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09/20/89 the People of the State of v. Christopher Abernathy

September 20, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

CHRISTOPHER ABERNATHY, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

545 N.E.2d 201, 189 Ill. App. 3d 292, 136 Ill. Dec. 677 1989.IL.1447

Appeal from the Circuit Court of Cook County; the Hon. Ronald J. Crane, Judge, presiding.

APPELLATE Judges:

JUSTICE WHITE delivered the opinion of the court. McNAMARA* and RIZZI, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WHITE

Following a jury trial, defendant, Christopher Abernathy, was found guilty of the murder, attempted aggravated criminal sexual assault, aggravated criminal sexual assault, and armed robbery of Kristina Hickey. Defendant was sentenced to a term of natural life imprisonment for the murder, 30 years' imprisonment for the armed robbery and 30 years' imprisonment for the aggravated criminal sexual assault. The trial court merged the conviction of attempted aggravated criminal sexual assault into the conviction for aggravated criminal sexual assault.

Defendant appeals his conviction and sentence on the following grounds: (1) the trial court erred in denying his motion to suppress statements; (2) the trial court unduly restricted the defense's cross-examination of a key State witness; (3) the trial court erred in allowing the State's Attorney to show a videotape of Kristina Hickey to the jury; (4) certain remarks made by the State's Attorney in closing argument constituted reversible error; (5) the trial court erred in refusing to instruct the jury on involuntary manslaughter; (6) the trial court erred in imposing a sentence of natural life imprisonment; and (7) the Illinois penalty statutes for murder violate the due process and equal protection clauses of the United States and Illinois Constitutions. We affirm defendant's conviction and sentence.

The facts adduced at the hearing on defendant's motion to suppress statements and at trial follow.

MOTION TO SUPPRESS STATEMENTS

Anne Kolus, defendant's mother, testified that defendant has a learning disability. Defendant received average or just below average grades in grammar school and in high school. He dropped out of high school in his sophomore year because he could not understand the school work.

On cross-examination, Mrs. Kolus testified that in November of 1985, defendant was employed at a restaurant where he was learning to be a cook. Defendant has been able to perform tasks such as driving a car and maintaining employment.

Defendant testified that he was arrested in Mokena, Illinois, at approximately 1 p.m., on November 30, 1985. While at the Mokena police station, he asked Detective Kuester for an attorney. Later that day, he was transported to the Park Forest police station. Defendant also testified that he was taken to court on December 2, 1985, at which time an attorney was appointed for him. Between November 30 and December 2, 1985, he was not given the Miranda warnings. He was told that an attorney would be appointed for him. However, an attorney was not appointed for him during the questionings even though he had been asking for an attorney ever since his arrest., Defendant testified that prior to November 30, 1985, he had been arrested for shoplifting but not for any felony offense.

On cross-examination, defendant was able to recite the Miranda warnings and explain what the right to remain silent means. He claimed that he had learned the Miranda warnings from watching television while in jail. Prior to his incarceration, he did not know the Miranda warnings because he never had time to watch television.

Defendant could not remember being given the Miranda warnings by Detective Kuester at the Mokena police station. On the way to Park Forest, the Discussion centered on the best route to take to Park Forest. Detective Kuester did not discuss the death of Kristina Hickey with him. Once they arrived at the Park Forest police station, he was placed in a room where he was interviewed by Detective Kuester. Detective Kuester did not give him his Miranda warnings. Defendant could not remember signing a document dated November 30, 1985, in which he acknowledged that Detective Kuester had given him the Miranda warnings (hereinafter the waiver form). Defendant explained that Detective Kuester had made him sign a lot of papers, and he identified the waiver form as a document that Kuester had made him sign.

Defendant was able to read the waiver form at the hearing. The form contained the Miranda warnings and questions after each warning regarding whether defendant had understood the warning. In answer to each question on the form, defendant had indicated that he understood the warning given. However, defendant testified at the hearing that he did not understand the following warning: "Knowing these rights, you are willing to answer questions without first speaking to a lawyer." The form also contained the following questions and answers:

"Q. Prior to talking to me, did anyone strike you or force you to answer questions.

A. No.

Q. Prior to talking to me, did anyone make threats that anything would happen to you if you did not answer questions.

A. No.

Q. Prior to talking to me, did anyone promise you anything or offer you any reward of any type for answering questions.

A. No."

Defendant testified that he made a statement to Detective Kuester after signing the waiver form. He also gave Detective Kuester permission to take hair and other samples from his body as well as to search his car. He was not forced to sign the voluntary release forms for the samples. Detective Kuester then stopped questioning him. He was given dinner and taken to the lockup for the night.

