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12/21/87 the People of the State of v. James Foster

December 21, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE

v.

JAMES FOSTER, APPELLANT



Before addressing the defendant's specific objections to the testimony we would observe that section 9-1(e) of our death penalty statute allows the introduction of evidence during the sentencing hearing that would not ordinarily be admissible during the guilt phase of the trial. (Ill. Rev. Stat. 1983, ch. 38, par. 9-1(e); People v. Hall (1986), 114 Ill. 2d 376, 416; People v. Lyles (1985), 106 Ill. 2d 373, 414.) This court has stated that a sentencing Judge can "'. . . exercise a wide discretion in the sources and types of evidence used to assist him in determining the kind and extent of punishment to be imposed within the limits fixed by the law.'" (People v. Eddmonds (1984), 101 Ill. 2d 44, 65, quoting People v. Adkins (1968), 41 Ill. 2d 297, 300.) The only requirement for admission is that the evidence be reliable and relevant (People v. Perez (1985), 108 Ill. 2d 70, 88; People v. Davis (1983), 95 Ill. 2d 1, 43), as determined by the trial court within its sound discretion. People v. Lyles (1985), 106 Ill. 2d 373, 414; People v. Free (1983), 94 Ill. 2d 378, 423-24.

SUPREME COURT OF ILLINOIS

518 N.E.2d 82, 119 Ill. 2d 69, 115 Ill. Dec. 557 1987.IL.1889

Appeal from the Circuit Court of Kane County, the Hon. John L. Nickels, Judge, presiding.

APPELLATE Judges:

JUSTICE WARD delivered the opinion of the court. JUSTICE CUNNINGHAM took no part in the consideration or decision of this case. JUSTICE SIMON, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WARD

Following a jury trial in the circuit court of Kane County, the defendant was found guilty of the murder (Ill. Rev. Stat. 1985, ch. 38, par. 9-1) of Jacqueline Simmons. The State asked for the death penalty, and after a hearing, the circuit court found that there existed a statutory aggravating factor in that the murder was committed in the course of an aggravated criminal sexual assault (Ill. Rev. Stat. 1985, ch. 38, par. 9-1(b)(6)), and that there were no mitigating factors sufficient to preclude imposition of the death sentence. The court sentenced the defendant to death, but the sentence was stayed pending direct appeal to this court. Ill. Const. 1970, art. VI, sec. 4(b); 107 Ill. 2d R. 603.

On January 22, 1985, the defendant was charged by indictment in the circuit court of Kane County with intentional murder (Ill. Rev. Stat. 1985, ch. 38, par. 9-1(a)(1)), knowing murder (Ill. Rev. Stat. 1985, ch. 38, par. 9-1(a)(2)), and felony murder predicated upon the offense of aggravated criminal sexual assault (Ill. Rev. Stat. 1985, ch. 38, par. 9-1(a)(3)).

The State's principal witness was Theresa Williams, who shared an apartment with the victim and who told of the events leading to Simmons' death. She testified that on the evening of January 9, 1985, the defendant came to her apartment in Aurora several times looking for Simmons. The defendant seemed "upset and angry" and appeared angrier at each visit. At about 9:30 p.m., Simmons came home and the defendant appeared several minutes later with John Chapman. The defendant, Chapman and Simmons then left and drove to a liquor store where they purchased some wine, beer and gin.

When they returned to the apartment, the defendant was yelling at Simmons and she was screaming and crying. The defendant threw Simmons to the floor and began hitting and kicking her. After striking her several times, the defendant walked to the bathroom and Simmons went into the living room, where she was joined by Chapman and Williams. The defendant came in with a baseball bat and began striking Simmons with it while she sat on the living room couch. Williams described the bat as 24 inches in length and 2 to 3 inches in diameter with the rounded stem broken off. As the defendant struck Simmons with the bat, he cursed and accused her of "messing around" on him. Williams stated that Simmons pleaded with him to stop hitting her, but the defendant continued to strike her with the bat on her legs, arms and back.

