APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION
516 N.E.2d 440, 162 Ill. App. 3d 1080, 114 Ill. Dec. 285 1987.IL.1572
Date Filed: October 21, 1987; As Amended April 26, 1988.
Appeal from the Circuit Court of Cook County; the Hon. Richard J. Petrarca, Judge, presiding.
JUSTICE FREEMAN delivered the opinion of the court. WHITE, J., concurs. JUSTICE RIZZI, specially Concurring.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE FREEMAN
Defendant Geoffrey Freeman was charged by information with three counts of murder (Ill. Rev. Stat. 1979, ch. 38, pars. 9-1(a)(1), (a)(2), (a)(3)), one count of armed robbery (Ill. Rev. Stat. 1979, ch. 38, par. 18-2), and other offenses. After a jury trial on the murder and armed robbery charges, defendant was convicted of both offenses. A death penalty sentencing hearing was held. The jury did not reach a unanimous verdict on the death penalty. The trial court thereafter sentenced defendant to natural life imprisonment. Defendant then filed a notice of appeal. The State Appellate Defender was appointed to represent defendant on appeal and has filed a brief on his behalf. Defendant has filed a pro se brief raising additional issues on appeal.
Defendant and his counsel raise the following contentions on appeal: (1) the "Witherspooning" of prospective jurors during voir dire questioning resulted in the selection of a jury which failed to represent a fair cross-section of the community and which was biased in favor of the prosecution; (2) defendant was denied his right to an impartial jury drawn from a fair cross-section of the community where the State used its peremptory challenges to exclude black citizens solely on the basis of race; (3) Cook County, being a "home rule" unit, does not have the power to define and provide for the punishment of a felony; (4) the trial court erred in not granting defendant's motions to quash arrest and suppress evidence; (5) the trial court erred in not granting defendant's motion to dismiss the information; (6) the trial court erred in denying defendant's motion to waive his presence for a part of trial; (7) the trial court erred in denying defendant's motion to subpoena the employment records of certain police officers; (8) the testimony of Sylvia Allen was improperly given as a result of monetary compensation provided her by the prosecutor; (9) defendant suffered prejudice as a result of the prosecutor's excessive references, during opening and closing statements, concerning the deceased's family members, where such references were made solely to inflame the passion of the jury; (10) the trial court erred in not granting a mistrial based on pretrial publicity of the case; (11) the trial court erred in allowing a juror to remain on the jury after he was contacted by someone who claimed to represent the Cook County sheriff's office; (12) the trial court erred in allowing various instructions to be tendered to the jury over defendant's objections; (13) the trial court erred in denying defendant's motion to dismiss his attorney; (14) the trial court erred in failing to order that defendant be examined by a psychiatric expert; and (15) the trial court erred in denying defendant's motion to dismiss and discharge, where the State proceeded against defendant on a burglary charge solely as a means of securing a conviction to use in aggravation against defendant on the murder charge.
For the reasons stated below, we remand this matter with instructions to the trial court.
The evidence at trial indicated the following. On January 22, 1981, at about 5:30 p.m., the victim, 71-year-old Madeline Mullennix, was driving her automobile from Frankfort, Illinois, to her home in Blue Island, Illinois. A short time before, Madeline's two sons, Charles and Vernon, had purchased a house for their mother in Frankfort. Madeline was staining some kitchen cabinets at her new house just before leaving. Before she left the Frankfort house, Madeline told her son Charles, who was at the house with her, that she was going to stop for a sandwich at 147th and Kedzie on her way home.
The next day, Friday, January 23, Charles Mullennix attempted unsuccessfully to reach his mother on the telephone. He called a cousin who had a key to his mother's apartment in Blue Island. Charles and his cousin met, entered the apartment, and found that Madeline had not been home. Charles then called his brother and the Blue Island police. Charles and Vernon began looking for their mother and her car, a 1978 Ford Thunderbird. They took different routes between Frankfort and Blue Island and also looked in surrounding areas. They were unable to locate Madeline or the car on Friday or after continuing their search the next day.
On Sunday, January 25, Vernon resumed his search and saw his mother's car parked on Halsted Street in front of a grocery store. Vernon got the license plate number of the car and circled the block three times. After he circled the third time, the car was gone. At trial Vernon testified that he had not approached the car since he was on crutches and was afraid. The license plate number on the car, number ZT906, was not his mother's license number. Vernon went to the Calumet Park police station and reported the license number he saw on the car. The license plates were registered to Jack Burke, who lived at 124th and Perry. Vernon went to that location but did not see his mother's car.
