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04/02/87 the People of the State of v. Keith Shum

April 2, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE

v.

KEITH SHUM, APPELLANT



SUPREME COURT OF ILLINOIS

512 N.E.2d 1183, 117 Ill. 2d 317, 111 Ill. Dec. 546 1987.IL.420

Appeal from the Circuit Court of Cook County, the Hon. James J. Heyda, Judge, presiding.

APPELLATE Judges:

JUSTICE RYAN delivered the opinion of the court. JUSTICE SIMON, Dissenting. CHIEF JUSTICE CLARK joins in this Dissent.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE RYAN

The defendant, Keith Shum, was charged by indictment in the circuit court of Cook County with the murder of Gwendolyn Whipple (Ill. Rev. Stat. 1981, ch. 38, pars. 9-1(a)(1), (a)(2), (a)(3)), the feticide of Whipple's unborn child (Ill. Rev. Stat. 1981, ch. 38, pars. 9-1.1(a)(1), (a)(3)), the attempted murder of Theresa Conway (Ill. Rev. Stat. 1981, ch. 38, par. 8-4), and the rape of both Whipple and Conway (Ill. Rev. Stat. 1981, ch. 38, par. 11-1). A jury found the defendant guilty of all charges and the trial court accepted his waiver of a jury for sentencing. After hearing evidence in aggravation and mitigation, the court sentenced defendant to death on the murder charge (Ill. Rev. Stat. 1981, ch. 38, pars. 9-1(b), (d), (h)), and to concurrent prison terms for the feticide conviction, both rape convictions, and the attempted murder of Conway (Ill. Rev. Stat. 1981, ch. 38, pars. 1005-8-1, 1005-8-2). 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). For the reasons set forth below, we affirm the defendant's convictions and the sentences imposed by the court.

The evidence shows that at the time of her death, Gwendolyn Whipple was nine months' pregnant. She lived with Theresa Conway and Conway's three children in a one-room apartment at 6617 Racine in Chicago. Conway was acquainted with the defendant, whom she knew only as Keith, through her boyfriend, Mark Aytchan. In fact, the defendant had visited the apartment both in the company of Aytchan and alone.

Between 11:15 and 11:30 on the evening of July 6, 1982, while Whipple and Conway were playing cards, they heard a knock at their apartment door. Both women asked who it was and the person responded "Keith." The women immediately invited the person to come in. Conway identified the man who entered the apartment that evening -- the man she knew only as Keith -- as the defendant, Keith Shum.

Upon entering their apartment, the defendant offered the two women some marijuana. After the three shared one "joint," the defendant remarked that Conway's boyfriend, Mark Aytchan, who was then in the Cook County jail awaiting trial on a burglary charge, had asked him to "keep an eye" on Conway and Whipple. Conway told the defendant that he was a liar because she had talked to Aytchan and that he had not mentioned any such conversation. Defendant became angry and pointed the tip of the umbrella he was carrying at Conway's left jaw until she could feel the sharp point. Conway pushed the umbrella away from her face, ran across the room, and grabbed a knife off the top of the dresser. In response, the defendant opened his jacket and pulled out a gun. Conway told the defendant that she thought the gun was just a toy. The defendant showed Conway the bullets in the gun and she dropped the knife.

The defendant ordered the two women to lie side by side, face down, across a bed that sat next to a window in the apartment. While this was happening, one of Conway's sons was awakened by the noise. The defendant went over to the boy and placed the gun against his forehead. Conway got up and pleaded with the defendant to shoot her instead of her son. The defendant told Conway to make her son lie down and ordered her back to the bed by the window.

The defendant walked to a position behind Theresa Conway and undressed her from the waist down. He proceeded to have sexual intercourse with her while holding the gun to the back of Gwendolyn Whipple's head. Conway testified that the defendant next undressed Whipple from the waist down. She also stated that the defendant had sexual intercourse with Whipple despite her protests that he was hurting her. After he had intercourse with both women, the defendant walked around to the front of the bed. He next forced both women to perform oral sex on him by threatening to kill them if they refused.

At this point, the defendant walked to the window, opened it, and sat on the ledge. The defendant pointed the gun back and forth from left to right, aiming alternately at each of the women while telling them "I'm going to kill you." Theresa Conway testified that the next thing she heard was a bang, followed by another, and then followed by three more in rapid succession.

Conway received gunshot wounds to her right mandible, the right side of her neck, and her right arm. Whipple received a total of five gunshot wounds. One bullet entered her skull and lacerated the brain, two more struck her on the left side of her forehead and the remaining two struck her left shoulder.

