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02/19/88 the People of the State of v. William Kirkman

February 19, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

WILLIAM KIRKMAN, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

522 N.E.2d 588, 170 Ill. App. 3d 106, 118 Ill. Dec. 918 1988.IL.228

Appeal from the Circuit Court of Cook County; the Hon. Thomas J. Maloney, Judge, presiding.

APPELLATE Judges:

JUSTICE MURRAY delivered the opinion of the court. LORENZ, P.J., concurs. JUSTICE PINCHAM, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MURRAY

This is an appeal by defendant from a 1985 conviction by a trial court in a bench trial finding defendant guilty of voluntary manslaughter and concealment. Defendant was sentenced on July 16, 1985, for 15 years on the manslaughter conviction and three years on the concealment conviction. Both sentences were to run concurrent.

The public defender of Cook County represented defendant at the trial and initially in this appeal. The public defender of Cook County filed a motion to withdraw as appellate counsel, determining that there was no issue of merit. This court then appointed the State appellate defender to represent defendant in this appeal.

There are suggestions in the record that promises by an assistant State's Attorney were made that psychiatric help would be obtained for defendant if his mother, sister and brother-in-law would testify before the grand jury. On the other hand, the appellate defender raises only two issues on appeal. They are:

(1) That Kirkman (defendant) did not exhibit an intent to conceal the deceased homicidal death and therefore the conviction should be reversed; and

(2) Whether where the deceased attacked Kirkman with a knife while voicing her intent to kill him, William Kirkman was justified in using deadly force to defend himself.

The issue of unfulfilled promises by the assistant State's Attorney was first raised by defendant's trial counsel in a motion to quash the grand jury proceedings and to exclude testimony. At the hearing on the motion to quash, the assistant State's Attorney testified, in part, as follows:

"Q. Now during the course of your interviews with the defendant's mother, his sister and brother-in-law, did you ever make any promises to him concerning this case?

A. No, I did not.

Q. Specifically, sir, did [you] ever make any representations to them concerning the sanity or psychological well being of the defendant as you knew it to be on that date?

A. No.

Q. How did you respond when she asked you if the defendant would be allowed to plead guilty to insanity?

A. Mrs. McCloud asked me if her son could plead guilty to insanity and get some help, that he needed help. I told her that what his defense would be was up to his lawyer. Although I did tell her it sounded like he needed help."

Based on this and other testimony, the trial court order denied Kirkman's motion to quash.

The psychiatric report in response to a trial court order concludes:

"Overall, the intellectual pattern that emerges is an unreflective, action-oriented person whose judgment is poor, whose intellectual development is weak, but whose grasp of social situations is not severely impaired."

The State has had no opportunity to address this issue on appeal.

Finally, if, in fact, the issue is error tainting the trial, it is one that the proper administration of Justice impels its determination by a full hearing rather than by being addressed sua sponte by an appellate court. Our post-conviction remedy contemplates such a hearing if an error rises to a constitutional level. Ill. Rev. Stat. 1985, ch. 38, par. 122-1 et seq.

On the issues that have been raised by defendant and responded to by the State, we affirm for the following reasons.

At trial the evidence presented, primarily through stipulation, established that defendant and the victim, Harriet Price, had been dating for several months, and that defendant was living with the victim and her mother. Although the relationship between defendant and the victim had allegedly ended, defendant was still living with her. On the evening of January 13, 1984, the victim was home with defendant and her two girl friends, Carol Frazier and Katherine Collins. The victim and defendant began to argue, and when she asked defendant to leave, he refused. As she started to call the police, defendant hit the victim in the face, causing her to fall to the floor. Defendant then left. Shortly after this incident, the victim and her two friends went out and did not return home until 5 a.m. the next day. At that time defendant was speaking on the telephone with his mother, Deloyce Kirkman. The victim spoke with defendant's mother and agreed to meet her at the latter's house later that day.

At 1 p.m. the victim went to meet Deloyce Kirkman, but when she arrived at the house, defendant was the only one there. She then began arguing with him, and at one point she asked defendant to bring her a glass of water. Defendant refused and told the victim to get it herself.

