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07/20/88 the People of the State of v. Dewayne Britz

July 20, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE

v.

DEWAYNE BRITZ, APPELLANT

DEFENDANT WAS ALSO CHARGED WITH ARMED ROBBERY (ILL. REV. STAT. 1985, CH. 38, PAR. 18-2(A)) AND THEFT (ILL. RE

v.

STAT. 1985, CH. 38, PAR. 16-1(A)(1)) OF PAUL TACKETT OF TACKETT WHEELS, INC., ON JANUARY 16, 1985, IN THAT DEFENDANT TOOK TACKETT'S TRUCK BY USE OF FORCE-A GUN.



SUPREME COURT OF ILLINOIS

528 N.E.2d 703, 123 Ill. 2d 446, 124 Ill. Dec. 15 1988.IL.1119

Appeal from the Circuit Court of Sangamon County, the Hon. Richard E. Mann, Judge, presiding.

APPELLATE Judges:

JUSTICE CUNNINGHAM delivered the opinion of the court. JUSTICE STAMOS took no part in the consideration or decision of this case.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE CUNNINGHAM

On February 14, 1985, defendant, DeWayne Britz, was charged by information in Sangamon County with six counts of murder (Ill. Rev. Stat. 1985, ch. 38, pars. 9-1(a)(1), (a)(2), (a)(3)), one count of aggravated kidnapping (Ill. Rev. Stat. 1985, ch. 38, par. 10-2(a)(5)), two counts of aggravated criminal sexual assault (Ill. Rev. Stat. 1985, ch. 38, par. 12-14(a)(1)), one count of armed robbery (Ill. Rev. Stat. 1985, ch. 38, par. 18-2(a)), and one count of concealment of a homicidal death (Ill. Rev. Stat. 1985, ch. 38, par. 9-3.1(a)). These charges involved the murder, kidnapping, robbery and rape of Mimi C. Covert on January 16, 1985.

Following a jury trial, defendant was found guilty on all counts. Pursuant to section 9-1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 9-1) (hereinafter referred to as the death penalty statute), a death penalty hearing was held before the same jury (Ill. Rev. Stat. 1985, ch. 38, par. 9-1(d)(1)). The jury unanimously found that defendant had attained the age of 18 or more, that statutory aggravating factors exist and that no mitigating factors exist to preclude the imposition of the death sentence. Defendant was sentenced to death on all six counts of murder. The sentence was stayed (107 Ill. 2d R. 609(a)) pending appeal to this court (Ill. Const. 1970, art. VI, § 4(b); 107 Ill. 2d R. 603).

The evidence adduced at the trial revealed the following sequence of events. On January 16, 1985, between the hours of 10 a.m. and 6:15 p.m., defendant spent the day at Tackett Wheels, Inc., a used car dealership in Springfield. Defendant, who had worked at Tackett Wheels until he was fired in November 1984, was "hanging out" and helping clean snow off the cars in the lot. During the course of the day defendant saw Paul Tackett, owner of Tackett Wheels, Inc., make a cash sale. By 6:15 p.m., everyone had gone home except defendant and Tackett. At that time Tackett began to put something into a file cabinet when defendant hit him in the back of the head with a pistol. Defendant was looking for the money from the cash sale. After Tackett turned around and asked defendant what he was doing, Tackett ran out of the building toward a tavern across the street. He then saw defendant get into his (Tackett's) 1972 Chevrolet pickup truck and drive away. The keys were in the truck and the engine was running because Tackett was warming it up.

Defendant left in the truck, traveling north out of Springfield through several small towns. He eventually stopped at a tavern in Salisbury and had a beer. After he left the Salisbury tavern, defendant began to travel southbound toward Springfield. When defendant noticed that the truck was low on gas, he turned around and headed north. As he was driving, he observed that the truck was overheating. He then stopped the truck and put on his emergency flasher signal.

