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04/02/87 the People of the State of v. Paul S. Erickson

April 2, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE

v.

PAUL S. ERICKSON, APPELLANT



SUPREME COURT OF ILLINOIS

513 N.E.2d 367, 117 Ill. 2d 271, 111 Ill. Dec. 924 1987.IL.418

Appeal from the Circuit Court of Cook County, the Hon. Michael P. Toomin, Judge, presiding.

APPELLATE Judges:

JUSTICE MORAN delivered the opinion of the court. JUSTICE GOLDENHERSH took no part in the consideration or decision of this case. JUSTICE SIMON, Dissenting. CHIEF JUSTICE CLARK joins in this Dissent.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MORAN

Defendant, Paul Erickson, was charged by information filed in the circuit court of Cook County with the murder of Elizabeth Launer. The information contained additional charges stemming from the incident, for a total of 10 counts. Count one of the information charged intentional murder (Ill. Rev. Stat. 1981, ch. 38, par. 9-1(a)(1)); count two charged knowing murder (Ill. Rev. Stat. 1981, ch. 38, par. 9-1(a)(2)); count three charged felony murder predicated upon rape (Ill. Rev. Stat. 1981, ch. 38, par. 9-1(a)(3)); count four charged rape (Ill. Rev. Stat. 1981, ch. 38, par. 11-1); count five charged unlawful restraint (Ill. Rev. Stat. 1981, ch. 38, par. 10-3); count six charged concealment of a homicidal death (Ill. Rev. Stat. 1981, ch. 38, par. 9-3.1); counts seven through ten charged armed violence predicated upon the prior counts of knowing murder, felony murder, rape, and unlawful restraint, respectively (Ill. Rev. Stat. 1981, ch. 38, par. 33A-2).

Defendant pleaded not guilty. The State indicated that it would seek the death penalty in the event the defendant was convicted of murder. Before the commencement of trial, the defendant attempted to waive his right to a jury to consider imposition of the death penalty if he were convicted of murder. The court refused defendant's waiver. Defendant then elected to be tried by a jury. At the Conclusion of trial, the jury returned general verdicts of guilty on all counts.

Defendant again tendered a waiver of the sentencing jury which was accepted. The sentencing hearing then commenced before the court pursuant to section 9-1(d)(3) of the death penalty statute (Ill. Rev. Stat. 1981, ch. 38, par. 9-1(d)(3)). At the Conclusion of the proceeding, judgment was entered on the convictions for murder and concealing a homicidal death. The court merged the conviction of unlawful restraint into the rape conviction and entered judgment thereon. No judgment was entered on the armed-violence counts. The court then sentenced the defendant to death for murder; an extended term of 60 years for rape (Ill. Rev. Stat. 1981, ch. 38, par. 1005-8-2); and a consecutive term of 10 years for concealment of a homicidal death (Ill. Rev. Stat. 1981, ch. 38, par. 1005-8-4(b)). Because the death penalty was imposed, the cause comes directly to this court for review pursuant to Supreme Court Rule 603 (87 Ill. 2d R. 603).

We set forth below only those facts necessary to decide the issues defendant raises before this court.

Testimony given during the State's case in chief established that the body of Elizabeth Launer was found in a retention pond in Rolling Meadows, Illinois, on August 4, 1982. Preliminary examination of the body revealed two stab wounds, one in the chest and one in the abdomen.

Testimony proffered by the State also established that, on the evening of July 30, 1982, the defendant, at the request of a former girlfriend, Lisa Soderberg, provided his car, bought alcoholic beverages, and rented a motel room at the Rolling Meadows Holiday Inn for a group of five juveniles. The group consisted of Soderberg, Thomas Fairweather, Michael Blanchard, Renee East and the victim, Elizabeth Launer. Later in the evening, East left the motel, leaving the defendant and four juveniles in the room.

Fairweather, testifying for the State, stated that, at approximately 11:30 p.m., the defendant approached him, walked with him outside, and asked whether or not he could keep his "mouth shut" if he knew about a bad crime. Fairweather answered in the affirmative and asked what kind of crime. Fairweather stated that the defendant referred to rape and indicated that he wanted to have sex with Launer. According to Fairweather, defendant said that he would rape her if she did not cooperate with his advances.

Fairweather further testified that he expressed concern about Launer's reporting the rape to the police. The defendant allegedly replied that, after the rape, they would kill her. According to Fairweather, the defendant displayed a knife which he took from underneath the front driver's seat of his car. He also showed Fairweather two neckties and a "rolled up, folded over sock."

