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10/25/89 the People of the State of v. Andrew Kokoraleis

October 25, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE

v.

ANDREW KOKORALEIS, APPELLANT



Before this court the defendant maintains that trial counsel's admonition to the jurors was insufficient because closing arguments are not evidence and thus could not have corrected the false impression the defendant claims to have arisen from the statement of conviction.

SUPREME COURT OF ILLINOIS

547 N.E.2d 202, 132 Ill. 2d 235, 138 Ill. Dec. 233 1989.IL.1671

Appeal from the Circuit Court of Du Page County, the Hon. Edward W. Kowal, Judge, presiding.

APPELLATE Judges:

JUSTICE MILLER delivered the opinion of the court.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MILLER

Following a jury trial in the circuit court of Du Page County, the defendant, Andrew Kokoraleis, was convicted of the murder and aggravated kidnapping of Lorraine Borowski. At a capital sentencing hearing requested by the State, the same jury determined that the defendant was eligible for the death penalty and that there were no mitigating circumstances sufficient to preclude imposition of that sentence. The trial Judge accordingly sentenced the defendant to death for the murder conviction; the Judge later sentenced the defendant to an extended term of 30 years' imprisonment for the conviction for aggravated kidnapping. The defendant's execution was stayed pending direct review by this court (Ill. Const. 1970, art. VI, § 4(b); 107 Ill. 2d Rules 603, 609(a)).

At trial the State presented evidence of the victim's disappearance, the discovery and identification of her remains, and the defendant's oral and written confessions to her abduction and murder. Over objection, the State was also allowed to introduce evidence of the defendant's participation in two similar murders. The defendant testified in his own behalf at trial; he recanted his confessions, and he denied having had any part in the offenses charged here and in the other crimes in which the State attempted to implicate him.

The victim in this case, 21-year-old Lori Borowski, disappeared on Saturday, May 15, 1982. Lori was employed as a secretary in a real estate office in Elmhurst, and a neighbor saw her leave for work around 8:15 that morning. Lori's office was located about three blocks from her apartment, and she would walk to work. Lori's employer, Don Stibbe, arrived at the office between 8:45 and 9 o'clock on the morning of her disappearance. The office had not yet been opened, though Lori normally would have arrived by 8:30. Mr. Stibbe found some objects on the pavement in front of the office -- shoes, keys, cosmetics, coins, and a hand tool, a nutdriver. Later that morning Mr. Stibbe reported Lori's disappearance to Elmhurst police. The shoes and keys found in front of the office were subsequently identified as Lori's.

Fredrick Moberley, who owned a store located in the same shopping plaza as the office where Lori was employed, arrived at work around 10 minutes to eight on the morning of Lori's disappearance. At that time Moberley saw a reddish-orange van parked in an area of the lot that normally was empty; he did not notice any shoes or other items in front of the real estate office, which was located about 50 feet from his own store. Shown a photograph of the van allegedly used in Lori's abduction, Moberley testified that the vehicle depicted was similar to the one he had seen in the parking lot on May 15, 1982.

The victim's skeletal remains were discovered on October 10, 1982, in a cemetery in Darien. The remains were found in an unused portion of the cemetery and were about 120 to 130 feet from a gravel road. The victim's neighbor identified the blouse and slacks present on the body as the same clothing the victim was wearing on the morning of her disappearance. The victim's blouse had been raised to armpit level, and her bra had been lowered. A purse was found some 30 feet away, and items of jewelry were found on or near the remains. At trial the victim's mother, Mrs. Lorraine Mae Borowski, identified the purse and jewelry as Lori's.