According to the testimony of Glen McCloud, who is defendant's brother-in-law and who recounted what defendant had told him about the incident, the victim came back from the kitchen with a knife and threatened to stab defendant. The victim was 4 feet 11 inches tall and weighed 118 pounds; defendant was 6 feet tall and weighed 145 pounds. As the victim came toward him with the knife, defendant grabbed her around the throat allegedly in self-defense. Shortly thereafter her knees buckled and she fell to the floor. Defendant then realized that he had killed her.

Deloyce Kirkman worked at a bar on the first floor of the building where she lived. About 4 p.m. on the day of the occurrence she went to her apartment and found that an ashtray and game were on the floor and that a table was out of place. Defendant was in the bathroom with the water running. When Deloyce Kirkman asked about the condition of the apartment, defendant replied that he tripped when he went to answer the door.

At 7 p.m. defendant contacted McCloud, went to his house and told him that he had killed the victim. He described the events leading up to her death and told McCloud that the victim's body was under the stairway of his mother's house. McCloud reported defendant's conversation to Deloyce Kirkman, who then called the victim's house, but found no one at home. She then took a flashlight and used it to illuminate the darkened stairway where the victim's body was allegedly hidden, but saw nothing. McCloud then found defendant and accused him of fabricating the story of victim's death. Defendant stated he had no reason to lie and that the victim's body was under the steps. Sometime later, defendant told Deloyce Kirkman that he had killed the victim, placed her body in a laundry bag and placed it behind the stairway.

At 7 a.m. the next day, defendant asked McCloud to help him flee. McCloud refused, stating that he did not believe defendant's story because he could not find a body. Defendant continued to insist that the body was where he originally said it was. Deloyce Kirkman, who had been calling the victim's residence attempting to locate her, at this time called the police. At 10:30 a.m. Deloyce Kirkman went down the stairway and found the victim's body. Officer Rivera arrived at 1 p.m., was shown the victim's body and contacted additional officers. Shortly thereafter, defendant called his mother from his stepmother's house, and Officer Rivera was informed of defendant's location. Officers Guiffre and Nakutis subsequently arrested defendant at this location.

The pathologist's testimony was also presented by stipulation. His examination of the victim revealed a number of abrasions to her head, face, neck, chest and back. He also found that her left neck bone was fractured, and that the cause of death was strangulation.

As indicated above, defendant brings this appeal, contending only that the evidence did not support his conviction for concealment of a homicidal death and that his conviction for voluntary manslaughter was also improper because he killed the victim in self-defense. I

Concealment of a homicidal death is governed by section 9-3.1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, par. 9-3.1) which states:

"(a) A person commits the offense of concealment of homicidal death when he conceals the death of any other person with knowledge that such other person has died by homicidal means."

In order to establish that the offense of concealing a homicidal death has occurred, the evidence must show that a homicide has occurred, that the defendant knew both the fact and cause of death and that defendant took affirmative steps to conceal the homicide with the specific purposes of preventing or delaying its discovery. (People v. Stiles (1977), 46 Ill. App. 3d 359, 360 N.E.2d 1217.) Concealment of a homicidal death includes situations where the homicidal nature of the death or the body itself is concealed. People v. Vath (1976), 38 Ill. App. 3d 389, 347 N.E.2d 813.

In the instant case a homicide occurred when the victim was strangled by defendant, and defendant revealed his knowledge of the fact and cause of the victim's death when he first informed his brother-in-law that he had killed her. Defendant also took affirmative action and intentionally concealed the victim's body when he placed it in a laundry bag and hid the body from view.

Defendant argues that he should not have been convicted of concealing a homicidal death because he made no attempt to conceal the fact of the victim's death, and in fact, facilitated the discovery of her body. Although defendant did inform his family of the circumstances of the victim's death, he intentionally concealed her body, and only moved it to a location where it could be discovered when defendant's brother-in-law stated that he did not believe defendant's story because he could not find the body. Even though a defendant may reveal the location of a victim's body several days after the homicide has occurred, the initial concealment of the victim's body constitutes an offense. People v. Mueller (1985), 130 Ill. App. 3d 385, 474 N.E.2d 434.