At one point the defendant ordered Simmons to take her clothes off, which she did. Williams testified that the defendant told Chapman that he needed to examine Simmons' underclothes to see if she had recently had sexual relations with another man. The defendant took Simmons to the bathroom, where, Williams testified, the defendant beat Simmons while badgering her to admit that she was having sexual relations with other men. After being beaten, Simmons admitted having had sexual relations with another man.

The defendant and Simmons went to the living room, where the defendant ordered her to put her clothes on and "go out and make him some money." He ordered Williams to help Simmons put on her clothes and to wipe the blood from her mouth. As she attempted to do so, the defendant resumed striking Simmons with the bat, Williams testified, "like you would when you are playing baseball, [with] both hands."

Williams left the living room and went into the kitchen. When she returned Simmons was lying on her stomach with her pants pulled down and the bat partly inserted in her rectum. The defendant was kneeling behind her. Williams returned to the kitchen followed by Chapman and Tony Lloyd, Theresa Williams' boyfriend, who had just arrived at the apartment. The defendant entered the kitchen several minutes later holding the handle of the bat and, according to Williams, began "bragging" about how far he had inserted the bat handle.

Williams returned to the living room and found Simmons lying on the couch breathing irregularly and appearing to be suffering a seizure. She found a spoon and gave it to the defendant who placed it under Simmons' tongue in an attempt to control the seizure. Williams told the defendant that Simmons needed to be taken to the hospital but the defendant said that Simmons was drunk and that they should let her sleep it off. The defendant and Chapman then left to visit taverns but returned about 20 minutes later. When the defendant returned, Williams told him that Simmons was dead. The defendant attempted mouth-to-mouth resuscitation, but after several minutes gave up and threw his car keys to Lloyd telling him to call the paramedics.

Anthony Lloyd also testified on behalf of the State. He stated that when he entered the victim's apartment on the evening of January 9, 1985, at about 11 p.m., the defendant, holding a part of a broken bat in his hand, walked into the living room with Simmons. The defendant was staggering and "looked like he was high." Sitting in the kitchen with Chapman and Williams, Lloyd heard Simmons screaming and seven or eight times "some cracking sounds, like a bat hitting a ball." He testified that the defendant came into the kitchen a short time later and told Lloyd how he had inserted the bat into Simmons' rectum and indicated the depth to which he had inserted it.

Dr. Charles Conley, deputy coroner for Kane County, testified that he performed an autopsy on Jacqueline Simmons, which showed that she had suffered several blunt-trauma-type injuries to the head, chest, abdomen and legs; that the brain was swollen to a moderate degree; and that the victim's liver exhibited two lacerations which caused bleeding into the abdominal cavity. Dr. Conley also stated that he discovered a small laceration on the anus and an area of hemorrhage five inches from the anus. His opinion was that the cause of death was multiple blunt trauma, resulting in swelling of the brain and internal hemorrhage of the liver.

The State also had entered into evidence the defendant's written confession, and officers testified to the oral confession he gave at the Aurora police station following his arrest. Both confessions substantially corroborated the testimony of Williams and Lloyd.

Upon the jury's finding the defendant guilty of murder, and the entering of a judgment of conviction, the State asked for the death penalty. The court accepted the defendant's waiver of sentencing by jury, and after the first stage of the sentencing hearing, the court found that the defendant was subject to the death penalty being 18 years of age or older at the time of the murder and having had "actually killed" the victim in the course of a felony, to wit, aggravated criminal sexual assault (Ill. Rev. Stat. 1985, ch. 38, par. 9-1(b)(6)).

At the second stage of the sentencing hearing, the State presented evidence in aggravation, which included evidence of the defendant's previous convictions for misdemeanor battery, felony robbery, theft, and illegally possessing firearms. The State also presented testimony of several witnesses who described other crimes and acts of violence the defendant had allegedly committed. In mitigation, the defendant offered the testimony of various members of his family and friends who testified to his being kind, generous and a religious person. One of these witnesses, Earline Taylor, testified that she had had two daughters by the defendant, and that he has maintained a close relationship with the girls and assisted the children financially whenever possible. At the Conclusion of the hearing, the court found that there were no mitigating factors sufficient to preclude the imposition of the death penalty and sentenced the defendant to death. The cause comes before this court for direct review as our constitution provides (Ill. Const. 1970, art. VI, sec. 4(b)) and Supreme Court Rule 603 (107 Ill. 2d R. 603).