When Conway raised her head to look around the room, the defendant had gone. Conway tried to rouse Whipple but discovered that her roommate had been shot. Conway ran from the apartment down a hallway toward the apartment of Gus and Marquita Wilson.

Gus Wilson testified that it was approximately 1 a.m., July 7, 1982, when he and his wife heard a persistent knock at the door of their apartment. Wilson opened his door to find Theresa Conway "with blood all over her hands," holding her wrist. Wilson stated that Conway told him she and Whipple had both been shot. Wilson also testified that when he asked Conway who had done this to her, she replied "Keith."

Wilson immediately went to the women's apartment and found Conway's three children unharmed. He checked Gwendolyn Whipple for a pulse but was unable to detect one. Wilson returned to his apartment and called for help. A paramedic, who arrived a short time later, testified that upon his initial examination Whipple showed no vital signs and that he was unable to detect any heart tones from Whipple's unborn child. He stated that in his opinion both Whipple and the fetus were dead when he arrived.

Conway was admitted to St. Bernard's Hospital at 1:15 a.m. on July 7, 1982. At approximately 2:30 that morning she was interviewed by two detectives from the Chicago police department. Conway gave the detectives a description of her assailant. She also told them that his name was Keith and that her boyfriend, Mark Aytchan, would know more information about him, including his last name. Conway also told the detectives that they could contact Aytchan in the county jail.

The detectives interviewed Aytchan at 3:30 that morning in the county jail. Aytchan informed the detectives that the only person that he could think of that Conway would be talking about was the defendant, Keith Shum. Aytchan gave the detectives the address where he knew the defendant was staying, 6418 Sangamon in Chicago.

The detectives proceeded to this address and were admitted to the defendant's apartment by his aunt, Bernice Shum. One of the detectives testified that the defendant was undressed and asleep on a couch when they arrived and that Bernice Shum woke him up to talk to them. The detective also stated that the officers identified themselves to the defendant, indicated to him why they were there, and informed him of his rights. The detective noted that when asked about the incident, the defendant denied any participation.

The defendant was taken from his apartment to St. Bernard's Hospital. There he was taken handcuffed to Conway's room. She immediately identified him as the person that had raped and shot her and Gwendolyn Whipple.

Prior to the beginning of trial, the prosecution indicated that if the defendant were found guilty, it would seek the death penalty. Moments before jury selection began the defendant tendered and filed with the court a waiver of his right to a jury during the penalty hearing. The trial Judge rejected the waiver, indicating that it was his belief "that the defendant couldn't knowingly waive his right to the death penalty or the aggravation portion until . . . the appropriate time, . . . until he has heard all the evidence . . . against him." The court began jury selection by qualifying the jurors pursuant to Witherspoon v. Illinois (1968), 391 U.S. 510, 20 L. Ed. 2d 776, 88 S. Ct. 1770.

At trial, expert testimony revealed that Gwendolyn Whipple's death was caused by the bullet that entered her skull and that her fetus died as a result of intrauterine asphyxia caused by the mother's death. Two doctors testified that Gwendolyn Whipple's full-term fetus could have survived outside its mother's womb.

The jury returned guilty verdicts on all charges. The defendant then tendered a second waiver of his right to a jury for the penalty hearing, which the court accepted. The court found that the defendant was eligible for capital punishment based on his conviction for a murder which occurred in the course of another felony "to wit, rape." Ill. Rev. Stat. 1981, ch. 38, par. 9-1(b)(6).

The court then heard evidence in aggravation and mitigation. (Ill. Rev. Stat. 1981, ch. 38, par. 9-1(h).) Included as evidence in aggravation was testimony by Theresa Conway and her mother as to the extent and duration of her injuries. In mitigation, defense counsel, Gwendolyn Anderson, testified as to her unsuccessful efforts to bring in witnesses to testify on the defendant's behalf and as to the unavailability of potential evidence contained in the defendant's medical and school records. Following a nearly four-week continuance to allow specific witnesses to be contacted, defense counsel again informed the court that no witnesses would be produced in mitigation. The court then found that there was "no mitigating factor sufficient to preclude the imposition of the death sentence." The court therefore sentenced the defendant to death for the murder of Gwendolyn Whipple. The court also imposed an extended prison term (Ill. Rev. Stat. 1981, ch. 38, par. 1005-8-2(a)) of 60 years for the feticide of Whipple's unborn child. Prison terms of 30 years each were imposed for the rape of Gwendolyn Whipple, the rape of Theresa Conway, and the attempted murder of Conway. (Ill. Rev. Stat. 1981, ch. 38, par. 1005-8-1.) The prison terms are to run concurrently.