Fairweather continued, testifying that the defendant then approached him and Blanchard with the following plan. It would be necessary for Soderberg to leave. According to Fairweather, the defendant suggested that Fairweather provoke an argument with her so that she would get angry and depart. Fairweather testified that the defendant then gave the two ties to Blanchard and the sock to him.

Fairweather stated that the defendant did not want to rape the victim at the motel so the defendant said that the group would leave the motel in his car. Fairweather testified that the defendant instructed Blanchard to sit in the front seat on the passenger's side next to the victim, who would be seated between him and the defendant. Defendant told Fairweather to sit in the back seat on the passenger's side. On the defendant's signal, Fairweather was to reach over the seat and stuff the sock into Launer's mouth. He and Blanchard would grab Launer, tie her hands with one necktie, and place the other tie over her mouth. According to Fairweather, the defendant said they would "take her clothes off, rape her, kill her and get rid of the body."

Fairweather continued, testifying that, as instructed by the defendant, he did start an argument with Soderberg which caused her to leave and not return. The group, now made up of the defendant, Blanchard, Fairweather, and Launer, then left the motel in the defendant's car positioned according to his instructions.

The defendant drove to an apartment complex in Rolling Meadows, parking in a grassy area behind some tennis courts. Fairweather further testified that the defendant looked back at him and nodded. Fairweather responded by attempting to place the sock in Launer's mouth, but he was unsuccessful.

Fairweather did not see the victim being bound. However, he testified that he saw the defendant pull his knife from under the front driver's seat and begin cutting Launer's clothing. At this point, Fairweather stated that Blanchard left the vehicle. The defendant did not stop but proceeded to remove Launer's clothing.

The defendant laid Launer across the front seat. According to Fairweather, he saw the defendant position himself between her legs. He next heard a zipper being unzipped. He then heard a slap and heard the defendant say "open up, bitch." He also saw the defendant lower himself on top of the victim. A short while later, Fairweather heard a zip and snap and observed the defendant exit the car. At this point, Fairweather testified that he got into the front seat and was attempting to free Launer when the defendant returned and got into the back seat. Fairweather then "pretended" to have sexual intercourse with Launer. However, he denied having any sexual contact with her.

The defendant then got out of the car, opened the front door, and pulled the victim out of the car. Fairweather picked up her clothes, and the three walked toward the retention pond located close by.

Fairweather testified that the defendant forced Launer to the ground. She was lying on her back and Fairweather was holding her head. Fairweather testified that he saw the defendant pull out the knife, raise his hand, and strike Launer in the chest. He immediately let go of her head and started to walk away, at which point he "heard the knife go into the body again."

He and the defendant threw the body and the clothing into the pond. They returned to the car and, along with Blanchard, left the scene.

Fairweather further testified that the trio went to the home of the defendant's girlfriend, Mickey Jaksch. They woke her up and, according to Fairweather, the defendant told her that he had raped and killed a girl. Jaksch, who later testified as part of the State's case in chief, corroborated Fairweather's testimony as to this admission.

On cross-examination, Fairweather indicated that he too was charged with murder, rape, concealment of a homicidal death, unlawful restraint, and armed violence. He stated that he was charged as a juvenile and that, in return for his testimony, he would plead guilty to one charge, receiving a sentence of approximately four years, with the possibility of reduction for good time served.

Blanchard also testified for the State. Blanchard stated that he and Fairweather engaged in a conversation initiated by the defendant during which the defendant said that he wanted to have sex with Launer. According to Blanchard, the defendant talked about raping Launer and killing her if she resisted.

Blanchard stated that the defendant initiated another exchange with him and Fairweather. At this time, the defendant gave Fairweather a sock, telling him that he was to reach over the front seat and put the sock in Launer's mouth as a gag. According to Blanchard, the defendant gave him two or three ties which were to be used to bind the victim. Blanchard kept one and returned the others.

Blanchard testified that the group left the motel and drove to an apartment complex. The defendant was driving; he, Blanchard, was seated on the right passenger side; Launer was seated in the middle between the defendant and Blanchard; Fairweather was seated in the back.

Blanchard stated that the defendant parked towards the back of the complex next to some tennis courts and a grassy field. After a short while, Blanchard observed the defendant look into the back seat and nod his head. He observed Fairweather reach over the front seat and attempt to place the sock in Launer's mouth. He was unsuccessful. Blanchard then observed a struggle between the defendant and Launer, but he did not see him either bind or gag her.

Blanchard testified that he then got out of the car and walked about 20 yards away. He further testified that he heard crying and moaning sounds coming from the defendant's car. A short while later, he observed the defendant pull Launer out of the car and watched as the defendant, Fairweather, and Launer walked into some trees and bushes, at which point he lost sight of them.