The defendant argues that his conviction should be reversed and a new trial ordered on several grounds. First, the defendant contends that the trial court erred in failing to suppress inculpatory statements he made at the Aurora police station following his arrest. The defendant states that he was arrested without probable cause and that the statements are inadmissible as "fruits" of the illegal arrest. Wong Sun v. United States (1963), 371 U.S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407; People v. Higgins (1972), 50 Ill. 2d 221, 227.

Prior to trial, the defendant moved to quash his arrest and suppress evidence. The evidence at the hearing was that at approximately 1 a.m., on January 10, 1985, Patrol Sergeant John Richmond and Officer Stephen Bonnie of the Aurora police department responded to a call to assist an ambulance crew at 425 Avon Street in Aurora. When they arrived the officers were met at the entrance to the second-floor apartment by the defendant, James Foster, who directed them to the living room where John Chapman, Tony Lloyd and Theresa Williams were. A black woman identified as Jacqueline Simmons was lying on her side on a couch. Her head and face were bloody and discolored and her jaw appeared to be broken. The paramedics arrived several minutes later and after unsuccessfully attempting to revive the woman, pronounced her dead at approximately 1:20 a.m.

After the ambulance left, the officers questioned the persons in the apartment. Theresa Williams, who lived with the victim, told the officers that she was home alone that evening with her children when Simmons, already severely beaten, came in about 10 p.m. She helped Simmons to the couch in the living room, where Simmons lost consciousness. The defendant told the officers that he was the victim's boyfriend and that he had arrived at the apartment 15 minutes before the police. Chapman stated that he had arrived about a minute after the defendant, and Lloyd stated that he was the last to arrive and that he was the one who had called the paramedics.

Officer Bonnie testified that while he was questioning the defendant, he appeared nervous and upset. Bonnie testified that he knew both Chapman and the defendant and that they had a reputation in the community for being violent.

Richmond and Bonnie found smudges of blood on the bathroom walls and clumps of black hair (the color of the victim's hair) on the floor. A further search of the apartment disclosed blood on the hallway and living room walls and large clumps of hair, wood splints and a kitchen spoon lying on the floor next to the body. When asked about the hair and spoon, Williams stated that the hair had fallen out of the hood of Simmons' jacket and that "they" had used the spoon, apparently to depress her tongue, in an attempt to aid Simmons when she was having difficulty breathing.

Having searched the apartment, Bonnie went to the first-floor apartment to interview the residents, Lupe and Arturo Moreno. Lupe Moreno told Bonnie that a few hours earlier she heard a commotion in the upstairs apartment that sounded like "somebody being beaten and banged on the floor." She stated that it continued from 10 p.m. that night to approximately 1 a.m. when the officers arrived and that during this time she could hear one female and three or four male voices in the second-floor apartment. Arturo Moreno told Bonnie that when he came home at 12:30 a.m., he knocked on his apartment door, and when he did, a man emerged from the second-floor apartment, but apparently realizing it was not a caller at that apartment, went back into the apartment. The Morenos both stated that they could not recall hearing anyone enter or leave the upstairs apartment from the time the commotion began until the officers arrived. At this point, the officers took the defendant, Lloyd, Chapman and Williams to the Aurora police station for questioning.

The State maintains that the officers had probable cause to arrest the defendant for the offense of obstruction of Justice when he was placed under arrest. The offense of obstruction of Justice is defined in section 31 -- 4(a) of the Criminal Code of 1961, which provides:

"A person obstructs Justice when, with intent to prevent the apprehension or obstruct the prosecution or defense of any person, he knowingly commits any of the following acts:

(a) . . . furnishes false information . . .." Ill. Rev. Stat. 1985, ch. 38, par. 31-4(a).

