APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT
525 N.E.2d 1137, 170 Ill. App. 3d 873, 121 Ill. Dec. 830 1988.IL.976
Appeal from the Circuit Court of Macon County; the Hon. Rodney A. Scott, Judge, presiding.
JUSTICE LUND delivered the opinion of the court. KNECHT and SPITZ, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LUND
On February 24, 1987, defendant Danny Travis was found guilty by a jury in the circuit court of Macon County of the offenses of murder, home invasion, residential burglary, and aggravated criminal sexual assault in violation of sections 9-1, 12-11, 19-3, and 12-14, respectively, of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, pars. 9-1, 12-11, 19-3, 12-14). Defendant subsequently received a prison sentence of natural life on the murder conviction, 60 years' imprisonment for home invasion, 60 years' imprisonment for aggravated criminal sexual assault, and 30 years' imprisonment for burglary, with all sentences to be served concurrently. Defendant appeals, alleging (1) various statements he made were improperly allowed into evidence; (2) the court erred in refusing to dismiss a juror; (3) the jury instructions deprived him of his right to a unanimous verdict; and (4) all the convictions but the murder conviction must be vacated. We affirm and modify.
On Wednesday, October 30, 1985, D.H., age 66, was found dead in her home. The assailants gained entry by breaking out a basement window and crawling into the house. They exited by the back door, which was found ajar. The premises were deteriorated, with peeling wallpaper, and full of boxes, papers, and refuse. The telephone had been pulled off the wall.
D.H. was found lying face up on the living room floor on several blankets. A bloodstained rubber mallet lay about one foot from her head. The two blouses she wore were torn open, and her brassiere was pushed over her breasts. She was naked below her waist. Her ankles and right wrist were separately bound with pieces of cloth, but these bindings were not tied to anything. Her left hand was bruised and bloodstained, and blood was smeared on her stomach. A bloodstained two-cell Ray-O-Vac flashlight was found at her feet. A pair of panties and men's pajamas were laying at her feet. A semen stain was found on the bedspread she was lying on.
The autopsy revealed she had died from manual strangulation. She also sustained considerable head injuries and lacerations to her face and lips. The shape of the mallet corresponded with injuries to her head. There were also multiple injuries to her vagina. It appeared as if something had been thrust into her vagina causing tearing. It was impossible to tell if the vaginal injuries were pre- or post-mortem. Her left hand had numerous injuries consistent with a defensive effort on her part to ward off blows of some type.
Nobody was arrested at that time, and the case was left open by the Decatur police.
At 9:30 p.m. on Thursday, September 25, 1986, Detective Brian Bell of the Decatur police department went looking for defendant to interview him concerning the murder of Gregory Taylor. He was acting upon information that had been received that defendant admitted involvement in the Taylor crime to others. Upon finding him, Bell placed defendant under arrest for the murder and took him to the Decatur police department jail. At 9:50 p.m., defendant was interviewed and, eventually, made an inculpatory statement concerning the Taylor offense, which was tape-recorded, with the interview concluding at 11:55 p.m.
At 8:05 a.m. on the following morning, defendant was again questioned about the crime. Defendant then took the officers to a location in Decatur involved with the crime and was returned to his cell around 9:45 a.m.
At 7:45 p.m. on that day, Friday, September 26, defendant was again interviewed. He changed his story and implicated a friend, J. R. Wilson, as a codefendant. Defendant then volunteered that he and Wilson had killed an old lady near Garfield school. D.H.'s house was near Garfield school.
Defendant stated that Wilson approached him about breaking into the old lady's house. They drove by the house a few times until the lights went out. They then parked in the alley behind the house. Wilson went to the house and kicked in the basement window, gaining entry. He then opened the back door letting defendant in. As they entered the house, D.H. got up from the couch in the living room, and Wilson knocked her down.
Defendant stated he then went to the back bedroom and collected some silverware, jewelry, and $600 in cash. At this time, defendant was wearing plastic gloves. Defendant reentered the house and saw Wilson take a ring off D.H.'s finger, tear her nightgown, and rape her. Wilson also struck her several more times about the head. Defendant stated he was carrying a flashlight and remembers the house had peeling wallpaper.
After giving this statement, defendant was taken to a police car and directed the officers to the scene of the crime. He also gave a description of the interior and how access to the house was gained. They returned to the police department, and defendant gave a tape-recorded statement concerning both crimes. Defendant was then taken to a polygraph examiner. As he left the examiner around 12:30 a.m., defendant volunteered to the police that he had shoved a flashlight into D.H.'s vagina.
On Saturday, September 27, defendant was only disturbed for purposes of having hair samples taken and to be shown some spoons similar to those taken from D.H.'s house.
On Sunday, September 28, defendant identified a flashlight similar to the one he used on D.H. He maintained he only did this after Wilson had killed her. Defendant also gave a blood sample.
