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02/09/89 the People of the State of v. Donald C. Scherzer

February 9, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

DONALD C. SCHERZER, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

534 N.E.2d 1043, 179 Ill. App. 3d 624, 128 Ill. Dec. 598 1989.IL.154

Appeal from the Circuit Court of Du Page County; the Hon. Robert A. Nolan, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE UNVERZAGT delivered the opinion of the court. INGLIS and DUNN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE UNVERZAGT

The defendant, Donald Scherzer, was charged by indictment in Du Page County with attempted murder, conspiracy to commit murder, armed violence (based on aggravated battery), aggravated battery, and armed robbery. (Ill. Rev. Stat. 1985, ch. 38, pars. 8-4(a), 8-2(a), 33A-2, 12-4(a), 18-2(a).) The conspiracy charge was nol-prossed, and a jury found the defendant guilty of the remaining charges. The trial court merged the aggravated battery conviction into the one for armed violence and imposed concurrent 14-year terms on the defendant for each of the three remaining convictions.

The defendant raises four issues: (1) whether he was proved guilty beyond a reasonable doubt; (2) whether the court erred in admitting redacted transcripts of a conversation between the murder solicitor and defendant's codefendant; (3) whether the court erred in refusing to instruct the jury on the affirmative defense of compulsion; and (4) whether the armed violence conviction must be vacated because that offense and the attempted murder were based on a single act and because the verdicts are legally inconsistent.

The charges arose from the October 4, 1985, attempted murder of Carol Hamman. At trial, the State presented evidence that defendant and his business partner, William Moore, were paid by Hamman's husband, Lloyd, to murder her and that Moore and the defendant entered Carol Hamman's residence, where she was beaten, strangled, and left for dead. The defendant's theory at trial was that he had been duped by William Moore into believing that no violence would occur, that he personally engaged in no violence, and that he had been tricked and forced into participating in the crime.

Carol Hamman testified that in August 1984 she moved out of the home she shared with her husband, Lloyd, and into the Naperville home of her friend, Barbara Garelli. On October 3, 1985, a man, whom she identified as William Moore, came to her door and told her he was interested in buying the Garelli residence. Hamman gave Moore a 10-to 15-minute house tour. Hamman explained to Moore her girlfriend owned the home, and Moore said that if he was interested in purchasing the residence, he would contact the realtor. Hamman told him that her girlfriend was leaving for Florida the next day.

Moore returned the next evening about 7:10 with a man Hamman identified as the defendant, who was introduced by Moore as his partner. Hamman showed the men around Garelli's home for about 20 minutes, and, while she was walking from the master bedroom to the guest bathroom, she was hit from behind. Hamman did not know which man had been standing directly behind her. Everything went blank until she awoke facedown in the bedroom. She saw two figures and felt someone yanking at her right hand and fingers. She could not move her left hand. She asked the men to stop hurting her. They kept beating her, and she passed out. She then felt her head being jerked up. She felt a plastic rope or cord around her throat and had the sensation of being strangled from behind until she passed out again. Hamman stated that she could not determine which man or if both were doing the strangling because she was lying facedown on the floor.

Hamman later regained consciousness, stood, went into the bathroom, looked in the mirror, found herself covered with blood, and wrapped several towels in succession around her head. She went into an office bedroom to telephone for help but the telephone cord was missing. Using the kitchen phone, she telephoned her girlfriend, Ruth Portwood, at work. Portwood arrived at the Garelli residence within 10 to 15 minutes. The paramedics and police arrived soon afterwards.

Hamman was transported to the hospital where she noticed her wedding rings, sapphire cocktail ring, earrings, and a gold necklace bearing her name were missing from her body. She received 100 stitches in her head and eye. She sustained two broken knuckles and one broken finger.

On cross-examination, Hamman testified that she had filed for divorce in August 1985 and sought $250,000 in alimony. She remembered the telephone ringing at the Garelli residence on the night of October 2. Her friend Barbara answered, a man's voice asked for Carol, and she handed Hamman the telephone. All Hamman heard was breathing, and she hung up.

Ruth Portwood testified that after the police arrived, she walked through the house and found blood on the bedroom floor, walls and woodwork. Hamman's gold necklace, which bore the name "Carol," was lying in a pool of blood on the master bedroom floor.

Naperville police officer Larry Dickson discovered also an earring clasp and earring in the bloodstain in the master bedroom. In the office bedroom, he found a red stain on a chair rail and a telephone receiver with no cord lying on the couch. The phone cord was never recovered.

Dickson identified a three-eighths inch diameter piece of metal marked S.R., the logo for the Sturm Ruger Firearms Company, which he had found. This logo usually appears on the wooden handle of a revolver, a third of the way from its base. Two feet from the bloodstain he also found a small piece of wood. Dickson believed that the wood came from a firearm handle, but he could not identify its manufacturer, nor could he determine the caliber or size of the weapon.

It was stipulated that if emergency room doctor Joellyn Reese testified, she would state Hamman had been treated for multiple lacerations to her scalp, most of which were to the bone. Forty sutures to the skin and 10 to the tissue below the skin were required. Reese's opinion was that Hamman's injuries were consistent with being struck repeatedly with a hard, blunt object such as a gun. Lacerations on Hamman's right index finger and an associated fracture were consistent with Hamman's being struck on the right hand with a blunt instrument. In addition, there were multiple bruises on Hamman's neck which indicated that she was choked by hand. Reese did not observe any injuries indicative of Hamman having been strangled with a cord or rope.