The State submits that the arresting officers had probable cause to believe that the defendant either participated in the homicide or had witnessed it, and attempted to mislead the officers by telling them that he was the victim's boyfriend, had just arrived at the apartment and did not know what had happened to the victim. The State says the officers' search of the apartment revealed evidence that indicated that the fatal beating had taken place in the apartment and that the statement of Mrs. Moreno indicated that three males and one female were in the apartment at that time. The officers also learned that the persons in the victim's apartment when the officers arrived were the same ones who were there during the beating; the Morenos had told them that they had not heard anyone leave the apartment from the time the commotion began until the officers came. The State says that the evidence showed the arresting officers that the defendant, and the others in the apartment as well, were lying to mislead the officers into believing that the victim had been beaten outside the apartment by someone unknown to them.

The defendant says that the officers did not have probable cause to believe that he was committing the offense of obstruction of Justice. They did not have a reasonable basis for doubting the veracity of his story because, he says, it was not contradicted by the evidence found at the apartment or the information supplied by the Morenos. He says that the Morenos did not identify him by voice or by sight and that they were not certain whether anyone had left the apartment during the sounds of the beating. The defendant claims that the officers could only have suspected that he was in the apartment during the beating and did not have probable cause to arrest.

The circuit court found that there was probable cause for the defendant's arrest and a trial court's finding of probable cause will not be set aside on review unless found to be manifestly erroneous. (People v. Cabrera (1987), 116 Ill. 2d 474, 485-86; People v. Clay (1973), 55 Ill. 2d 501, 505.) From our review of the record, we cannot say the trial court's finding was manifestly erroneous.

Probable cause exists where the police have "knowledge of facts which would lead a reasonable man to believe that a crime has occurred and that it has been committed by the defendant." (People v. Eddmonds (1984), 101 Ill. 2d 44, 60; Brinegar v. United States (1949), 338 U.S. 160, 175, 93 L. Ed. 1879, 1890, 69 S. Ct. 1302, 1310-11; People v. Wright (1985), 111 Ill. 2d 128, 145.) "Although a 'mere suspicion' that the person arrested has committed the offense is an insufficient basis for arrest [citations], evidence sufficient to convict is not required [citations]." (People v. Lippert (1982), 89 Ill. 2d 171, 178-79; People v. Reynolds (1983), 94 Ill. 2d 160, 166; Henry v. United States (1959), 361 U.S. 98, 101-02, 4 L. Ed. 2d 134, 138, 80 S. Ct. 168, 170-71.) As we recently observed in People v. Cabrera (1987), 116 Ill. 2d 474:

"The courts, in striking a balance between the need to protect citizens from invasions of their privacy at the whim of police officers and the countervailing need to allow leeway for efficient enforcement of the laws, are sensitive to the fact that policemen must often make their decisions to arrest or not to arrest under ambiguous circumstances and must exercise their judgment, at the risk of making a mistake. 'In dealing with probable cause, . . . as the very name implies, we deal with probabilities. These are not technical; they are factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.'" 116 Ill. 2d 474, 485, quoting People v. Moody (1983), 94 Ill. 2d 1, 7-8.

We Judge that the circumstances known to the officers at the time they placed the defendant under arrest and took him to the police station were sufficient to give rise to probable cause to believe that the defendant had committed the offense of obstruction of Justice. (See People v. Toolen (1983), 116 Ill. App. 3d 632, 650; People v. Shaw (1978), 63 Ill. App. 3d 227, 228; People v. Brooks (1977), 51 Ill. App. 3d 800, 803.) When the officers questioned the defendant and the three others at the victim's apartment, all denied knowledge of the beating, and by their statements they obviously tried to mislead the officers into believing that the victim had been beaten outside the apartment earlier by some unknown assailant. The evidence gathered by the officers, however, indicated that the fatal beating had taken place in the apartment. The officers found blood and clumps of hair in various places in the apartment. There had been no forced entry, and it would have been reasonable to assume that the assailant was known to the victim. Statements of the downstairs neighbors indicated that there were three or four persons present in the apartment during the ...


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