At 4:05 p.m. on Monday, defendant was questioned some more concerning the Taylor murder. At 4:15 p.m., he was taken for more polygraph examinations. Upon leaving the examiner, defendant volunteered that he wanted to tell the truth and that he killed D.H. by himself. Defendant's last interview occurred at 8:40 p.m. that evening. The next day, an information was filed, and defendant appeared in court.
Defendant subsequently filed a motion to suppress his confession. It asserted the confession should be suppressed since defendant was not taken without unnecessary delay before a judicial officer. The motion also alleged that the statements stemmed from an unknowing and involuntary waiver of his rights due to defendant's subnormal intelligence and the fact he was intoxicated, deprived of sleep, and threatened by the police. A hearing was conducted on December 9, 1986.
Detective Brian Bell testified he arrested defendant on September 25 for the Taylor murder. Defendant was taken to the interview room at the police station by Officer Rick Jones and Bell around 9:50 p.m. Bell gave defendant a custodial interview advice form which contained the Miranda warnings and asked him to read along as Bell read it out loud. Defendant pushed the form away and stated he would not, saying he was not going to sign anything. Bell then verbally admonished defendant of his rights which defendant stated he understood. Bell then gave defendant the form explaining it contained the warnings just given. They then read the form, and defendant signed it, acknowledging he understood these rights. Defendant at no time indicated he did not understand, nor did he appear confused. Defendant later advised he could not read and write. Defendant gave a taped statement concerning the Taylor murder. This tape contained an admonishment of defendant and his waiver. Defendant was allowed to drink from a water fountain and was given a Coke and a sandwich. Bell observed a slight odor of alcohol on defendant's breath, but it was his opinion that defendant was not intoxicated.
The next day, at 7:45 p.m., Bell reinterviewed defendant. At that time, Sergeant Robert Pittenger was present with them. Defendant was again advised of his Miranda rights and signed a waiver of such. During the interview, defendant made the first comment about the D.H. murder. Defendant then took them to the murder site. Defendant was interviewed again at 10 p.m. with Jones also present. Defendant gave a taped statement for each offense which contained another admonishment and waiver. Defendant was then taken to the polygraph examiner by Bell and Jones.
On Monday, September 29, around 4:15 p.m., Bell and Jones took defendant back to the polygraph examiner. Upon leaving there, defendant volunteered his statement to Bell. At the station, Bell again admonished defendant concerning his rights, which he waived.
Mark Cheviron works as a polygraph examiner. He tested defendant twice. Each time, he advised defendant of his Miranda rights, which were waived. He also advised him he did not have to take the test. Defendant's only comment either time was that he did not understand why he had to take the test a second time. When told that Cheviron wanted to retest him on some of the previous statements, defendant made no other comment.
Sergeant Don Brooks is currently supervisor of the day shift. He was present with Bell and Jones when defendant gave his first taped statement. He observed defendant being admonished and waiving his rights. He inquired of defendant if he was hungry and then sent someone out for a sandwich for defendant. He also noticed an odor of alcohol about defendant but opined he was not intoxicated.
Detective Robert Pittenger has been with the police force 16 years. On Friday night, he was with Bell when he interviewed defendant. He witnessed defendant being advised of his rights and waiving same.
Francis Schultz has been employed by the police for 17 years. He transported defendant and Detective George Lebo to a site in Decatur on the morning of the 26th. It was his opinion that defendant was not intoxicated at that time.
Detective Robert Davis first had contact with defendant on the 27th when he took some hair specimens. Davis later interviewed defendant on the 29th around 1 p.m. He advised defendant of his rights, and defendant, stating he understood, waived them.
Detective Rick Jones was present for the interview on September 25. He witnessed defendant being advised of his rights, which defendant acknowledged and waived. During this interview, he was given a soda and a sandwich. He spent two hours in defendant's presence, and, while he noticed a faint smell of alcohol, did not believe he was intoxicated.
On the 26th, he and Bell took defendant out in a car, and defendant directed them to the murder site. Then two taped statements of defendant were taken where defendant again waived his rights. He and Bell then took defendant to the polygraph examiner. As they left, defendant told Jones about using the flashlight.
Jones saw defendant on the 28th when he showed him a flashlight and photo lineup. He helped Bell transport defendant on the 29th to the polygraph examiner.
Detective George Lebo interviewed defendant on the 26th around 8 a.m. He advised him of his rights, and defendant, saying he understood, then signed a written wavier. He interviewed defendant about the Taylor murder and then transported him with Officer Schultz to a site in Decatur. It was his opinion defendant was not intoxicated at that time.
All the police testified defendant was not subject to coercion or deprived of any of the necessities of life. Defendant never claimed to be tired; nor did he tell them he did not understand his rights, ...