As noted above, the death sentence was stayed under the provisions of Supreme Court Rule 609(a) (87 Ill. 2d R. 609(a)), pending the final order of this court. The cause is before us on defendant's right to direct appeal. Ill. Const. 1970, art. VI, sec. 4(b); 87 Ill. 2d R. 603.

The defendant argues that under our recent decision in Daley v. Hett (1986), 113 Ill. 2d 75, the trial court erred by refusing to accept his pretrial jury waiver for the penalty phase of trial. The defendant further argues that this error allowed the court to death qualify the jury pursuant to Witherspoon v. Illinois (1968), 391 U.S. 510, 20 L. Ed. 2d 776, 88 S. Ct. 1770. The defendant maintains that his convictions should be reversed and a new trial ordered because the qualification of the jury denied him a fair trial.

Section 9-1(d) of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 9-1(d)) gives the defendant convicted of a capital crime the right to have a jury decide whether the death penalty should be imposed. Also under this section of the statute the defendant may waive the right of a jury determination.

We do not agree that the defendant was denied a fair trial because of the court's failure to accept his waiver of a jury for the sentencing hearing prior to the selection of the jury at the guilt phase of the trial. The defendant executed another jury waiver following the guilt phase of the trial, and the sentencing hearing was conducted before the court without a jury. This court's opinion in Hett, which held that a defendant had a right to execute a jury waiver for the penalty phase of the trial prior to the commencement of the guilt phase, was filed June 30, 1986. The defendant's trial in the case now before us was commenced on September 10, 1984, and the defendant tendered a jury waiver for the sentencing hearing at the beginning of the voir dire examination of the jurors on that date. Thus, we must decide if Hett is to be applied to a case that had been commenced more than 21 months before our holding in that case.

In People v. Erickson (1987), 117 Ill. 2d 271, this court declined to apply Hett retroactively. Following the holding in Erickson we do not agree that the defendant was denied a fair trial either because of the trial court's failure to accept his waiver of a jury for the sentencing hearing prior to the selection of the jury at the guilt phase of the trial or because the State was allowed to question prospective jurors concerning the imposition of the death penalty pursuant to Witherspoon v. Illinois (1968), 391 U.S. 510, 20 L. Ed. 2d 776, 88 S. Ct. 1770. In Erickson this court stated: "It is well established that a jury questioned regarding imposition of the death penalty is presumed to be a fair jury on the issue of guilt or innocence. (Lockhart v. McCree (1986), 476 U.S. 162, 184, 90 L. Ed. 2d 137, 154-55, 106 S. Ct. 1758, 1770; Wainright v. Witt (1985), 469 U.S. 412, 419-22, 83 L. Ed. 2d 841, 849-53, 105 S. Ct. 844, 850-53.) Our cases are in accord. People v. Free (1983), 94 Ill. 2d 378, 401; People v. Tiller (1982), 94 Ill. 2d 303, 321-22; People v. Lewis (1981), 88 Ill. 2d 129, 147." 117 Ill. 2d 271, 292.

While cross-examining Theresa Conway, defense counsel asked whether her former boyfriend Stanley Thompson was also known as Keith Earl. Conway replied that she did not know anyone by that name. The victim was also asked about an incident in which Stanley Thompson allegedly beat both Conway and Whipple. Defense counsel then asked Conway whether she had told a private investigator that a friend whom she knew as Earl Thompson had "pimped on you and Gwendolyn Whipple?" The trial court overruled the prosecution's objection, and Conway answered no.

On redirect examination Conway was asked whether she told the investigator that there was no doubt in her mind that the defendant had shot her and Gwendolyn. Conway responded affirmatively, and the defendant offered no objection.

The defense called the private investigator as a witness, and he testified that Conway had told him that Stanley Thompson was also known as Keith Earl. On cross-examination the prosecution asked the investigator whether Conway had told him that she had made no mistakes in identifying the defendant as her attacker. The court sustained the defendant's objection and a sidebar conference was held. The court reconsidered its position and agreed that the prosecution should be allowed to bring out everything that Conway responded to in the interview. The prosecution then asked:

"MS. TRAFELET [Prosecutor]: . . . id not Theresa Conway indicate to you that she made no mistakes in identifying this defendant as the offender, although she did not know his last name or where he lived at the time of the incident?"

The investigator responded in the affirmative.

The defendant now argues that this testimony was introduced and used to corroborate Conway's testimony and to enhance her overall credibility. Defendant maintains that his convictions should be reversed and a new trial ordered because the admission of this testimony and the prosecution's reference to it during closing argument denied him a fair trial. We do not agree.

