APPELLATE COURT OF ILLINOIS, SECOND DISTRICT
509 N.E.2d 1337, 156 Ill. App. 3d 742, 109 Ill. Dec. 325 1987.IL.808
Appeal from the Circuit Court of Lake County; the Hon. Bernard E. Drew, Judge, presiding.
PRESIDING JUSTICE LINDBERG delivered the opinion of the court. NASH and HOPF, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LINDBERG
Following a jury trial, defendant, Mark Groleau, was convicted of murdering (Ill. Rev. Stat. 1985, ch. 38, par. 9-1) his ex-wife, Sharon Groleau. Defendant was sentenced to 45 years' imprisonment. On appeal, he argues that the trial court erred: (1) in admitting into evidence the hearsay testimony of a State's witness regarding a Discussion concerning "ex-wives" in which defendant was a participant; (2) in limiting the redirect examination of an alibi witness for purposes of rehabilitation; (3) in admitting evidence of a prior altercation between defendant and his ex-wife; (4) in not granting him a mistrial when the prosecution remarked in front of the jury that defendant could not be sentenced to death; (5) in allowing certain testimony presented in rebuttal to exceed the scope of rebuttal; and (6) in its decision not to return 10% of defendant's posted bail. We affirm in part, reverse in part, and remand for further proceedings.
Mark and Sharon Groleau were married in September 1982. They had a daughter, Amy, born in May 1983. Defendant and Sharon were divorced in July 1984. Initially, both parents shared custody of Amy. This situation was modified in October 1984 when defendant obtained sole custody of the child with his ex-wife having reasonable visitation rights. During one of these visits on January 2, 1985, Sharon picked up Amy to go shopping, but instead took the child to Virginia to visit her brother. Defendant filed kidnaping charges against Sharon when the child was not returned home later that evening. Upon being informed by Sharon's family where she and the child were, Mark in a telephone conversation with his ex-wife promised her that he would try to work things out between the two of them if she came back to Illinois with Amy. He sent Sharon a plane ticket, and she and the child returned to Illinois on Saturday, January 5, 1985. The following Monday defendant contacted his attorney to restrict the terms of his ex-wife's visitation rights to include the provision that she was not allowed to see the child alone but only in the presence of her parents or defendant's parents.
Meanwhile, Sharon was allowed to stay at defendant's apartment over the weekend. On Monday he informed her that she had to leave, which she refused to do. Incensed, defendant bodily removed her from the apartment clad only in a nightgown, even though it was a rather cold January day. Two State's witnesses testified that they had seen defendant "pushing and choking her" trying to get her out of the apartment. Soon thereafter, defendant allowed Sharon back in to phone her father to pick her up.
Two days later on January 9, 1985, Sharon came by again to pick up Amy. Defendant did not allow the child to accompany her mother, stating that he was afraid that the child would again be kidnaped. Defendant called the police, who informed Sharon that she would have to leave. Immediately thereafter, Sharon filed a battery report with the police regarding the January 7, 1985, incident. An officer came to talk to defendant at his place of employment, the Great Lakes fire station, regarding Sharon's accusation, but no charges were filed.
The incident that gave rise to the murder charge against defendant took place on January 27, 1985, three weeks after the events described above. Defendant testified that on that Sunday morning Sharon was dropped off at his apartment by her sister at approximately 9:30 a.m. for her visit with Amy. An argument ensued between Sharon and defendant regarding the fact that Amy's clothes did not match. According to defendant's testimony, while she was changing the child's outfit Sharon had a nose bleed. Defendant accused her of continuing to use cocaine, despite her promise to the contrary. According to defendant, Sharon answered that since they were divorced "I [Sharon] can do anything want to do, and you [defendant] can't --. You have nothing to say about it." Sharon, nevertheless, denied using drugs and claimed that she had a cold.
