APPELLATE COURT OF ILLINOIS, THIRD DISTRICT
511 N.E.2d 1361, 159 Ill. App. 3d 397, 111 Ill. Dec. 66 1987.IL.1117
Appeal from the Circuit Court of Will County; the Hon. Angelo F. Pistilli, Judge, presiding.
JUSTICE REINHARD delivered the opinion of the court. NASH and UNVERZAGT, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE REINHARD
Defendant, James L. Treece, and his codefendant, William L. Braid, were charged in an indictment in Iroquois County, Illinois, with eight counts of murder (Ill. Rev. Stat. 1983, ch. 38, pars. 9-1(a)(1), (a)(3)), one count of armed robbery (Ill. Rev. Stat. 1983, ch. 38, par. 18-2(a)), two counts of aggravated criminal sexual assault (Ill. Rev. Stat., 1984 Supp., ch. 38, pars. 12-14(a)(1), (2)), two counts of aggravated kidnapping (Ill. Rev. Stat. 1983, ch. 38, pars. 10-2(a)(3), (a)(5)), one count of home invasion (Ill. Rev. Stat. 1983, ch. 38, par. 12-11(a)), and two counts of conspiracy (Ill. Rev. Stat. 1983, ch. 38, par. 8-2). A severance of the two defendants' cases was granted, and, in addition, defendant's place of trial was transferred to Will County. Following a jury trial, defendant was found guilty of murder, aggravated criminal sexual assault, aggravated kidnapping, armed robbery, and conspiracy. He was sentenced to a term of natural life imprisonment for murder, concurrent extended terms of imprisonment of 60 years each for armed robbery, aggravated criminal sexual assault, and home invasion, and a concurrent extended term of imprisonment of 30 years for aggravated kidnapping. The conspiracy conviction was vacated. The case was transferred to this court from the Appellate Court for the Third District for purposes of appeal.
Defendant raises the following issues on appeal: (1) whether the prosecutor's use of peremptory challenges to remove black members of the venire violated his constitutional rights to a jury drawn from a fair cross-section of the community and to equal protection; (2) whether the prosecutor's use of peremptory challenges to remove young persons under age 30 from the jury violated his constitutional rights; (3) whether the Illinois aggravated criminal sexual assault statute is unconstitutional; (4) whether the trial court erred by allowing the State's motion pursuant to Supreme Court Rule 413(a)(vii) (107 Ill. 2d R. 413(a)(vii)) for the taking of hair, blood, and saliva samples from defendant without complying with constitutional requirements; (5) whether the trial court erred in striking certain defense testimony as a sanction for an alleged discovery violation; (6) whether the trial court abused its discretion by allowing gruesome photographs to go to the jury; (7) whether the trial court erred in imposing extended-term sentences for the convictions of offenses other than murder; and (8) whether the sentence of natural life imprisonment was grossly disparate with his codefendant's sentence of 50 years' imprisonment and should be reduced.
As the principal issues raised on appeal involve juror selection, pretrial discovery, the constitutionality of a statute, and sentencing, we need not detail entirely the lengthy trial evidence. The charges against defendant, a male Caucasian who was 18 years old at the time of the offense, all arise out of the abduction and shooting death of 15-year-old Jessica Hosick on December 26, 1984. The main testimonial evidence against defendant was given by his codefendant, William L. Braid, who testified under a promise from the State that if he testified truthfully and later was found guilty of murder, the State would recommend that he receive no more than 80 years' imprisonment.
Braid, who was age 25, testified that he was with defendant on December 26, 1984, at the apartment defendant shared with his father in Watseka, Illinois. Defendant told him he was going to go over to the apartment next door and ask the girl to come over, have a few drinks, and have sex with her. He stated that defendant later got out a .38 Smith and Wesson handgun, put it inside his coat, and went to the apartment next door. Braid testified that defendant said he was going to ask the girl next door if he could use the telephone, but came back and said she didn't have a telephone. Defendant then said he was going to go over there and ask if he could use a cup of sugar and then returned following behind the victim, Jessica Hosick, with the gun pointing at her.
Braid testified that they took the victim into the bedroom of the apartment and that defendant told her to take her clothes off. She was then tied to the bed. Defendant left the room, and Braid attempted to have sex with her, but was unable because he didn't have an erection. Braid then ejaculated into her mouth. Defendant entered the bedroom, and Braid left.
Later, Braid reentered the bedroom. Defendant was getting dressed, and Braid cut the socks tying the victim to the bed with defendant's locked-blade knife. Defendant then told the victim to get dressed, that they were going for a ride. They left in the truck with Braid driving, the victim in the middle, and defendant on the passenger side. As they left Watseka, defendant asked the victim if she had any money in her wallet. Defendant then ordered her to take the money out and hand it to Braid, which she did.
Braid testified that defendant told him to turn off Route 24 at a sign that said "camping," that he drove down the road 10 to 15 minutes, and that he stopped in a wooded area. Defendant was still pointing the gun at the victim, and they all got out of the truck. Defendant then ordered the victim to remove her pants and underwear. The victim complied and then put her shoes back on. Braid testified that he then had anal intercourse with the victim and that defendant then ordered her to take off the rest of her clothes and to walk toward a tree. Defendant tossed the clothes in a ditch.
