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06/19/87 the People of the State of v. Leon L. Fenderson

June 19, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

LEON L. FENDERSON, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

510 N.E.2d 479, 157 Ill. App. 3d 537, 109 Ill. Dec. 611 1987.IL.856

Appeal from the Circuit Court of Jefferson County; the Hon. Lehman Krause, Judge, presiding.

APPELLATE Judges:

JUSTICE HARRISON delivered the opinion of the court. WELCH and KASSERMAN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HARRISON

Defendant, Leon L. Fenderson, was convicted after a jury trial in the circuit court of Jefferson County of murder and concealment of a homicidal death. He was sentenced to concurrent prison terms of natural life for murder and five years for concealment of a homicidal death. On appeal he contends (1) he was not proved guilty beyond a reasonable doubt on the concealment charge, (2) the court erred in admitting evidence of another crime committed by defendant, (3) the court erred in admitting into evidence statements made by the victim to police at the time of an earlier physical confrontation with defendant, (4) he was prejudiced by the prosecutor's reference to defendant in closing argument as an "animal" who chose to live off the support of others, (5) the court erred in refusing to give the jury the second paragraph of the circumstantial evidence instruction, (6) the court erred in failing to instruct the jury on involuntary manslaughter, and (7) the court relied on improper aggravating factors in sentencing. These seven issues are raised in a brief prepared by the office of the State Appellate Defender. Defendant has also filed a pro se brief raising additional issues. He contends he received ineffective assistance of counsel in that his attorneys failed to investigate his mental illness as a possible defense and that the court erred in allowing the State to amend the indictment. For the reasons which follow, we reverse defendant's conviction and sentence for concealment of a homicidal death and affirm his conviction and sentence for murder.

Defendant was accused of murdering Mary Rhodes on May 1, 1985. Her body was found in a shower stall in Room 16 of the Lawrence Motel in Mount Vernon by paramedics who responded to a call made by defendant.

The State introduced into evidence statements made by defendant to police on the morning of May 2, 1985. Defendant gave them a lengthy statement which was transcribed by Sergeant Steve Lamar of the Mount Vernon police department, and this written statement was signed by defendant. In this statement, defendant told police he and Rhodes had been living in Room 16 at the Lawrence Motel. They had been in Mount Vernon for about two weeks. Since July of 1984, Rhodes had been working as a prostitute for defendant, and most recently she had been working as a prostitute at a truck stop in Mount Vernon. On May 1, defendant was at the motel working on his car. He and Rhodes talked about Rhodes' "turning tricks" at the truck stop, with Rhodes saying she wanted to get there early because the police arrive around 11 p.m. Defendant stated that both he and Rhodes had been drinking during the course of the day and that Rhodes "had gotten drunk." Between 7 and 8 p.m., defendant left the motel to go to a discount store, and he also bought a pint of rum at a liquor store. From there he went to the "project area" in hopes of buying marijuana. He returned to the motel, where he and Rhodes again discussed her activities as a prostitute. They drank rum, then both went to sleep on the bed. They awoke approximately an hour later. Rhodes was on the floor, a "little drunk" and a "little drowsy," according to defendant. He told her it was about time for her to go to the truck stop. Defendant poured water on her, telling her she was "getting a free shower." Rhodes then went into the shower and defendant could hear the water running. He went back to sleep. Between 11:30 p.m. and midnight, defendant awoke to hear the shower still running. Steam filled the room. He found Rhodes on the floor of the shower, her skin peeling. He knew she was dead. He talked on the phone with his Aunt Wanda and Leroy McCall, then called an ambulance and the police. He had told McCall that it appeared Rhodes "fell in the shower." Also in this written statement, defendant stated he broke one of the chairs in the room that morning while he was jumping on it.

Sergeant Lamar, in addition to testifying regarding the written statement, also testified that after the written statement had been completed, defendant commented he had slapped Rhodes twice and kicked her once on the night she died.

Jerry Volkert, a detective captain with the Mount Vernon police department, testified he questioned defendant in the early hours of May 2, prior to the taking of the written statement. Volkert's testimony of what defendant told him was generally consistent with the written statement. However, defendant told Volkert he had never struck Rhodes. When Volkert asked defendant if it could be possible someone had been in the room that night, defendant replied in the negative, explaining he was a light sleeper.

The State's evidence also included testimony from Frank Cooper, a crime-scene supervisor for the Illinois State Police, who testified that he observed the victim's body in the shower stall. The victim's outer layer of skin on her face, neck, upper torso and arms was "loose." Cooper also observed blood on the bedding, carpeting and a wall and saw a "gouge" on one wall. He testified that this mark on the wall was consistent with having been made by the leg of the chair found by the dumpster. Cooper further stated that the cold water supply to the shower was in working order.

John Richardson, a deputy coroner, arrived at the scene approximately 40 minutes after defendant called for an ambulance. Richardson testified he observed the victim's body in the shower, and that the victim appeared to be scalded over 20 to 25% of her body, with the skin peeling on her head, shoulders and elbows. Richardson testified that the body evidenced signs of rigor mortis, explaining that heat accelerates this process. He also observed blood on the rug, on the bed, and in the shower stall. Richardson did not notice any water in the shower area.

Andrew Wist, a forensic scientist with the Illinois State Police, testified that he performed tests on the bloodstains found on the bedspread, sheets and carpeting taken from Room 16, and also tested blood found on a jacket and pants belonging to defendant. The tests on the stains on the jacket were inconclusive, but Wist testified that the blood on all the other items could have come from the victim but could not have come from defendant. Wist further testified that the way blood was splattered on defendant's jacket indicated a struggle may have taken place.

Dr. Victoria Nosovitsky, who performed an autopsy on the victim's body, testified that the cause of death was blunt trauma to her head, causing hemorrhaging in the brain. She found evidence of several severe blows to the victim's head. Dr. Nosovitsky also testified there were signs of hemorrhages in the victim's chest and legs, and found that two ribs were broken. The injuries did not cause immediate death, according to Dr. Nosovitsky. She found that Rhodes suffered second-degree burns on 20% of her body, but that these burns did not cause the death. She believed the burning of the skin occurred or at least began while the victim was still alive. Dr. Nosovitsky testified that the burns concealed some of the superficial evidence of the injuries.

Kisher Patel, the business manager at the Lawrence Motel, testified defendant and a woman checked into the motel on April 17, 1985, and were assigned to Room 16. They checked out on April 23, but returned on April 24, and were again given Room 16. Patel testified he personally cleaned the room on April 23 and saw no blood on the floor or gouges on the wall. At approximately 3 p.m. on May 1, the victim came to the motel office to get some soap. Patel noticed nothing unusual about her at that time. The victim called the office at approximately 5:30 p.m. to inquire about the charge for a long-distance phone call she had made. Patel noticed nothing unusual about her voice. He testified that on May 2, when he went to Room 16, he observed on a wall a mark which was not there when he cleaned on April 23 and also found that one of two white chairs normally in the room was missing. Police showed Patel a broken white chair found near a dumpster on the motel grounds, which Patel identified as having come from Room 16. In other testimony, Patel stated he never saw defendant and the victim fighting. He had seen defendant near defendant's car at approximately 7 p.m. on the evening of May 1, and he appeared normal at that time.

Wanda Smith, an aunt of defendant's, testified defendant called her sometime after 10 p.m. on May 1. He told her he thought Rhodes was dead. Mrs. Smith told defendant to call an ambulance. She testified that defendant told her he had gone out to a liquor store and that Rhodes was going to take a shower. When he returned, he heard water running and lay down on ...


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