Defendant further testified that he threw a towel at her to wipe her nose while she was sneezing on the child. After Sharon changed Amy's blouse once again, defendant testified that he was so aggravated by his ex-wife's behavior, that he had to leave the apartment and went to his parents' house in Winthrop Harbor, a 7 1/2-minute car ride from his apartment in Zion. Defendant testified that he left his house sometime after 9:30 a.m. and arrived at his parents' house before 10 a.m. He further testified that while at his parents house, he did his laundry, which he had brought with him from home, and also burned some trash in the backyard in a trash burner. At trial, testimony was presented that among the burned trash a small wood fragment was found which could have come from a baseball bat. This fact was never conclusively established. Also, a towel was found among the burned items. The towel was a part of a set that defendant's parents testified belonged to them, but another towel from the set was observed in Sharon's hand when she was found dead later that day.
Defendant testified that at about 12:45 p.m. he telephoned a neighbor to ask whether her small son could come out to play with Amy. When this did not happen, defendant returned with Amy to the apartment at 1 p.m. There, upon opening the door, he observed Sharon lying on her stomach on the floor. Defendant took Amy to his landlord's apartment, where he called the rescue squad. On the phone he informed them that he suspected his wife had overdosed, but that there was some blood. Defendant is a trained fireman and, thus, had had training in emergency medical techniques and had observed overdoses before. At trial in cross-examination, he testified that it seemed rather peculiar to him that this time there was blood accompanying an overdose. Defendant at no time made any attempts to determine his ex-wife's condition or to administer any first aid. When the rescue squad arrived, they immediately ascertained that the death was a homicide, and the police were called.
At trial, testimony was presented that Sharon Groleau died of blunt trauma to the head causing head and brain injuries. According to a pathologist, who performed the autopsy on Sharon's body, such a wound would have been inflicted by a long, hard and probably round object.
An investigation of the homicide scene by the police revealed that blood which was later identified as Sharon's was splattered on the walls of the apartment. A child's blouse splattered with blood was also found rolled up in a towel. The blood was later identified as possibly that of defendant's ex-wife. Tests for the presence of blood were also conducted on laundry items defendant left in his parents' washing machine, and the results were negative. Same was true for items retrieved from the burned-out trash.
Defendant's apartment showed no signs of forced entry. No dusting for fingerprints took place. The time of the homicide was established by the coroner at around 10 a.m. by the testimony of a next door neighbor who had heard some pounding in defendant's apartment around that time.
At about 4:15 p.m. on the afternoon of January 27, 1985, defendant was transported to the sheriff's office in Waukegan, where, after receiving his Miranda rights, he was interrogated by two officers regarding the events of that day. One of the officers testified at trial that during the interrogation defendant had made several noteworthy comments. In response to a request for a statement, defendant responded, "Why do you want a statement from me when you already know what happened?" He further commented, "I have no regrets," and wanted to know "what's going to happen to my baby." According to the officer, defendant inquired as to how many people in Lake County get the death penalty. Defendant in his testimony acknowledged making these statements but claimed that they were taken out of context.
On February 4, 1985, eight days after the homicide, defendant was arrested and charged with murder. Defendant pleaded not guilty. The jury returned a murder verdict from which defendant appeals.
Defendant contends on appeal that, among other things, the trial court erred in not excluding the hearsay testimony of the State's witness with regard to a general Discussion concerning "ex-wives." We agree.
The last witness called by the prosecution was Efrain Candelaria, a fireman, who worked at the same station house as defendant. Over defense objections, Candelaria testified that two weeks prior to defendant's ex-wife's death, he overheard a conversation at the station house, defendant being one of the participants. Candelaria did not specifically recall what each one of the three participants to the conversation had said. He recalled though that one of the firemen had made the comment that "you could get rid of your wife by either an injection or somebody breaking in and hitting her over the head." On redirect examination, Candelaria testified that he did not come forward with this information until one week prior to trial because he was afraid for his family, but that his conscience bothered him, and, after consulting with his wife and his priest, he was persuaded to inform the authorities. Candelaria's testimony regarding the conversation was not entirely corroborated by the three participants. The three of them remember that there was a conversation regarding the fact that ex-wives ...