Braid stated that the victim stood, wearing only socks and shoes, with her back against the tree. While he held a lantern from his truck shining toward the tree, defendant shot her in the left shoulder. Braid testified that the victim then fell to a kneeling position and that defendant then fired several more shots from approximately 15 feet away. Braid and defendant then left in the truck and had pizza at Monical's Pizza in Watseka. The victim's body was not found until December 31, 1984.
Dr. James Blanding testified that he performed an autopsy on the body the same day the body was found. He identified photographs of the victim showing the entrance and exit wounds of the four bullets which hit the victim in the right side of her upper lip, her right cheek, the left side of her neck and her left shoulder. Blanding testified that none of the wounds would have proved immediately fatal, but that the victim would have bled to death over a period of 30 minutes due to the damage done by the bullets. He also identified a photograph showing an obvious tear in the inside lining of the victim's vagina which he stated was of a type commonly seen in forceful-type sexual intercourse and a photograph showing multiple superficial tears indicating forceful entry into the victim's rectum during intercourse.
Ronald Eugene Wall, a sergeant in the Iroquois County sheriff's department, testified that two guns were recovered from defendant's father at his apartment on December 31, 1984, one of them a .38 caliber Smith and Wesson chrome revolver. He also identified a locked-blade knife found in defendant's suitcase and a lantern recovered from Braid's pickup truck.
James Roberts, a forensic scientist, testified that he had determined that three bullets, one found under the victim, one imbedded in the tree with hair around it, and one removed from the victim's back, were fired from the .38 caliber Smith and Wesson revolver recovered from defendant's apartment.
Diane Schneider, also a forensic scientist, testified that semen samples were taken from the victim and also from a brown blanket found in defendant's apartment. However, no males could be excluded as sources of the semen present. She also did hair comparisons using samples obtained from the victim, defendant and Braid. Briefly summarized, she testified that a head hair consistent with that of the victim was found on a tan sheet and another on a pillowcase removed from defendant's apartment; that two pubic hairs consistent with those of the victim were found on a blue blanket removed from defendant's apartment; and that head hair consistent with that of defendant was found on the victim's T-shirt and panties. She also testified that fibers consistent with the brown blanket removed from defendant's apartment were found in the victim's panties, socks, and shoes.
Other testimony at trial showed that defendant and Braid were seen at Monical's Pizza around 9:15 p.m. on December 26, 1984, and that defendant left for Texas by bus on December 29, 1984, although he had a reservation to fly there on January 12, 1985.
Joseph B. Mathy, sheriff of Iroquois County, was called to testify by the defense. He stated that it was 18 miles from defendant's apartment to the spot where Braid testified they turned around on their way to Kankakee and would take approximately 23 minutes each way. The sheriff testified that it was 14.4 to 14.5 miles from defendant's apartment to the murder scene and would take approximately 20 minutes to drive each way.
Defendant's father, Jerry Treece, testified that he was a truck driver and left the morning of December 26, 1984, and did not return until December 28, 1984. He stated that defendant had been wanting to move to Texas for three or four months and had asked him again December 28, 1984, if he could leave early. Treece also testified as to time tests he and defense counsel conducted. He stated that it took 54 minutes to travel from the apartment to the murder scene and then back past the apartment to Monical's Pizza. During cross-examination Treece referred to handwritten notes made by defense counsel during the time tests. The State asked that the testimony be stricken because the defense had not disclosed the notes during discovery. The court granted the motion.
Defendant testified that he had known William L. Braid for about two weeks prior to Christmas 1984 and that he had shown Braid his father's .38 caliber gun about a week before Christmas. He stated that he was sick on December 26 and that Braid came to the apartment around 5 p.m. They watched television about an hour and then went to the store. After returning, Braid just dropped him off, and defendant stated he went inside, got sick again, and watched television. Braid came back in, but left while defendant was in the bathroom. Defendant stated he watched television until about 8:45 p.m., when he walked to the store to buy medicine. He saw Braid on his way home and went with him to Monical's Pizza. Defendant further testified that Braid told him on December 28, 1984, he had taken the gun that night while defendant was in the bathroom and had killed the girl.
Following the guilty verdicts, the trial court, after a sentencing hearing, found there was a mitigating factor, defendant's lack of a significant history of prior criminal activity, which was sufficient to preclude the imposition of a death sentence. The court imposed a natural-life sentence for the murder conviction after finding the murder was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty and finding one of the aggravating factors in subsection (b) of section 9 -- 1 of the Criminal Code of 1961 was present. The guilty verdict on the conspiracy count was vacated, and extended-term sentences were imposed on the remaining verdicts.
Defendant's first contention on appeal is that there was no proper basis for granting the State's pretrial discovery motion to permit the taking of hair, blood, and saliva samples from defendant so that this evidence was inadmissible. Defendant argues that (1) the motion was not the constitutional equivalent of a search warrant, (2) assuming that such a motion might be used in place of a search warrant, the fourth amendment requirement of oath and affirmation and probable cause were not met, and (3) the existence of an indictment does not present probable cause for a specific search not incident to arrest.
On January 14, 1985, three days after the indictment was returned against defendant, the State filed a motion pursuant to Supreme Court Rule 413(a) (107 Ill. 2d R. 413(a)) requesting an order permitting the taking of samples of pubic hair, chest hair, head hair, blood, and saliva from defendant. A hearing was held on the motion January 18, 1985, and defendant argued that the State had not met its obligation of establishing both some foundation for the request of this information and probable cause that these items were needed. The prosecutor responded that he had talked to a chemist ...