For these reasons, we find that defendant's conviction for the concealment of homicidal death was proper. II

Both the offense of voluntary manslaughter under section 9-2(b) of the Criminal Code (Ill. Rev. Stat. 1983, ch. 38, par. 9-2(b)) and self-defense under section 7-1 of the Criminal Code (Ill. Rev. Stat. 1983, ch. 38, par. 7-1) involve the issue of whether a defendant subjectively believed that force was justified for his self protection. Once there is a finding that defendant believed force was justified, the next determination is whether or not defendant's belief is found to be reasonable. Once it is found to be unreasonable, a conviction for voluntary manslaughter results. (People v. O'Neal (1984), 104 Ill. 2d 399, 472 N.E.2d 441.) In order to establish self-defense, defendant must show that unlawful force was threatened against him, that he was not the aggressor, and that the amount of force used was necessary to protect himself from imminent harm. People v. Jordan (1985), 130 Ill. App. 3d 810, 474 N.E.2d 1283.

Defendant was the only witness to the altercation between himself and the victim that resulted in her death. He claims that the victim threatened him with unlawful force when she came after him with a knife, and that the force he used was necessary to protect himself against this imminent harm. The trier of fact determines the credibility of the witnesses and the weight of their testimony. (People v. Foster (1979), 76 Ill. 2d 365, 392 N.E.2d 6.) In the instant case, the trial court considered the evidence and found defendant's belief that he had to use deadly force was unreasonable. A reviewing court will not alter the determination of a trier of fact unless the evidence justifies a reasonable doubt of guilt. (People v. Jordan (1985), 130 Ill. App. 3d 810, 474 N.E.2d 1283.) We conclude that the evidence corroborated the fact that defendant used more force than was necessary for his own self-defense where he was over one foot taller and 27 pounds heavier than the victim and exerted such force that he fractured a neck bone when he strangled her to death. Therefore, the trial court properly found defendant guilty of voluntary manslaughter.

Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

CASE RESOLUTION

Judgment affirmed.

MINORITY OPINION

JUSTICE PINCHAM, Dissenting:

I Dissent. Seeking support, consolation and advice, the defendant, William Kirkman, remorsefully confided to his mother, Mrs. Deloyce Kirkman, his sister, Marcia McCloud, and his brother-in-law, Glen McCloud, that he fatally choked his former girlfriend, Harriet Price, in defending himself against her knife-wielding unprovoked attack upon him while stating that she was going to kill him. His admissions to them were not designed to conceal the homicide or to avoid his possible apprehension, prosecution or punishment. According to them, the defendant's mother, sister and brother-in-law testified to the defendant's admissions to them before a grand jury solely because of the prosecutor's assurances to them that only by their doing so could the defendant plead insanity to the homicide charge against him arising out of Price's death and receive the psychiatric treatment which the defendant needed. Based thereon, the defendant's court-appointed trial attorney filed a motion to quash the indictment and to exclude the grand jury testimony of the defendant's mother, sister and brother-in-law. The trial court denied the motion based on what appears may have been erroneous grounds.

At trial, the defendant's attorney stipulated to the admission of the grand jury testimony of the defendant's mother, sister and brother-in-law as evidence against the defendant. The defendant's court-appointed appellate attorney has not pursued or assigned in this court the trial court's denial of the defendant's motion to quash the indictment and exclude the grand jury testimony as grounds for reversal of the defendant's conviction. Moreover, neither the defendant's trial nor appellate attorney has raised or pursued the defendant's insanity as a possible defense, which appears from the record before this court to have been a meritorious justiciable issue.1 Based upon the foregoing, it is my opinion that the record before us presents the additional meritorious justiciable issue of whether the defendant in the trial court and in this court has been afforded the effective assistance of counsel to which he is constitutionally guaranteed by the sixth amendment, made binding on the States by the due process clause of the fourteenth amendment to the Constitution of the United States (Gideon v. Wainwright (1963), 372 U.S. 335, 9 L. Ed. 2d 799, 83 S. Ct. 792; Johnson v. Zerbst (1938), 304 U.S. 458, 82 L. Ed. 1461, 58 S. Ct. 1019; Grosjean v. American Press Co. (1936), 297 U.S. 233, 243-44, 80 L. Ed. 660, 665, 56 S. Ct. 444, 446; Powell v. Alabama (1932), 287 U.S. 45, 77 L. Ed. 158, 53 S. Ct. 55), and by the due process and right of counsel clauses of article 1, sections 2 and 8, of the Constitution of the State of Illinois. In addition, the evidence did not establish beyond a reasonable doubt the defendant's guilt of voluntary manslaughter. I

