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09/29/89 the People of the State of v. Tommie Dale Et Al.

September 29, 1989





545 N.E.2d 521, 189 Ill. App. 3d 704, 136 Ill. Dec. 997 1989.IL.1568

Appeal from the Circuit Court of Cook County; the Hon. Michael P. Toomin, Judge, presiding.


JUSTICE BUCKLEY delivered the opinion of the court. MANNING, P.J., and CAMPBELL, J., concur.


Tommie Dale and Clarence Dukes (defendants) were charged with murder, rape, home invasion, residential burglary and robbery (Ill. Rev. Stat. 1983, ch. 38, pars. 9-1, 11-1, 19-3, 18-1). Prior to defendants' trials, the trial court granted defendants' motions for severance. Following the simultaneous bench trial of Dale and jury trial of Dukes, in which evidence applicable only to Dale's case was heard outside the presence of the jury, defendants were found guilty of all charges. For their murder convictions, the trial court imposed extended-term sentences of 60 years for Dale and 80 years for Dukes. Defendants also received concurrent sentences of 30 years for rape and home invasion, 15 years for burglary and seven years for robbery.

Dale appeals his sentences on the ground that they are excessive. We affirm.

Dukes appeals his convictions and sentences, contending the following: (1) the trial court committed reversible error in denying his motions to quash his arrest and suppress his statements; (2) he was denied a fair trial by the trial court's refusal to pose certain questions to the venire; (3) he was denied equal protection of the laws due to the State's exercise of peremptory challenges; (4) his sixth amendment right to confrontation and the rule against hearsay were violated by the introduction of certain evidence concerning his codefendant; (5) prejudicial error occurred in the introduction of improper rebuttal testimony of a collateral matter; (6) he was not proven guilty beyond a reasonable doubt; (7) he was denied a fair trial by improper prosecutorial comments during closing argument; (8) his constitutional rights were violated when he was found "death eligible" because the Illinois death penalty statute is unconstitutional; (9) the trial court relied on improper sentencing guidelines; and (10) his sentence is excessive and unfairly disparate to his codefendant.

Because the United States Supreme Court decision in Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712, decided during the pendency of this appeal, is retroactively applicable to the case at bar (Griffith v. Kentucky (1987), 479 U.S. 314, 93 L. Ed. 2d 649, 107 S. Ct. 708), it is necessary that we remand Dukes' case to the trial court for a two-part hearing on his contention that he was denied equal protection of the laws by the State's purposeful discrimination in the selection of jurors against a cognizable racial group, of which Dukes is a member. The record here demonstrates that 9 of 12 of the State's peremptory challenges were exercised on black prospective jurors, where the final venire consisted of four blacks. In light of the Illinois Supreme Court's comments in People v. Evans (1988), 125 Ill. 2d 50, 530 N.E.2d 1360, and the United States Supreme Court's language in Batson , we believe the determinations necessary to both facets of the Batson hearing -- in which the defendant must first make a prima facie showing of purposeful discrimination, and, if the defendant meets this burden, the State must then come forward with a racially neutral explanation for the exclusion of the jurors -- are appropriately to be made by the trial court, consistent with the dictates of the Batson opinion.

If the trial court finds that the State has purposefully discriminated in the selection of jurors, Dukes' conviction and sentence must be vacated and he is entitled to a new trial consistent with this opinion. If the court finds that Dukes has not made out a prima facie case of racial discrimination, or that the State has presented sufficient neutral explanations to rebut Dukes' prima facie case of racial discrimination, Dukes' convictions and sentence will be affirmed.

The lengthy evidence introduced in the case at bar will be narrated as follows. The evidence offered in connection with the trial court's denial of Dukes' pretrial motions to quash his arrest and suppress his statements will be set forth later in the opinion as the issues pertinent to those facts are addressed. The evidence adduced at the trials of both defendants is detailed below.

Eddie Thompson, a 38-year-old previously diagnosed schizophrenic, testified for the State as follows: On November 13, 1983, at approximately 11 p.m., she and her 60-year-old husband, Joe Thompson, who suffered from curvature of the spine, were at the "Your Place Lounge," a bar located around the corner from their 2333 East 70th Place apartment. While at the bar, Joe introduced Eddie to a man named "Tommie." After a few drinks, the Thompsons proceeded to their apartment, but Eddie later returned to the bar to retrieve her missing keys. An argument ensued between the Thompsons upon Eddie's return to the apartment without the keys, and Joe thereafter locked Eddie out of the apartment.

Eddie returned to the bar at approximately 1 a.m. to call the police. There, she told Tommie that she was locked out of her apartment, requested his assistance, and offered to let him sleep on the couch with her. Tommie and Eddie then went to the Thompson apartment.

Following Joe's refusal to open the apartment door, Tommie kicked the door in and grabbed Joe. Eddie told Tommie to leave Joe alone and gave Joe bus fare to leave the apartment upon Tommie's demand. Tommie proceeded to take the rest of Eddie's money, approximately $38, and a second purse from her bedroom. Tommie left. The police came to the Thompson apartment and left.

Tommie later returned to the Thompson apartment with a second man whom Eddie had never seen before. Eddie invited them into the apartment. Joe and the second man began fighting. When Joe fell to the floor, the second man kicked him in the head and mouth. Both men threatened to kill Eddie if she told anyone. They then ransacked the apartment. The second man struck Eddie and broke her nose. Both men told Eddie and Joe to remove their clothing. Tommie told Eddie to lie on the couch and then inserted his penis into her vagina. The second man thereafter performed the same act on Eddie. Both men gathered electrical cords from the apartment. The second man tied up Joe and Eddie with the cords, during which time Tommie packed clothing and food in two black and burgundy suitcases. Joe was tied to a chair with the cord wrapped around his neck "Chinese style," with the cord extending to his wrists and ankles, which were tied behind his back. Both men then left.

