidentally.

After giving this oral statement, defendant was interviewed by Assistant State's Attorney Kathleen Warnick. Warnick also testified as part of the State's case in chief. She stated that she interviewed the defendant about both the Steinke killing and the Mousa killing. Warnick testified that the defendant told her he had been drinking throughout the period in question but, according to Warnick, defendant was able to remember what transpired in each incident.

Warnick's testimony about the content of defendant's oral statement substantially paralleled the testimony of Detective Stevens as to the nature of the defendant's statement. After receiving defendant's oral statement, Warnick testified that she asked him whether or not he wanted to give a written statement. According to Warnick, defendant declined to do so. The State then rested its case.

The evidence presented by the defendant did not dispute the essential facts of the offenses charged but focused instead on his mental state at the time. Defendant did not testify in this regard. However, defendant did call Dr. Anthony Gaspero, a licensed clinical psychologist, who was qualified as an expert witness.

Dr. Gaspero testified that he interviewed the defendant in February 1983 and administered several psychological tests. Concerning the results of his examination, Gaspero testified that the defendant was a severe alcoholic with a 20- to 25-year history of alcohol abuse. He stated that, as a result of defendant's alcoholism, defendant had lost most of his pancreas and was required to take insulin for the resulting diabetes. He also testified that the defendant abused other drugs, particularly caffeine and the prescription drug Valium. Gaspero stated that, in his opinion, defendant also suffered from a severe depression which he stated was a feature of ...


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