Soliciting the consolation of his mother, sister and brother-in-law on Saturday, January 14, 1984, the defendant confided to them that earlier that day, his former girlfriend, Harriet Price, had come to the defendant's mother's home, ridiculed him and, while threatening to kill him, attacked him with a butcher knife. The defendant further told them that in defending himself against her attack he grabbed Price by the neck and choked her and that suddenly she felt limp, dead. He told them that he concealed her body in the stairwell of the building. Mrs. Kirkman and Glen McCloud ultimately found Price's body where the defendant told them he had placed it. The police were called. They removed the body and arrested the defendant.

Three days later, on January 17, 1984, police officers went to Mrs. Kirkman's home and transported Mrs. Kirkman, her daughter and her son-in-law to the office of Assistant State's Attorney Thomas Gibbons in the criminal court building. Assistant State's Attorney Gibbons interviewed them and directed them to appear and testify before the grand jury. They did so, according to them, solely because of Gibbons' assurance and promises to them that only by their so testifying could the defendant plead insanity and obtain needed psychiatric and medical treatment.

Based exclusively on the testimony of the defendant's mother, sister and brother-in-law, the grand jury returned the indictment against the defendant. The indictment charged the defendant with the murder of Harriet Price by strangulation and with concealment of her homicidal death on January 14, 1984. Ill. Rev. Stat. 1981, ch. 38, pars. 9-1(a)(1), (a)(2), 9-3.1.

The defendant's court-appointed attorney filed a motion to quash the indictment and suppress the grand jury testimony. The attorney did not raise in the motion the parent-child privilege, the question of whether a mother's improperly and deceptively induced grand jury testimony by a prosecutor to indict and ultimately imprison her son violated the parent-child privilege, public policy, or the fundamental, basic and natural mother-son fidelity and bond. The motion to quash did not present the question of the propriety of the State transgressing the parent-child-sibling loyalties. The motion to quash the indictment and suppress was predicated on a violation of the prosecutor's promise and assurances to the defendant's mother, sister and brother-in-law that by reason of their grand jury testimony the defendant could plead insanity and would receive needed psychiatric treatment. The motion to quash the indictment alleged:

"1. Prior to defendant's indictment for the instant offenses the State's Attorney's office promised the witnesses who appeared before the grand jury that the State's Attorney of Cook County would not oppose psychiatric care for defendant.

2. Witnesses understood the State's representations to be a promise not to prosecute for murder.

3. Based on said promises the witnesses before the grand jury appeared without subpoena and waived benefit of counsel for both themselves and defendant.

4. All witnesses before the grand jury were defendant's relatives.

5. The wrongful inducements and misrepresentations by the State prejudiced defendant's right to equal protection and due process under the Illinois and United States [Constitutions]."

The motion prayed that the testimony of the grand jury witnesses be excluded and that the indictment be quashed.

Documents entitled "Affidavit" (but which were not sworn to) were each signed by Deloyce Kirkman, Marcia McCloud and Glen McCloud and were submitted with and in support of the defendant's motion to quash the indictment and suppress. Each affidavit stated:

"I hereby affirm that on January 17, 1984, I appeared before the Grand Jury of Cook County. Prior to testifying before said Grand Jury I spoke to Assistant State's Attorney Thomas Gibbons. Mr. Gibbons assured me that my testimony before the grand jury was a mere legal formality. He promised me that if I testified he would not oppose efforts to get psychiatric treatment for William Kirkman and that he would recommend insanity at the trial level. Because of the assistant State's Attorney's promise I did not consult a lawyer for myself or William."

The defendant's attorney also filed a motion entitled "Motion to Compel Compliance With A Promise." This motion alleged:

"1. Prior to the defendant's indictment for the instant offenses the State's Attorney's office promised the witnesses who appeared before the Grand Jury that the State's Attorney of Cook County would not oppose psychiatric care for defendant.

2. On March 12, 1984, the assistant State's Attorney assigned to the instant case opposed treatment for defendant and objected to an examination of defendant.

3. Said objection was in direct contradiction to the pre-indictment promise.

4. Based on said promise the witnesses before the Grand Jury appeared without subpoena and waived benefit of counsel for both themselves and defendant."