On Monday, January 26, Vernon and Charles went to the Kensington police station, and agreed to meet a squad car at 124th and Perry. On the way there, the brothers found their mother's car parked at 123rd and Lafayette. They informed police. The brothers were certain the car was their mother's since it had a distinctive Swedish bumper sticker and a broken louver on it. The license-applied-for sticker on the front windshield had defendant's name on it. Madeline Mullennix' Blue Island sticker was no longer on the car. The police broke into the car and recovered an umbrella, a cane, some clothing, and a key chain. The umbrella and key chain belonged to Madeline. A vest was found with defendant's driver's license inside it. Additionally, a bullet was found in the armrest of the right front door, and another bullet was found under the right front seat. Police also found reddish stains which appeared to be blood on the right front lower portion of the door, on the right front seat, on the side of the seat, and on the carpeting between the door and the seat.
Police officers Murphy and Tracy had been instructed to go to 115th and Normal Street to meet defendant on the afternoon of January 26. When the officers arrived at that location, defendant approached them and said, "I'm Geoffrey Freeman. You're looking for me?" Defendant was arrested and read his Miranda rights, which defendant indicated he understood. Defendant told Murphy he had purchased the car from a man for $2,500. The officers then drove defendant to 123rd and Lafayette. Murphy told defendant he thought defendant had lied about the car. Defendant admitted he lied, and then said, "Andrew Burke killed the old lady" who owned the car. Defendant told Murphy that Burke worked at the Secretary of State's office. Murphy went to that office and arrested Burke. Defendant also told Murphy where the murder weapon could be found. Murphy recovered the gun, which had two expended cartridges, and a holster from a duct in the basement of a house at 124th and Perry. Defendant thereafter directed police officers Darling and Tracy to Madeline Mullennix's body, which was located in a field at 134th and Maryland.
Darling spoke with defendant and told defendant that his story did not make sense. Defendant again admitted that he lied. Defendant then told police the following. Andrew Burke had picked up defendant in the Thunderbird on Thursday and they drove around for a while. Burke then drove to 134th and Maryland and pulled a woman out of the trunk. The woman was still alive then, and Burke dragged her into the bushes and shot her.
After defendant finished his account of the events, he was taken to the Fifth District police station. Later that day, Darling recovered from a house at 12415 South Stewart two license plates registered to Madeline Mullennix and a pair of blue jeans belonging to defendant. Defendant had been staying at the house on Stewart Street with Derrick Allen, who resided there.
On Monday, January 26, police officer McGuire and his partner picked up Andrew Burke at the Fifth District police station and went to Area 2 Violent Crimes, where they placed Burke in an interview room. Defendant was in a separate interview room at the station. McGuire and his partner spoke with defendant in the interview room. They advised defendant of his Miranda rights. Defendant responded that he understood his rights and would talk with the officers. McGuire told defendant that he knew what defendant had told Officers Murphy and Darling. Defendant then told McGuire and his partner essentially the same story he had told the other officers.
After McGuire spoke with defendant, he went to the other room and interviewed Burke. McGuire then returned to the room where defendant was sitting and told defendant what Burke had told him, and asked again what had happened. Defendant told McGuire generally the same story he had told him before.
McGuire then called the State's Attorney's office. Assistant State's Attorney Farrell came to the police station and interviewed Burke. Farrell then spoke to defendant, after first advising him of his Miranda rights. Defendant stated that he understood his rights and would speak to Farrell. Defendant told the same story he had related before. Farrell told defendant that he did not believe him. Defendant responded that it was the truth.
Farrell then brought Burke into the room where defendant was being questioned. Burke told defendant the same story that Burke had told Farrell before. Farrell then spoke again to defendant, outside of the presence of Burke, and defendant indicated the following. Defendant had obtained the gun that was used to kill the victim, since he and Burke were going to steal a car. There were two shells in the gun. He and Burke were together in a car. Burke was driving and defendant was in the passenger seat. They saw Madeline Mullennix's car near a restaurant and waited for her to drive away. They followed her to an area of a street that was relatively dark. Then Burke rammed the victim's car and feigned an accident in order to get her to stop the car so they could steal it. The victim did not stop immediately, but eventually she did.