Subsequent to the men leaving the apartment, Eddie broke loose from the cords and untied Joe. She thought he was dead at this time. Eddie waited an hour and a half until daybreak and then went to her aunt's house to call the police.

Lula Thompson, Eddie's aunt, testified that around dawn on November 13, 1983, Eddie came to her house and stated that two men had beat them and raped her in their apartment. She noticed bruises and swelling on Eddie's face at the time.

Dr. Jung Wang testified that he treated Eddie at Jackson Park Hospital on November 14, 1983, for a broken nose and a bruised and swollen face. A genital exam revealed no injuries, tearing or discharge. Eddie told Wang at that time that two men broke in, tied her up, raped her, and beat up her husband.

Dr. Edmond Donghue, deputy chief medical examiner, testified that Joe Thompson died from ligature strangulation. Sixteen external injuries to his head and neck area were found, consistent with a beating.

Police crime scene investigator Thomas Reynolds collected blood, cloth, cords and fingerprints from the Thompson apartment at 10:15 a.m. on November 14, 1983. John Olegniczak, a latent fingerprint examiner, testified that a fingerprint was identified as matching defendant Dale's left index finger. Officer Edward Triggs testified to the ransacked condition of the apartment, which he observed on November 13, 1983. He also testified that he spoke to Eddie briefly at the crime scene and that her face was bruised and swollen. Photographs depicting the apartment and Eddie on the day in question were entered into evidence.

Douglas Middleton, the bartender at the "Your Place Lounge" on the evening of November 13, 1983, testified that on that evening, Joe, Eddie and Dale were at the bar, all of whom he knew from contacts on previous occasions. Dukes arrived after Joe and Eddie had left the bar, at which time Dale first introduced Dukes to Middleton. Eddie reappeared at the bar, and Dale later left with her to provide assistance in entering her apartment. Dale returned 45 minutes later, and Dale and Dukes remained at the bar until they left together at closing at approximately 3 a.m. Although Middleton knew Dale by his first and last name, he did not give the last name to the police until November 7, 1984. Middleton identified Dale in a lineup on November 8, but did not identify Dukes because he was afraid of him.

Detective Grefshiem testified to the investigation leading to the arrest of defendants. He stated that, although Middleton had previously denied knowledge of the incident, he had a conversation with him on November 7, 1984, a year after the incident. Following this conversation, Detectives Grefshiem and Markham proceeded to Dale's home at 1850 South Drake and arrested him as he was leaving the building.

After a conversation with Dale, the detectives returned to Dale's home and recovered a black and burgundy suitcase from Dale's grandmother. The detectives then proceeded to Dukes' apartment at 1847 West Lake Street, where they arrested him.

On the evening of November 7, 1984, Eddie tentatively identified Dale in a lineup, but did not identify Dukes. Middleton viewed a second lineup conducted on November 8 and identified Dale, but did not identify Dukes. On cross-examination, Grefshiem reasserted that he observed Dukes in the lineups on November 7 and November 8 and admitted that he had testified at an earlier hearing that he did not see Dukes after 7 p.m. on November 7.

Outside the presence of the jury, a stipulation was entered that Dale gave a written statement, transcribed by court reporter Janet Lupa, to Assistant State's Attorney John Kinnane on November 8, 1984. In this statement, Dale stated that he was at the "Your Place Lounge" on November 13, 1983, with his brother, Dukes. A woman told him she had been locked out of her apartment, and he and Dukes accompanied her to her apartment to render assistance. At the apartment, Dukes kicked the door in, hit Joe several times, and raped Eddie while Dale packed things in a suitcase. Dukes left the suitcase at their mother's home.

Assistant State's Attorney Ray Brogan read to the jury a court-reported statement purportedly made by Dukes on November 9, 1984, in which Assistant State's Attorneys Brogan and Lynch, Detective Glynn and court reporter Janet Lupa were present. The statement indicates that on November 13, 1983, Dukes received a telephone call from his brother Dale, who stated, "Clarence, come on down to the bar and have a couple drinks with me. There is a bitch down here dying to fuck." Dukes went to the "Your Place Lounge," where a woman offered Dukes and Dale $45 to assist her in entering her apartment. All three arrived at Eddie's apartment at approximately 1 a.m.

Dale kicked the door open, and they entered the apartment. A man in his late fifties swung at Dale, who in turn hit him and knocked him down. Dale told the man to take off his clothes and tied him up "Chinese style," with a rope around his head, neck and arms. The woman offered both Dale and Dukes $45 if they would have sex with her. Dale had sex with her first, then Dukes had sex with her while Dale ransacked the apartment. Before they left, Dale tied the woman to a chair with a lamp cord. They each took one black and maroon suitcase as they left. At the end of this statement, Dukes stated that he had not been mistreated by police and that he had been given coffee and cigarettes.

Brogan further testified to the jury, over defendant's objection, that he was aware of another statement made by someone else and that he checked Dukes' statement against it and found Dukes' statement to be accurate.

Court reporter Lupa testified that at the time she took Dukes' court-reported statement, she did not observe him being mistreated and that she took a photograph of Dukes, introduced as an exhibit, which accurately depicted his appearance at the time.

Dukes testified to the events surrounding his arrest and post-arrest detention. At the time of his arrest on November 7, 1984, at 6 p.m., the police, with guns drawn, came to his door and stated that his brother Dale had been killed and asked him to accompany them to the police station. He had not eaten since lunch that day, and his only opportunity to sleep during his upcoming detention was in a "bullpen" on a steel bench, where he did not sleep too much. After standing in a second lineup, Grefshiem took him to a small room and beat him on the chest. Later, after ...

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