A few minutes later, the victim, Mimi C. Covert, pulled up in her orange Honda with California license plates and offered defendant a ride into Petersburg. After defendant entered Covert's car and they proceeded to Petersburg, defendant pulled a gun on her and ordered her to take him to Springfield. During that period, he took five number 10 valium tablets and $5 or $6 from her purse and demanded that she withdraw additional money from an Easy Answer automatic teller machine. They tried Covert's Easy Answer Card in machines at three different locations but all were out of service. He then told her to drive toward the airport.

As they traveled along the perimeter roads of Capitol Airport, defendant asked her if she felt like "having sex." Defendant stated that she agreed and subsequently performed fellatio and engaged in vaginal sexual intercourse in the backseat of the car. Defendant stated that the gun was on the front seat of the car in his pants pocket. Afterwards, defendant took control of the car and continued driving north along the same road. Since the roads were covered with ice and snow, defendant slowed down and shifted gears so he could negotiate a curve. At that moment, Covert jumped from the car and ran. Defendant stopped the car, got out and fired a shot in her direction. Defendant saw Covert grab the side of her head and fall to the ground as blood spurted from her head. As he approached her, she yelled out that she was already dead. Nonetheless, defendant shot her with the remaining bullets in the chamber and reloaded the gun. Defendant then disposed of her body in a ditch across the road. When defendant noticed that Covert's body kept quivering, he emptied the new chamber into her body and subsequently covered her with snow.

After leaving the area, defendant stopped at a package liquor store and purchased a 12-pack of Busch beer and a half-pint of Jack Daniels whiskey. Eventually, he checked into room 4 of the Haven Motel. Defendant threw Covert's fishing license in the trash can in the room, hid the car keys to Covert's car and fell asleep.

Through several leads and dispatches, the police discovered the victim's car at the motel and traced the car to defendant in room 4. After they questioned defendant, the officers placed him under arrest, read him his Miranda rights, and searched defendant and the room. In the room they found the victim's fishing license and keys to her car. On defendant, the officers found a revolver loaded and ready to fire.

Since defendant raises numerous issues regarding various stages of the trial proceedings, this court will consider those additional facts in full as we consider each issue. The record is voluminous and this court does not find it necessary to repeat the facts. I

Defendant's first issue on appeal is whether or not the circuit court erred when it disallowed defendant's expert witnesses from testifying on the issue of defendant's temporary insanity at the time of the offense. Defendant argues that the expert witnesses would have testified to defendant's long-standing mental disease or defect predicated upon his voluntary ingestion of alcohol or drugs.

At the trial, nine witnesses testified regarding defendant's alleged intoxication from alcohol or drugs on the night of the incident. In light of these witnesses, the evidence adduced at trial does not support any possibility that defendant was under the influence of any alcohol or drugs.

Although Paul Tackett, defendant's former employer, left the business premises two or three times that day, he saw defendant consume one L.A. Busch beer and nothing else. Tackett stated at the trial that based on his observation of defendant, defendant was not under the influence of any alcohol or narcotics. He further stated that defendant appeared to be acting normally.

Detective Michael Maybury, the officer who arrived at the motel as Officers Tony Sacco and Tom Hendrickson were entering defendant's motel room, stated that based on his 20-minute to half-hour observation of defendant, and his 13 years of law enforcement experience, defendant was not intoxicated. During that time he was within six to seven feet of defendant.

Peggy Elliott, manager of the Haven Motel for two years, saw defendant on the night of the incident when defendant registered for a room. During the 5 to 10 minutes Elliott observed defendant, she was within 18 inches, separated only by a thin screen in front of her desk. She did not notice any odor of intoxicating liquor on defendant. She stated that defendant was very polite, his speech was not slurred and he walked normally without any sway, stagger or fall. In her position as a manager, she stated that she continually sees persons who are under the influence of alcohol or drugs. Later that morning, she went into the motel room in which defendant had stayed and found a half-pint of whiskey with very little gone and a 12-pack of beer with only one can missing. The missing can was found on the desk and it was half full. She brought the liquor to the police station.