Defendant got out of the car and approached the driver's side of the victim's car. He was talking to the victim when Burke came up to the car and pulled open the driver's-side door. Burke then instructed defendant to pull out the gun. The victim was holding on to the steering wheel. Burke pulled her left arm away. Mullennix then started blowing the horn with her right arm. Burke reached in and took hold of her right arm and pulled her body towards the car door. Burke told defendant to pull out the gun. Defendant took the gun out of his waistband and held it about waist high. Defendant stated that his body then "banged up" against the gun, and the gun discharged accidentally. The bullet struck the victim in the left side of the chest.
Defendant indicated that Burke then pushed Mullennix toward the passenger side of the car. Mullennix was still alive at that time. Burke told defendant to drive the victim's car, and to follow Burke, who was driving his own car. Defendant stated that he wanted to leave the victim and her car near a hospital that they had passed, since she was badly injured. Burke, however, told defendant to keep following him, and defendant did so.
Defendant and Burke drove to 134th and Maryland. Burke then approached the car that defendant was driving and told defendant that they would leave the victim there. Burke handed defendant the gun and told defendant to shoot the victim again. Defendant told the police that he knew he had only one bullet left in the gun at this time and that he intended to shoot the gun at the passenger window. Just as he was about to shoot the gun, Burke noticed that defendant intended to fire the gun out the window. Burke stated, "You have to kill her," and slapped defendant's right hand, causing the gun to discharge and the bullet to strike the victim in the head. Defendant and Burke then took the victim's body out of the car and put it in the vacant lot. Defendant stated that he wanted to have the stolen car taken to a "chop shop" and sold in parts. Burke, however, told defendant that it was not necessary to have the car cut up, since Burke would be able to secure registration from the Secretary of State's office to indicate defendant as the owner.
Defendant gave a statement relating these events to the assistant State's Attorney in the presence of a court reporter. At trial, the transcript of defendant's statement was read to the jury. It also was established at trial that the bullets that killed the victim were fired from a gun taken from the home of Roniad Tucker at 12415 South Stewart, where defendant had stayed for a couple of weeks prior to his arrest in January 1981. Two witnesses also testified at trial that they had seen defendant driving the victim's car between January 22 and 26, 1981. Additionally, Larry Anderson testified that defendant had called him within two weeks after defendant's arrest and asked Anderson to state, if asked, that defendant was with Anderson at Anderson's home on January 22, 1981.
During the course of the trial, the jury was taken to the area where Madeline Mullennix' body was found. At the close of the State's case, the defense declined to present any evidence. Defendant waived closing argument. The first two issues in this appeal are raised by the State Appellate Defender. Defendant in his supplemental pro se brief has raised the remaining issues. I
Defendant initially asserts that the "Witherspooning" of prospective jurors during voir dire questioning resulted in the selection of a jury which failed to represent a fair cross-section of the community and which was biased in favor of the prosecution and therefore prone to convict. Defendant notes that prospective jurors were examined regarding their attitudes toward the death penalty, and as a result, nine jurors were excused for cause because of their attitudes against the death penalty.
Defendant asserts that under Witherspoon v. Illinois (1968), 391 U.S. 510, 20 L. Ed. 2d 776, 88 S. Ct. 1770, a juror may not be excluded for cause simply because he or she is opposed to the death penalty, but exclusion for cause may occur only with respect to jurors who are so opposed to the death penalty that they make it "unmistakably clear" during voir dire that they would automatically vote against the death penalty without regard to the evidence that might be developed in the case before them, or who make it "unmistakably clear" during voir dire that their attitude toward the death penalty is so strong that they could not make an impartial decision on the question of the defendant's guilt. 391 U.S. 510, 522 n.21, 20 L. Ed. 2d 776, 785 n.21, 88 S. Ct. 1770, 1777 n.21.
Defendant also notes that the Eighth Circuit Court in Grigsby v. Mabry (8th Cir. 1985), 758 F.2d 226, held that "Witherspooning" prospective jurors violates a defendant's sixth amendment right to a fair and impartial jury and his fourteenth amendment right to due process of law. Defendant also references Justice Simon's Dissent in People v. Wright (1985), 111 Ill. 2d 128, 170-79, cert. denied (1987), 479 U.S. 1101, 94 L. Ed. 2d 179, 107 S. Ct. 1327, which is in accord with the Grigsby holding.
Defendant asserts that those opposed to the death penalty are an identifiable and sizable portion of the community. Their "actual purposeful" exclusion by the use of challenges for cause and peremptory challenges, defendant asserts, denied him his right to a fair, representative jury and violated the principles of Duncan v. Louisiana (1968), 391 U.S. 145, 20 L. Ed. 2d 491, 88 S. Ct. 1444, and Taylor v. Louisiana (1975), 419 U.S. ...