The motion to compel compliance with the promise prayed that the court "enter an order directing compliance with the pre-indictment promise."

The State filed a "Memorandum in opposition to Defendant's Motion to Quash Indictment," which stated:

"The State maintains that a slightly different conversation occurred between Assistant State's Attorney Gibbons and Mr. & Mrs. McCloud and Mrs. Kirkman. While Assistant State's Attorney Gibbons was talking to the McClouds and Mrs. Kirkman, he requested that they testify before the Grand Jury about their knowledge concerning William Kirkman's involvement in Harriet Price's death. Mrs. Kirkman then asked if their testimony would help the defendant with an insanity plea, to which Assistant State's Attorney Gibbons replied, 'It sounds like he needs help.' Nothing further was said and no promises were made regarding efforts to get psychiatric help for the defendant."

It is significant that the prosecutor had not served or caused subpoenas to be served on the McClouds and Mrs. Kirkman to command their presence and testimony before the grand jury. It is also significant that police officers went to Mrs. Kirkman's residence and transported her and the McClouds to Assistant State's Attorney Gibbons' office. It is likewise meaningful, insofar as the record before us reveals, that Mrs. Kirkman and the McClouds were the only testimonial sources from which the prosecutor could obtain an indictment against the defendant or thereafter secure his conviction thereon.

According to the State's memorandum in opposition to the defendant's motion to quash the indictment and suppress, the prosecutor merely requested Mrs. Kirkman and the McClouds to testify before the grand jury to return a murder indictment against her son, Marcia's brother and Glen's brother-in-law. Mrs. Kirkman then asked the prosecutor "if their testimony [before the grand jury] would help the defendant with an insanity plea." The prosecutor simply responded, "It sounds like he needs help." Without deciding whether the prosecutor was under an obligation to explain to Mrs. Kirkman or the McClouds their rights; without deciding whether the prosecutor had a duty to explain the defendant's rights to them; and it need not be decided whether the prosecutor was compelled to advise Mrs. Kirkman and the McClouds that they were the prosecutor's only source for obtaining an indictment against the defendant, or, that based upon their testimony before the grand jury a murder indictment would or could be returned against their son and brother. It cannot be honorably disputed, however, that the prosecutor, the legal representative of the State, was at least obligated to directly answer Mrs. Kirkman's question and to answer it truthfully. The prosecutor did neither. It cannot be reputably debated that once Mrs. Kirkman asked the question, the prosecutor was then under a duty to at least not mislead her and not allow her to testify before the grand jury through her ignorance, misapprehension, misinterpretation or misinformation. Certainly the prosecutor should not have, by adroit cosmetic deceptive acquiescence in their concerns for the defendant, misled Mrs. Kirkman and the McClouds and violated the trust they had reposed in him, or allowed them to mistakenly place their confidence in him. The role of government in our society is an omnipotent one. That role should always be executed and fulfilled with honor and honesty, truthfully and fairly. By the State's admission it was not so performed by the prosecutor in the case at bar.

The defendant filed a response to the State's memorandum in opposition to the defendant's motion to quash the indictment and suppress. The defendant urged in his response that "the State concedes that they are bound by a promise made to a defendant or his attorney. They contend, however, that they are not bound in the instant situation because the promise was made to defendant's family." Firstly, defendant maintains that he was denied due process by the abuse and misuse of the grand jury, by the State's Attorney in falsely inducing family members to testify before the grand jury. Secondly, he maintains that the promises made to family members in the instant case were even more prejudicial to defendant than promises made to a lawyer because the State's promises falsely induced family members not to seek a lawyer for defendant.

The trial court held an evidentiary hearing on the defendant's motion to quash the indictment and suppress. The defendant called Mrs. Veronica Kirkman as a witness. She testified that she was married to the defendant's father and was his stepmother. She related that on January 17, 1984, she came to the criminal court building with her husband -- the defendant's father -- and her two sons. She stated that upon her arrival she saw William Kirkman's mother, Mrs. Deloyce Kirkman, the defendant's sister, Mrs. Marcia McCloud, and the defendant's brother-in-law, Glen McCloud. She further testified:

"Q. Were you in the presence of an assistant State's Attorney that day?

A. Just before they went into the grand jury.

Q. And while you were in his presence, did you hear a ...


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