Patrol sergeant Tony Sacco, a police officer for 15 years, also observed defendant that night. During the time Sacco was at the motel, he had contact with defendant for 45 minutes to an hour, personally spoke with defendant and stood within two feet of defendant. Based on his experience and his observations of defendant, he opined that defendant was not under the influence of any alcohol or drugs. Sacco stated that defendant was very calm, and cooperative. He also observed that defendant's speech was not slurred and he did not stagger as he walked or sway as he stood.

Deputy sheriff Tom Hendrickson, a law enforcement officer for nine years, observed defendant at the motel and at the police station from 4 a.m. until 11 a.m. He stated that he did not smell any intoxicating liquor on defendant and that defendant did not slur his speech and did not stagger as he walked. Based on his observations and law enforcement experience, Hendrickson opined that defendant was not under the influence of any alcohol or drugs.

Detective Al Sample, over 10 years in the field of law enforcement, was within a foot of defendant during the six hours they were together at the police station. Sample did not detect the odor of any liquor on defendant and observed that defendant appeared to be normal and was able to talk and walk. At the station Sample read defendant his Miranda rights again. Subsequently, defendant gave a verbal taped statement in which he stated that he had one beer in Salisbury. Regarding his level of intoxication at the time of the incident, defendant made the following statements to questions by Sample:

"Are you under the influence of alcohol or drugs right now?

Right. Yeah, feel a little influence. I wouldn't say totally, 'cause I had four or five or six hours sleep.

Are you still in control of your actions and aware of what is going on here?

Yes. I am now.

When this happened, were you under the influence of alcohol or drugs?

Both.

Were you still aware of what was happening, in control of your actions?

No, 'cause I could hardly drive, let alone -- it probably was mostly nerves.

You were still able to drive the car back to Springfield after this happened. So, were you totally under the influence of alcohol and drugs ?

I wouldn't say totally . . ..

You were still aware of what transpired . . ..

I say I was more shocked at what happened, more or less sobered me up. I don't know how to explain it, but it just -- like when the gun first went off, I seen the blood, I just went, I don't know, real crazy, didn't know what to do next. I got real frantic then." (Emphasis added.)

This court finds that these statements alone or in light of the record as a whole do not establish a defense of voluntary intoxication based on a long-standing mental disease. Defendant's statements do not reveal that his loss of control was based on a long-standing chronic illness but rather one night of voluntary intoxication. His statements at this point do not suggest a necessity for expert witnesses' testimony regarding a chronic illness. Nonetheless, defendant called five witnesses regarding his use of alcohol and drugs prior to the incident and the effect of those chemicals on him.

Harvey Byron Lloyd, a driver for Lincoln Yellow Cab, was hired by defendant on January 8, 10, and 11, 1985. However, Lloyd never saw defendant under the influence of any alcohol or drugs. Lloyd stopped working as defendant's chauffeur after defendant fired a gun out of the cab window and drew his gun on a waitress in a bar.

Jacqueline Smith, defendant's half-sister, allowed defendant to live with her from September 1984 to the day of his arrest. She stated that every day defendant drank alcohol heavily and used marijuana. On January 8, 13, and 15, 1985, she noticed that defendant was more active and talkative than usual and "feeling good" after snorting a white powdery substance up his nose. Under cross-examination, she stated that although she knew of defendant's habits, she continued to allow defendant to baby-sit her children. Furthermore, on the day of the incident, she saw defendant acting normally.

James R. Watts partied and drank beer with defendant on January 15, 1985, and saw defendant snort a white powdery substance up his nose. Also, during that night, while Watts and defendant were driving around in a residential area, defendant pulled out a gun and fired it twice into the air. Watts did not see defendant at any time on the day of the incident.

Dave Whittington, an employee of Tackett Wheels, Inc., saw defendant on the day of the incident at Tackett Wheels, Inc. Whittington stated that defendant appeared normal to him but was "awful" quiet. He did not see defendant consume any alcohol that day. However, about a month before the incident, Whittington received a phone call from defendant requesting him to meet him at a bar. At that time defendant repaid Whittington some money he had borrowed from him and requested him to go to the used car lot and take a certain car. When Whittington refused, ...


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