APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION
537 N.E.2d 981, 182 Ill. App. 3d 148, 130 Ill. Dec. 652 1989.IL.500
Appeal from the Circuit Court of Cook County; the Hon. William Cousins, Judge, presiding.
JUSTICE SCARIANO delivered the opinion of the court. BILANDIC, P.J., and EGAN,* J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SCARIANO
Following a jury trial, defendant was convicted of murder, and, after the Judge held a death penalty hearing without a jury, he was sentenced to natural life imprisonment. He appeals, arguing that (1) the trial court erred in refusing to accept his pretrial waiver of a death penalty jury, in refusing to "life qualify" the jury, and in questioning the jury pursuant to Witherspoon v. Illinois (1968), 391 U.S. 510, 20 L. Ed. 2d 776, 88 S. Ct. 1770; (2) the trial court erred in allowing Dwight Moore to testify about an alleged sexual attack by defendant and in allowing testimony regarding the defendant's statement made while in custody; (3) the prosecutor's remarks during closing argument denied defendant his right to a fair trial; and (4) the trial court erred in refusing to submit an involuntary manslaughter instruction to the jury.
Artie Williams testified that on May 2, 1984, she helped her 10-year-old son, Jammie, get ready for school and gave him a key to their apartment since she would be doing errands when he returned home from school. When she arrived home that evening and discovered that Jammie was not in the apartment, she made a tour of the neighborhood for him, but without result, and then reported to the police that he was missing.
Jammie's body was discovered the next day on a platform behind a store near Lexington and California Avenues in Chicago. Dr. Robert Stein, the chief medical examiner of Cook County, testified that he was called to the scene, where he observed that Jammie was lying on his left side, with his right leg bent at the knee, that he was fully dressed, and that there were abrasions and contusions on his face and neck. Dr. Stein conducted an autopsy, which revealed injuries to Jammie's face, neck, chest, elbow, knee and the left side of his body. The internal examination revealed chest hemorrhages, lacerations in the lungs, hemorrhage in the mediastinum and injuries to the outer portion of the heart. Dr. Stein determined that the cause of death was a "compression injury causing a result of blunt injury and the manner of death, homicide." He further testified that such cause of death was compatible with being beaten with a table leg and that there was no evidence of a sexual assault.
Jay Link, Jammie's 11-year-old friend, testified that in the early evening of May 2, 1984, he and Jammie were playing in front of their apartment building, when defendant, who lived nearby, called them over to do some exercises. The boys crossed the street, but Jay's mother called him to come home, so he left while Jammie was talking with defendant.
Robert Armstead, 14 years old at the time of trial, testified that in late April 1984 defendant asked him if he wanted to make some money by helping him provide exercises for children. Robert and his friend went to Douglas Park with defendant and began doing push-ups, and while they were doing so, defendant touched them at the waist. No children showed up for the exercise class; hence, after a 10-minute wait Robert and his friend left. Defendant asked them to return the next afternoon, but the boys did not go back.
Over a defense objection, the State called Dwight Moore, an 11-year-old friend and neighbor of Jammie's. On the Monday of the week that Jammie disappeared, Dwight had gone to see defendant because defendant had told him he could make money tumbling. Defendant took him inside a church in the neighborhood and told him to take off his clothes. When Dwight refused, defendant pulled his pants down and felt his "privates," but as soon as defendant heard a knock on the door he told Dwight to put his clothes on and warned him, "If you tell anyone, I'll kill you." Dwight did not tell anyone about this incident until he spoke with the police six weeks later.
The police arrested defendant on June 12, 1984, and advised him of his rights before questioning him. Defendant denied holding exercise classes and denied knowing either Dwight or Jammie, whereas in a previous interview, on June 3, 1984, defendant told the police that he did know Jammie. When asked about going to the church with Dwight, he stated, "I don't want to talk about that."
The next day defendant was given a polygraph test by John Stout. At trial the jury was told that Stout was a civilian employee of the police department who had interviewed defendant. Defendant at first told Stout that he did not know Jammie, but that he had seen his picture in the paper; yet, later, he told Stout that he had seen Jammie and suspected that he was buying dope for his brother. He followed Jammie into a building and saw him fall, after which defendant went home.
After talking with Stout, defendant told a similar story to Officer Keane, but when Keane pointed out to him that his story contained discrepancies, defendant responded that he would now tell the truth and proceeded to give Keane yet another version of the incident. He claimed that Jammie came to the church to show him some flips, and after one particular flip, he landed on his head and broke his neck. Defendant then carried him to the landing where he was later found. After Keane informed defendant that Jammie did not suffer a broken neck, defendant again said he was going to tell the truth and rendered still another version of the occurrence.
Keane then contacted Assistant State's Attorney Vroustouris, who interviewed defendant and wrote out his statement. In his statement defendant related that Jammie was interested in exercise classes and wanted to show defendant how good he was. Jammie went to Solid Rock Number 2 Baptist Church at 742 South California in Chicago with the defendant and started doing exercises. While defendant was holding Jammie's leg so he could try a flip, he lost his footing and both he and Jammie fell. Defendant got up and turned Jammie over and noticed blood in his mouth. He shook Jammie but because he did not respond, defendant thought he was unconscious though not dead. Defendant then picked up a piece of a metal and wood table leg approximately 2 1/2 feet long and struck Jammie in the chest and the back of the neck. He then carried him to a porch near the church because he knew he had done "something bad" and did not want to get caught.
After he was found guilty of murder, defendant executed a written waiver of jury for the death-sentencing proceedings, and having heard arguments on both aggravation and mitigation, the trial Judge sentenced defendant to natural life imprisonment without parole.
Defendant first argues that the trial court erred in allowing the jury to be death qualified, or "Witherspooned," thus depriving him of his right to a fair trial by an impartial jury. Prior to trial defendant attempted to waive his right to a jury for sentencing at a death penalty hearing, but the Judge refused to accept the waiver, ruling that it was premature because it would not be binding if defendant changed his mind about it after trial.
The Illinois Supreme Court has held that a trial court must accept a pretrial waiver of a jury for death-sentencing proceedings if that waiver is knowing and voluntary (People v. Erickson (1987), 117 Ill. 2d 271, 513 N.E.2d 367; Daley v. Hett (1986), 113 Ill. 2d 75, 495 N.E.2d 513); however, that ruling is not retroactive. (People v. Erickson (1987), 117 Ill. 2d 271, 513 N.E.2d 367.) Defendant's trial began in January 1986, while Daley v. Hett was not decided until June 1986. Moreover, in Erickson, the court held that the trial court's refusal to accept a sentencing jury waiver before trial and the consequent death qualification of a jury did not entitle the defendant to a new trial. (117 Ill. 2d at ...