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07/31/87 the People of the State of v. Donald Troy Phillips

July 31, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

DONALD TROY PHILLIPS, DEFENDANT-APPELLANT



Before entering the office, defendant placed the knife over his shirt so Roberts would see it. Roberts was on the telephone. Freda Garray, a supervisor at Northwestern Hospital, testified that at about 6:30 a.m. on February 29, 1984, she received a call from Roberts asking for help for his shift. As they were talking, Roberts told her to hold on but he did not push the hold button. She then heard Roberts say, "Oh, my God. No." Another witness, Irma Powers, who was in the office across the hall from Roberts, also saw defendant enter the office while Roberts was on the telephone. She saw the defendant hitting Roberts in the chest with something. Another witness, Zephyr Woods, was working four to five feet away from the office when she heard a lot of screams. She turned around and saw defendant in the office with a blade in his raised hand. Another witness, Beatrice Asa-Atiemosh, was working in the kitchen area when she heard shouting. As she got closer to Roberts' office, she saw the defendant standing over the victim making a stabbing motion. Roberts had blood on his face while he was on the floor trying to get up. Dr. John Ruge, who was on his way to the kitchen area, also heard people screaming. He approached Roberts' office, where he saw defendant with a knife in his hand and his hand raised and Roberts was slumped over the desk.

APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

512 N.E.2d 734, 159 Ill. App. 3d 142, 111 Ill. Dec. 345 1987.IL.1097

Appeal from the Circuit Court of Cook County; the Hon. Paul A. O'Malley, Judge, presiding.

APPELLATE Judges:

JUSTICE LORENZ delivered the opinion of the court. PINCHAM and MURRAY, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LORENZ

Following a jury trial, defendant was found guilty of murder and was sentenced to a term of imprisonment for 38 years. He appeals urging the following: (1) his right to due process was violated by the denial of his request that the jury be instructed that it might convict him of voluntary manslaughter if it found he acted under a sudden and intense passion resulting from serious provocation; (2) his right to due process and the right to a trial by jury were denied when the trial court refused to require the jury to return a verdict as to the offense of voluntary manslaughter; (3) he was denied effective assistance of counsel; (4) the trial court abused its discretion in admitting a photograph of the deceased which depicted a surgical incision; (5) he was prejudiced and denied a fair trial by the prosecutorial comments during closing argument; and (6) the trial court abused its discretion in imposing a term of imprisonment of 38 years for murder.

We reverse and remand.

Testimony at the trial established the following. On February 27, 1984, the defendant, who worked in a kitchen at Northwestern Memorial Hospital, had an argument with his supervisor, Donald Roberts, at work. It is undisputed that defendant believed Roberts had been unfairly harassing him about his work performance. The following day the defendant did not go to work because he was "still angry" at his supervisor, and when defendant returned on February 29, 1984, he was assigned to work in the dishroom. He changed into his white kitchen uniform and took a pair of rubber gloves to the dishroom. He noticed Roberts sitting in his office while on his way to the cafeteria to eat. The outer wall of the office was glass from about three feet to the top. Before reaching the dishroom, the defendant stopped into the salad room to see a co-worker. However, the co-worker had not yet arrived. While in the salad room, the defendant saw a knife on top of a table which he put into his pants, concealing the knife from view. He then went to Roberts' office.

About 6:40 a.m. security guards Ron Gann and James Gray received a radio message of a man with a knife in the Passavant kitchen. As Gann approached the office he saw blood on the walls and Roberts "crumpled on the floor." Both of them saw the defendant with a knife in his hand and saw him come down with a knife and stab the victim in the lower right portion of his back. Gann then opened the office door and yelled to the defendant in order to divert his attention away from Roberts. After opening the door he saw blood on the desk, the walls, and on Roberts. As Gann entered the office the defendant stepped over Roberts and started towards the door with the knife in his hand. As he approached Gann, Gann put his arms up and backed out the doorway, trying to give the defendant a path to walk out.

About this time, security guards Doughty and Luke, who had also heard the radio broadcast of a man with a knife in the kitchen, arrived at Roberts' office. When they arrived they saw the defendant coming out of the office with a knife in his hand and blood on his uniform. As they approached the defendant, the defendant told Doughty to "get the f -- out of the way or I'll do the same thing to you as I did to him," and "They're not going to f -- with me no more." At this point, Doughty stepped back to let defendant out.

As he left the office defendant passed the security guards, went out of the kitchen area, out of the hospital and on to the street. He was pursued by security guards Gann, Doughty and Luke. Once on the street Luke took out his pistol and ordered the defendant to halt and to drop his knife. Defendant was handcuffed and taken into custody. At this time, Luke noticed that the defendant was wearing two rubber gloves covered with blood.

After taking possession of the knife, the guards took the defendant to the hospital security office. Defendant was then advised of his Miranda rights and indicated that he understood them. He told Gann and Luke that "they kept harassing me everyday" and "they kept making fun of me." The defendant was then transported to Area Six Violent Crimes, where he was interviewed by police detectives Villardita and Whalen and again advised of his Miranda rights before he was questioned. Defendant again indicated he understood his rights. He then told the detectives what happened in a narrative form, and this interview lasted about 15 or 20 minutes.

At about 1 p.m. Assistant State's Attorney Lawrence Lykowski arrived at Area Six and interviewed the defendant in the presence of Villardita. Defendant was again advised of his Miranda rights before speaking to Lykowski and again said he understood his rights. He also was presented a form containing the Miranda rights and was asked to sign this form if he understood his rights. Defendant read those rights out loud and signed the form. Defendant then told Lykowski and Villardita in narrative form what happened that morning in the hospital. Villardita ...


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