We note initially that the defendant's objection to Conway's direct testimony was not raised either at trial or in the post-trial motion. These objections are therefore deemed waived. People v. Stewart (1984), 104 Ill. 2d 463, 488.

In any event, the general rule as noted by this court in People v. Emerson (1983), 97 Ill. 2d 487, 501, is that "evidence of statements made prior to trial for the purpose of corroborating testimony at trial is inadmissible." Exceptions to this rule allow the admission of prior consistent statements to rebut a charge or inference that (1) the witness is motivated to testify falsely or (2) that the in-court testimony is a recent fabrication. 97 Ill. 2d 487, 501; People v. Powell (1973), 53 Ill. 2d 465, 474-75; People v. Clark (1972), 52 Ill. 2d 374, 389.

Clearly, the inferences that the defense was trying to draw with its examination of Conway and the private investigator were that Conway had recently changed her story or that in the time between her interview with the investigator and the trial she had acquired some motive for testifying falsely. Conway's statement to the investigator that she had not made a mistake in identifying the defendant as her attacker was made prior to any alleged fabrication that occurred at trial. It also must have been made prior to her acquiring a motive to lie on the witness stand. These prior consistent statements fit neatly within the exception to the general rule noted above, and we therefore find no error in the court's admission of Conway's testimony or the cross-examination testimony of the private investigator.

Even if the defendant had not waived the issue by failing to object or raise it in his post-trial motion (see People v. Jackson (1981), 84 Ill. 2d 350, 358-59), we would find that the prosecution's reference to this testimony during closing argument was likewise proper. Courts of this State allow a great deal of latitude to the prosecution during closing arguments. (People v. Dominique (1980), 86 Ill. App. 3d 794, 806.) Statements based upon the facts in evidence are not outside the bounds of proper argument. (86 Ill. App. 3d 794, 806.) Theresa Conway's statement to the investigator had been properly admitted into evidence; the prosecution was therefore within the bounds of proper argument in alluding to it.

During direct examination, the prosecution elicited testimony from Theresa Conway, from the officer that interviewed her after the incident, from Gus Wilson, and from Mark Aytchan that Conway had said that "Keith" had shot both her and Gwendolyn Whipple. The defendant now contends that this testimony constituted hearsay and its admission amounted to reversible error.

Conway's testimony regarding her identification of her attacker as "Keith" does not fall within the hearsay rule. (See People v. Clark (1972), 52 Ill. 2d 374, 389.) The fundamental basis for excluding such a statement as hearsay, the lack of an opportunity to cross-examine, is absent. (52 Ill. 2d 374, 389.) Furthermore, this court has stated that the general rule that witnesses may not testify as to statements made out of court to corroborate their testimony given at trial does not apply to statements of identification. (People v. Rogers (1980), 81 Ill. 2d 571, 578-79.) Conway's statement was one of identification and was properly admitted.

As to the officer's testimony, we have previously held that if a witness testifies that he previously identified an offender and the witness' veracity has been tested by cross-examination, a third person may then testify that he heard or saw the witness identify the offender because both the witness and the third person would be subject to cross-examination. (People v. Rogers (1980), 81 Ill. 2d 571, 579.) The evidence of the out-of-court identification by the witness and the third person should be used only in corroboration of an in-court identification and not as substantive evidence. 81 Ill. 2d 571, 579.

In this action, Conway had previously testified as to her identification of her attacker as "Keith" and as to identification of the defendant as "Keith." She was subjected to extensive cross-examination. The prosecution then asked the police officer to testify as to Conway's identification for the purpose of corroborating her original testimony. In its closing argument, the prosecution referred to the officer's testimony only to corroborate Conway's in-court identification of the defendant. This situation clearly falls within the rules set forth in Rogers.

Under the law of this State, for a statement to be admitted as a spontaneous declaration, three requirements must be met. First, the occurrence must be sufficiently startling to produce a spontaneous and unreflecting statement. Second, there must be an absence of time to fabricate. Third, the statement must relate to the circumstances of the occurrence. (People v. Robinson (1978), 73 Ill. 2d 192, 199; People v. Poland (1961), 22 Ill. 2d 175, 181.) The time factor is an elusive element and will vary with the facts of the case. (In re Hatfield (1979), 72 Ill. App. 3d 249, 257.) The fact that the statement was made in response to the question "what happened" does not necessarily destroy its spontaneity. People v. Damen (1963), 28 Ill. 2d 464, 472.