Naperville police detective Michael Cross testified that in investigating the crime, there were conversations with Lloyd Hamman and William Moore. On October 11, Cross went to Moore's Meat Market in Naperville, which was owned by Moore and the defendant. Cross went to the defendant's apartment above the market at 8 p.m. and told defendant that Moore had been arrested for the October 4 attack on Hamman. The defendant denied any knowledge of the incident. When asked, he told the officers that he had a gun in his car trunk, and he authorized a search of his car and the market.

Cross testified the defendant denied being with Moore on October 4, but he agreed to go to the police station, where he was fingerprinted and photographed. At 10 p.m., he gave Cross some background information about himself. The defendant stated he and William Moore lived in the same neighborhood in Mundelein between 1976 and 1981 and that their children played together. Moore was a meatcutter and asked the defendant to go into business with him in 1983 or early 1984, but the deal fell through. In 1984 the two bought a meat market in Naperville and named it Moore's Meat Market. The defendant found Moore to be a nice guy but a person who liked to brag. Once Moore bragged about planning bank robberies. The defendant again denied his knowledge of the October 4 incident but showed signs of being nervous. Cross told the defendant he did not think he was telling the truth and that he believed the defendant had gotten involved in something over his head. The defendant then stated that he "was there."

In an oral statement to Cross after being advised of his Miranda rights, the defendant stated that two months prior to October 4, Lloyd Hamman, a frequent customer of the market, entered the store and asked if Moore would "take care of" his wife. Hamman and Moore had several conversations in this vein, and on August 25, Lloyd asked Moore to kill his wife for $25,000. The defendant thought that this was just talk, but he received $6,250 from Moore, which was half of the initial $12,500 Hamman had promised Moore for killing his wife. The defendant spent some of the money to pay bills, bought some appliances and a VCR, and loaned $2,800 back to Moore for the purchase of a car. According to Cross, the defendant related the plan was for Moore to view the house where Carol Hamman was staying, which was for sale, return later with him, introduce him as his partner, and they would kill Carol Hamman. The defendant and Moore drove by the house four or five times during the two weeks prior to October 4. Moore told the defendant that he had entered the home, viewed it, and seen Carol Hamman.

The defendant told the officer that they closed the store at 6:30 p.m. on October 4. He went upstairs, cleaned up, told his wife he was going out for the evening with Moore, and left. They drove to the house where Carol Hamman was staying. Moore rang the doorbell and introduced the defendant to Carol Hamman as his business partner. Hamman let Moore and the defendant in to tour the house. As Moore, the defendant and Hamman left the master bedroom, Moore pulled out his .357 Magnum revolver and hit Carol Hamman three to four times on the head until she fell. The defendant told Cross he took the wedding ring from Hamman's finger and put it in a bag with other jewelry taken from the house. Cross stated the defendant told him he could not remember who strangled Hamman with the telephone cord. After the incident, the defendant and Moore went to the market to clean up and then went to Niles to O'Donovan's Tavern, where they planned to go to have drinks and play darts in order to establish an alibi. They threw the bag with jewelry into the dumpster near O'Donovan's. The last place the defendant saw the gun was in the back room of the meat market.

Detective Cross identified people's exhibit No. 14, which was a voluntary statement the defendant wrote on October 11 immediately after giving his oral statement. With several grammatical corrections, the statement reads as follows:

"About two months ago, Bill told me of a customer who has shopped with us since we took over the store. He told me he wanted his wife taken care of. I believed that this was just another one of his stories, that he planned to take this Lloyd for money because he would have no one he could tell. So I went along with it. This went on for weeks which only convinced me more it was only a con to get his money. We went by the house, but there was always a reason that nothing could be done. Then on that Friday night we stopped in front of the house, and got out. I still was sure that nothing would happen, so we went to the house and inside. We went through part of the house and everything was fine. Then as we were leaving one of the bedrooms, Bill started hitting her. The next thing I remember, I pulled off her ring, and Bill was saying, 'Let's go, let's go.' I didn't believe what had happened. We drove to O'Donovan's in Niles. We shot darts and drank for a couple of hours, then went home. The sum of money to be paid was $25,000. Half before and half after. I never believed that there would be an after, because I didn't believe it would ever happen. I received $6,250 but Bill borrowed $2,800 back to get a car."

On cross-examination, Detective Cross remembered that when he asked the defendant about the phone cord, the defendant stated that it must have been put into the bag with the jewelry. In his written report, Detective Cross wrote that the defendant told him he did not know who had strangled Hamman, not that he did not remember who had strangled her. Cross remembered the defendant told him he could not describe the jewelry that had been taken because things were happening so fast, he was in a daze because Moore had actually done it. Cross stated the defendant told him he never thought Moore would "go through with it."

On redirect examination after refreshing his recollection with his written report, Detective Cross stated the defendant did not remember what happened to the bag of jewelry because "he was in a daze that they had actually done it." On re-cross-examination, Detective Cross admitted the notes he took at headquarters from which his ...


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