Defendant testified that the morning after his arrest, Detective Kuester did not question him regarding Kristina Hickey's death. That afternoon, however, Detective Kuester told him that he had talked to several people that defendant had mentioned in the November 30, 1985, statement. Defendant told Detective Kuester that he had told him the truth and agreed to take a polygraph test. Detective Kuester then stopped the questioning. Later that afternoon, defendant was taken to the polygraph examiner's office where he asked to have an attorney appointed for him. Defendant testified, however, that he wanted to take the polygraph test. He signed a form waiving his constitutional rights because he wanted to take the test.

After the polygraph test, defendant talked with Detective Kuester in the polygraph examiner's office. Defendant testified that Detective Kuester did not give him the Miranda warnings at any time during this conversation. Detective Kuester "made him talk" about Kristina Hickey's death. He gave Detective Kuester a written statement regarding the circumstances of Kristina's death and was taken back to the Park Forest police station.

Defendant testified that, later that night, he talked to a State's Attorney who gave him the Miranda warnings for the first time. He was given the Miranda warnings a second time in the presence of a court reporter. He understood his constitutional rights a "little, but not all the way." He did understand that he had a right to an attorney and that he did not have to say anything if he didn't want to. However, he answered the State's Attorney's questions because "they weren't giving [him] one." He was then taken to the lockup.

Defendant testified that he cooperated with the police the whole time that he was in custody because he had nothing to hide. Defendant was then asked the following questions:

"Q. What did Kuester ever tell you to make you give a statement against your will?

A. That I could go home.

Q. He told you that if you confessed to the murder of Kristina Hickey, he would let you go home?

A. In a way, yes.

Q. What were his words that he used, sir?

A. I can't remember the exact words he used."

On redirect examination, defendant testified that he was upset and frightened at the time of his arrest. He did not understand the need to have an attorney represent him. The word "will" in the sentence "an attorney will be appointed for you" means "in the future."

On re-cross-examination, defendant was asked: "How could you ask for a lawyer, if you didn't know you needed one?" Defendant replied: "I always watched -- when I was outside, I would watch maybe TV once in a while."

Detective Carl Kuester testified that at, approximately 1 p.m., on November 30, 1985, he was told that defendant had been detained by the Mokena police department. He drove to the Mokena police station to transport defendant to the Park Forest police station. While at the Mokena police station, he advised defendant of his constitutional rights. Defendant indicated that he understood his rights. Detective Kuester then requested that defendant accompany him to the Park Forest police station. At the Park Forest police station, he placed defendant in the detective office. Defendant was not handcuffed. At approximately 4:05 p.m., he advised defendant of his constitutional rights for the second time. Defendant signed a waiver form indicating that he understood his rights. Defendant did not ask him for an attorney nor did defendant indicate that he wanted to remain silent. He then interviewed defendant. Defendant was fed and placed in a cell for the night at about 8 p.m. or 9 p.m.

Detective Kuester testified that in the afternoon of December 1, 1985, he talked with defendant regarding Kristina Hickey's death. He pointed out certain discrepancies between the results of his investigation and what defendant had told him the day before. Defendant volunteered to take a lie detector test or to take a truth serum. Detective Kuester drove defendant to Theodore Polygraph Service, where defendant took a polygraph test after he was advised of his constitutional rights. After the test, he told defendant his constitutional rights and talked with defendant regarding Kristina Hickey's death. Defendant gave him an oral statement regarding Kristina Hickey's death which defendant then reduced to writing.

Detective Kuester testified that later that evening the State's Attorney advised defendant of his rights and defendant made first an oral statement and then a statement that was recorded by the court reporter. Detective Kuester further testified that defendant never asked for an attorney or refused to talk. Defendant cooperated with the police during the entire investigation.

The parties then stipulated that on December 1, 1985, Assistant State's Attorney Paul Perry advised defendant of his constitutional rights after which defendant made an oral statement regarding Kristina Hickey's death. A court reporter then read the Miranda warnings to defendant. Defendant indicated that he understood each warning and gave a statement that was recorded by the court reporter.

TRIAL TESTIMONY

Patricia Hickey, Kristina Hickey's mother, testified that in the fall of 1984, Kristina was a sophomore at Rich East High School and sang in the school choir. On the evening of October 3, 1984, Kristina walked to school at 6:30 p.m., to sing in a choir concert. She was wearing a pink and white striped dress, pink and white jewelry, a mauve raincoat, a grey corduroy purse and grey shoes. Patricia Hickey asked Kristina if she wanted a ride after the concert, and Kristina indicated that she would rather walk home. The high school was less than a mile from Kristina's home and Kristina usually walked to and from school. Patricia Hickey urged Kristina to come home immediately after the concert and she promised to do so. Kristina did not come home that night, however. Patricia Hickey next saw Kristina's body at the funeral home.

Patricia Hickey identified the clothing that Kristina wore on October 3, 1984. She testified that the clothing was in good condition when Kristina left for the concert. She also identified pieces of a grey ...


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