Gus Wilson's testimony that Conway indicated that her attacker was "Keith" was properly admitted under the spontaneous-declaration exception to the hearsay rule. The occurrence was the rape at gunpoint and shooting of Theresa Conway and her roommate. There is no question as to whether these events were sufficiently startling as to produce an unreflecting statement. Second, the time between this particular occurrence and Conway's statement to Gus Wilson did not afford her time to fabricate. Conway's uncontradicted testimony showed that she made her statement to Wilson within minutes of realizing that the defendant had left the apartment and that she and Whipple were both injured. Lastly, the statement related to the occurrence. Gus Wilson asked Conway "who did this" and she responded spontaneously.

As to Mark Aytchan's testimony regarding Conway's identification of her attacker, we note that it was not offered to prove the truth of the matter asserted in the statement. It was offered only to establish what occurred during Aytchan's interview with the police on the morning of July 7. This testimony thus falls outside the classic definition of hearsay evidence (see People v. Rogers (1980), 81 Ill. 2d 571, 577) and was properly admitted.

As previously noted, during direct examination Theresa Conway was also asked about the on-going nature of the injuries she sustained in the incident. The only objections to this testimony were to the form of the questions. The physician who treated Conway after the shooting testified that she had received initial treatment for a week and had been readmitted for treatment.

The defendant now contends that this testimony was irrelevant to a fair determination of his guilt and that a new trial should be ordered. We cannot agree.

"The test of the admissibility of evidence is whether it fairly tends to prove the particular offense charged, and any circumstances may be put in evidence which tend to make the proposition at issue more or less probable. [Citations.]" (People v. Peter (1973), 55 Ill. 2d 443, 459.) Where a defendant is charged with attempted murder, it must be proved that he acted with the intent to kill the victim and that he took a substantial step toward the commission of the crime. (Ill. Rev. Stat. 1981, ch. 38, par. 8-4(a).) Evidence as to the extent of the injuries suffered by a victim has been held to be relevant to the defendant's intent and to the steps taken toward the commission of an attempted murder. People v. Maxwell (1985), 130 Ill. App. 3d 212, 218; People v. Goodwin (1980), 83 Ill. App. 3d 203, 206.

In the instant case the testimony regarding the nature and extent of Theresa Conway's injuries was relevant to proving both the intent of the defendant and that substantial steps were taken toward the commission of the murder.

The defendant argues that various remarks made by the trial court to the jury concerning the possible length of the trial and jury deliberations denied him a fair trial and, therefore, his convictions should be reversed.

We agree that a court's comments can have an effect on jurors (People v. Riggins (1956), 8 Ill. 2d 78) and that a jury should not be swayed by judicial opinion either directly or indirectly (People v. Finn (1959), 17 Ill. 2d 614). We also recognize that statements suggesting that a quick verdict be reached at the expense of a thoughtful verdict (United States v. Peskin (7th Cir. 1975), 527 F.2d 71, 85) or which reflect the Judge's assessment that the facts bear relatively easy resolution are to be avoided (United States v. Thomas (D.C. Cir. 1971), 449 F.2d 1177, 1183), and that it is the effect of the court's statements and not the court's intent that must be examined (People v. Kelley (1983), 113 Ill. App. 3d 761, 767). However, a review of the record shows that defendant's contention that a reversal is required in this cause is without merit.

Instead of reversible error, we find that the trial court's statements represented an attempt to comply with the admonitions of our Rule 61(c) (87 Ill. 2d R. 61(c)). The remarks concerning the length of trial that defendant complains of were made by the Judge during voir dire. The court's estimate of how much time the trial would entail on a daily basis and in total was given to enable the prospective jurors to ascertain whether they would be able to serve competently and continually throughout the trial. The remarks thus reflect the court's recognition of its responsibility for the "prompt and convenient dispatch of its business." (87 Ill. 2d R. 61(c)(7).) A third remark made during voir dire simply explained to the prospective jurors that they would be serving primarily in the afternoon. Again, the remarks were in keeping with a Judge's responsibility to inform the jurors of the scope of their duty. (See 87 Ill. 2d Rules 61(c)(5), (c)(6), (c)(7).) The final remark that defendant complains of was made close to the end of the trial and consisted of nothing more than the court's effort to inform the jurors that they might expect to be sequestered after the next session of court. Again, the remark reflects the trial Judge's awareness of his responsibility for organizing his court and his consideration for the jury. 87 Ill. 2d Rules 61(c)(7), (c)(8).

The defendant also maintains that his convictions should be reversed and a new trial ordered because he was denied a fair trial by various improper arguments made by ...


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