Blanchard testified that he heard moaning and sobbing, followed by a scream. A few minutes later, he heard a splash. The defendant and Fairweather then returned and the three left. While driving away, Blanchard stated that the defendant admitted stabbing Launer.

Blanchard continued, testifying that the three drove to the home of Jaksch, the defendant's girlfriend. There, Blanchard heard the defendant tell her that he just killed somebody: "her name was Liz."

On cross-examination, Blanchard stated that he was charged in a juvenile petition with concealment of a homicidal death. He acknowledged that, in return for his testimony, he expected the charge to be dropped.

The defendant was the sole witness in his defense. His testimony materially differed from that of Fairweather and Blanchard, particularly as to whose idea it was to rape and kill Launer and who actually killed her.

The defendant testified that it was Fairweather who wanted to have sex with Launer and, further, that it was Fairweather who said he would rape her if he had to and that "she would never go home again." According to the defendant, Fairweather supplied the sock and the ties, though he admitted that the tie used to bind Launer's hands belonged to his father.

The defendant further testified that he assisted Fairweather and Blanchard in tying up the victim. However, he denied raping her. He testified that he left the car and, when he returned, Fairweather's pants were down. Shortly thereafter, Fairweather got up, pulled up his pants, and the two of them pulled Launer from the car and walked towards the retention pond. There, the victim was told to lie down on the ground. When she did so, the defendant said that he knelt down and held her feet. The defendant testified that he saw Fairweather strike Launer in the chest with a knife which he admitted belonged to him. He and Fairweather then threw the body and the clothes into the pond and left. The defendant acknowledged going to Jaksch's house. However, according to the defendant, he said only that he was involved in the killing of a girl.

The jury found the defendant guilty on all counts. The matter then proceeded to a death penalty hearing. During the course of the hearing, the court granted a continuance of almost four weeks at the request of defense counsel.

The hearing resumed, and the court found that the defendant was born on February 2, 1957, and was 25 years old at the time of the offense. The court further found beyond a reasonable doubt the existence of one statutory aggravating factor: that the victim was killed in the course of a felony, rape, and that the defendant actually killed the victim. Ill. Rev. Stat. 1981, ch. 38, par. 9-1(b)(6).

The court proceeded to take testimony in aggravation and mitigation. In aggravation, the State presented the testimony of Billy Johnson, who recounted an incident which occurred approximately two weeks before Launer was killed. Johnson testified that he and the defendant, at the defendant's suggestion, went to O'Hare International Airport to pick up a prostitute. Johnson testified that the defendant said they would have to "get rid" of her, meaning they would have to kill the prostitute after having sex. The State also presented the testimony of Leslie Blackstock, who testified that she was raped by Erickson in 1979.

The State also offered the testimony of Rolling Meadows' police detective Greenway, who recounted a conversation he recently had had with Joanne Combs, a former girlfriend of the defendant. Over defense objection, Greenway testified that Combs told him that the defendant slapped her around, made her pregnant, and threatened to kill her if she told anyone that he was the father. Greenway also testified that Combs said that the defendant had told her he once stabbed a black man to death.

Defendant offered two factors in mitigation: "no significant history of prior criminal activity" and the presence of an "extreme mental or emotional disturbance, although not such as to constitute a defense to prosecution." (Ill. Rev. Stat. 1981, ch. 38, pars. 9-1(c)(1), (2).) In support of the second mitigating factor, defendant offered the testimony and report of Dr. John Weliczko, a psychotherapist. The court refused to qualify Dr. Weliczko as an expert. The court also denied the defendant's motion for a continuance to secure the testimony of an expert, ruling that such additional testimony would be cumulative to that of Dr. Weliczko, which the court would be considering.

The court found, after reviewing all of the evidence in aggravation and mitigation, that there were no mitigation factors sufficient to preclude the imposition of the death penalty. (Ill. Rev. Stat. 1981, ch. 38, par. 9-1(h).) In sentencing the defendant to death, the trial Judge made reference to the defendant's parents, stating that, if he could consider their feelings, his judgment would be different.

Defendant raises 16 issues on appeal. Three concern the conduct of the trial, which defendant contends warrants reversal of this conviction and a new trial. Defendant raises nine issues concerning conduct of the death penalty hearing which he contends warrant remand for resentencing. He also raises four issues challenging the constitutionality of the death penalty statute. We first consider the issues relating to defendant's trial.

Defendant initially contends that he should be granted a new trial because the trial court erred in refusing to accept his pretrial waiver of the sentencing jury. The court further erred, according to the defendant, in permitting the State to question prospective jurors, who would be impaneled to consider the issue of his guilt or innocence, on their views regarding imposition of the death ...


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