APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION
538 N.E.2d 669, 182 Ill. App. 3d 737, 131 Ill. Dec. 294 1989.IL.598
Date Filed: April 25, 1989; As Amended September 13, 1989.
Appeal from the Circuit Court of Cook County; the Hon. John J. Mannion, Judge, presiding.
JUSTICE SCARIANO delivered opinion of the court. BILANDIC, P.J., and HARTMAN, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SCARIANO
Ramon Montague, James Edens, and Deborah Weathersby were charged with murder, home invasion and attempt (murder) (Ill. Rev. Stat. 1983, ch. 38, pars. 9-1, 12-11, 8-4), all committed on March 21, 1984, at the residence of Harry Schenault in the City of Chicago. Montague was tried separately, convicted of all counts by a jury, and, after the jury declined to impose the death penalty sought by the State, he was sentenced to natural life imprisonment on the murder charge, 30 years to be served concurrently for attempt (murder), and 30 years, also concurrent, for home invasion.
This appeal concerns only Montague, *fn1 who assigns the following errors on appeal: (1) that the trial court improperly refused to permit defendant to introduce hearsay testimony regarding another murder; (2) that it wrongfully prevented the defense from impeaching key State witnesses against defendant; (3) that it prejudiced defendant by admitting evidence that defendant was in Federal custody when he was interrogated about this case; (4) that it permitted prosecutorial misconduct during closing argument, warranting a reversal of the convictions; (5) that it allowed the jury to view autopsy photos of the victim when the cause of death was not an issue in the case; (6) that its imposition of a sentence of natural life imprisonment must be vacated because the trial court based the sentence on the erroneous finding that the offense was brutal and heinous; and (7) that the delay of two years before the defendant was brought to trial violated defendant's right to a speedy trial.
Prior to trial, the Judge granted the People's motion in limine to preclude defendant from mentioning anything relative to a 1983 homicide in his opening statement, and further specified that if the issue arose during cross-examination of any of the State's witnesses, it would be taken up again in a side-bar conference.
On March 21, 1984, at about 3:15 p.m., Chicago police officer Airhart received a call that a home invasion was in progress at 2354 E. 80th Street. Airhart, the first officer on the scene, found Harry Schenault running northbound on the west side of Yates Avenue. Schenault told Airhart that a black man shot him, and Airhart observed injuries to Schenault's cheek and thigh. Airhart immediately called for an ambulance and proceeded to Schenault's home. There, Airhart saw a woman, later identified as Phyllis Alvarez, who appeared to be dead, lying on the staircase, and bleeding from gunshot wounds to the head.
Chicago Detective Flood was also summoned to the Schenault residence and arrived there at approximately 4:00 p.m. He noted Phyllis Alvarez' body on the staircase as he went up to Schenault's bedroom. The room appeared to have been ransacked: the bedside dresser drawers were open, their contents were in disarray, the bedsheets, bedspread and pillows were strewn about the room and there was a trail of blood on the carpeting.
After returning to his office, Detective Flood spoke with an employee of Schenault, Lilly Lovett, who informed him that Deborah Weathersby was involved in the occurrence. Consequently, the detective conducted a name check on Weathersby and learned that she was wanted for questioning in another matter. Lovett also described a man who had come into the Schenault house: he was black, his hair was in a curly perm, he wore a short dark jacket and he had a big gun with a long barrel. Lovett selected defendant's photo from among a group that Flood had shown her, but she said that she would have to see the person's build in order to be sure. On March 28, 1984, Flood went to the Metropolitan Correctional Center, from which he brought defendant to his office, and on that same day, Lovett picked defendant out of a lineup. The lineup photograph showed Montague to be 5 feet 7 inches tall, 140 pounds, with short hair and no mustache.
Lovett testified that prior to March of 1984, she had known Harry Schenault and Phyllis Alvarez for approximately two years; that she had known Schenault's driver, Ron Casey; that she had known Deborah Weathersby for about three months; and that Weathersby lived with her for three months immediately before the incident of March 21, 1984. Lovett then testified as to the events that occurred on that day.
She was at work, sitting on a bench near the wall in Schenault's bedroom, when Weathersby entered the house. From where Lovett was sitting, she could see a hallway which led to the foyer and the front entrance. The door bell rang, and Alvarez answered it. Alvarez informed Schenault that it was Weathersby, and Schenault instructed Alvarez to let her in as he was expecting her. Lovett then heard Alvarez scream, "Oh no!" followed by two shots. After she had jumped up and gone to see where the shots had come from, Lovett saw defendant holding a gun and hovering over Alvarez with one arm around her. Lovett screamed, "It's a robbery!" and ran into the bathroom in Schenault's bedroom, out into the hallway and right into defendant, who was carrying a gun.
Lovett begged defendant not to shoot her and ran up the stairs towards Alvarez' bedroom. Defendant was following her, and she continued to beg him not to shoot her. Once inside Alvarez' room, Lovett had a clear look at defendant's face. When defendant left the room, she tried unsuccessfully to lock the door, so she broke the window with a hard book and went through it. Because she had heard gunshots and was bleeding, she thought she had been shot, but then realized that she had cut her back on the jagged edges of the broken window. After Lovett had gone through the window and onto the roof, she went to the Yates Avenue side of the house, where she saw Schenault walking down the street, bleeding from his face and leg. Because she had sprained her hip, the police had to climb to the roof to get her down. Lovett was then taken to the hospital where she received 22 stitches for her cuts.
Detective John Solecki testified that when he and his partner, Joseph DiGiacomo, arrived at Schenault's house on the day of the occurrence, other police officers were already on the scene, so they canvassed the area surrounding 80th and Yates attempting to find witnesses or information regarding the case. Eight days later, Solecki went to South Shore Hospital to show certain photos to Schenault. However, because Schenault was suffering from gunshot wounds, Solecki was unable to interview him. Solecki testified on cross-examination that he came to know Schenault in May of 1983 during his investigation of the murder of Ron Casey, and that the only eyewitness to that killing, Phyllis Alvarez, viewed two lineups regarding that case. Solecki stated that although arrests were made, defendant was not one of them, and no one was ever prosecuted for the Casey homicide.
Co-defendant Deborah Weathersby, in testifying for the prosecution, admitted that she sold drugs for Schenault, that she agreed to testify against the defendant in return for a sentence of six years for home invasion, and that she had been in custody for more than two years at the time of her testimony in 1986. She stated that defendant was her boyfriend, that she knew Schenault in March of 1984, and that she had lived in his house at 80th and Yates from 1979 through 1981.
On March 21, 1984, at approximately 1 or 2 p.m., Weathersby walked to a grocery store on 81st and Cottage and met defendant and James Edens, whom defendant referred to as "Bob." Defendant told her that he wanted her to let them into Schenault's house; she agreed, so they went in Edens' orange Datsun to another store on 79th and Yates. Weathersby telephoned Schenault from the store and told him that she wanted to purchase a half-ounce of cocaine for $800 or $900 and that she was on her way over. Before the three left the store, defendant purchased a potato to silence his gun and put it in his briefcase. When defendant opened the briefcase, Weathersby saw some gray tape and a 30-30 sawed-off rifle that was approximately 14 to 16 inches long. While riding in the car to Schenault's home, she saw that defendant also had a .38 pistol.
When they arrived at Schenault's house, Weathersby and defendant, who had his briefcase and .22 pistol with him, went to the door. They rang the doorbell, and the housekeeper, Alvarez, let them in. After Lovett announced Weathersby to Schenault, Alvarez started up the stairs and defendant followed her. Next, defendant grabbed Alvarez around the head and Alvarez begged him not to kill her. Defendant then shot her in the head twice, and Alvarez fell to the bottom of the steps.
Defendant and Edens, who also had a gun out, then started up the stairs to Schenault's bedroom. After defendant went up the stairs, Weathersby heard gunshots and a lot of noise, as if someone were running. She heard Lovett say, "Please don't shoot me, Deborah is my friend," and remembers hearing Edens tell defendant that they would have to leave because Schenault was on the phone calling the police. Weathersby then heard three or four more shots. When they got outside to the car, Weathersby heard defendant say, "We got the old man, but we didn't get the bitch."
Following the incident at the Schenault home, the three drove to defendant's aunt's house on the west-side of Chicago to hide out. After two or three days, Weathersby went to Detroit, where she stayed with another of defendant's aunts, and on April 2, 1984, she returned to Chicago and turned herself in to the police.
After the People rested their case, defendant made a motion for a directed finding, which the trial court denied.
Thereafter, at a conference held in the Judge's chambers, and again at the close of the evidence, defense counsel objected to the jury's viewing three post-mortem autopsy photographs, arguing that there was no issue regarding the cause of death and that the photographs were prejudicial. ...