Identification of the remains was made through the aid of dental records and X-rays, and a post-mortem examination was conducted by Frank Orlosky, professor of physical anthropology at Northern Illinois University. At trial, Professor Orlosky testified that when the remains were discovered skin covered the front surface of the victim's body, including the lower thoracic region, part of the abdominal region, and the right leg and part of the left leg. The navel and right nipple were present, but the left nipple was not; the skin ended about two inches below where the left nipple would have been. Professor Orlosky did not find any signs of trauma or evidence of animal tooth marks on any part of the skin, including the portion from the victim's chest area. He believed that there were several possible explanations for the absence of the left nipple, including decomposition, insect or other animal activity, and amputation. The post-mortem examination disclosed a number of bone injuries. Professor Orlosky found three frontal sites of trauma in the upper chest region. All three wounds were small and circular, and he believed that they were consistent with stab wounds from a sharp instrument, such as an ice pick. There were also frontal wounds on two lower vertebrae, but Professor Orlosky was unable to determine whether or not they had been caused by the same stabs that had produced the wounds in the victim's upper chest. Professor Orlosky found three separate wounds to the victim's back, which he believed could have been caused by either a knife or an ice-pick type of instrument. In addition to the injuries already described, Professor Orlosky found that the victim's nasal bone had been fractured.

The defendant was eventually arrested in connection with the abduction and murder of Lori Borowski. On October 20, 1982, Chicago police officers stopped a reddishorange van that matched a description given to the police by a crime victim. The van was being driven by Edward Spreitzer and belonged to Robin Gecht. In a subsequent search, three knives were found in the back of the van. The inside handle on the back door was missing; according to the trial testimony, the door could be opened only by inserting a tool where the lock should have been, and the nutdriver found with Lori Borowski's keys and other effects in front of her office could have been used for that purpose.

Spreitzer and Gecht were arrested sometime later, and during the evening of November 7, 1982, Spreitzer led police officers to the defendant's home in Villa Park. The defendant returned that night with the officers to Area 5 headquarters in Chicago. The defendant was questioned that evening and the following two days. During that period the defendant confessed to the murder of Lori Borowski and to the murders of several other women.

The defendant gave law enforcement officers both oral and written statements concerning his role in the murder of Lori Borowski, and the defendant's confessions were introduced into evidence at his trial. Detectives Warren Wilkosz and John Sam of the Du Page County sheriff's office questioned the defendant about the Borowski murder two days after his arrest, on November 9. Detective Sam placed three photographs of Lori Borowski before the defendant and asked the defendant whether he could identify the person depicted in the photographs. At trial Wilkosz testified that the defendant responded, "That is the girl that Eddie Spreitzer and I killed in the cemetery." The defendant went on to say that one morning during the spring of 1982 he and Spreitzer were driving in Gecht's van on Route 83 in Elmhurst. They entered a parking lot, and they saw Lori Borowski and forced her into the van. The defendant said that they then drove to a cemetery, where both he and Spreitzer beat and stabbed the victim. When Lori was dead, they dragged her body into some weeds. At the Conclusion of the oral statement the defendant agreed to provide the officers with a written statement, which he then wrote out by hand, repeating in all pertinent respects the contents of his oral confession.

Over defense counsel's objection, the State presented evidence of the defendant's participation in two other murders: that of Linda Sutton in May 1981, and that of Shui Mak in May 1982. According to the trial evidence, 26-year-old Linda Sutton, who lived with her mother in Chicago, disappeared on the evening of May 23, 1981. Her body was found on June 1, 1981, in a field near the Brer Rabbit Motel, in an unincorporated area of Villa Park. The victim's hands were cuffed behind her back; her slacks and underpants had been pulled down to the knees, and her sweater and bra had been pulled up around her shoulders.

An autopsy was performed later that day by Dr. David Barrett, director of pathology at Central Du Page Hospital. The victim's breasts and anterior chest wall were absent, and several ribs were in disarray. Dr. Barrett found nicks or cuts on a number of the victim's ribs, which could have been caused by a sharp blade or object. Dr. Barrett concluded that the victim had died as a result of stab wounds and blood loss associated with stab wounds. Dr. Barrett testified that several years after he performed the autopsy he was asked to reconsider his original findings in light of certain statements that had been made concerning the victim's death. Dr. Barrett had originally attributed the absence of tissue in the victim's breast area to decomposition and animal activity. Later, however, Dr. Barrett was asked whether the breast tissue could have been amputated prior to the victim's death. Although Dr. Barrett had not considered that possibility at the time of the autopsy, he concluded, based upon an examination of the autopsy photographs, that the condition of the body was "very consistent" with the hypothesis of breast amputation. Dr. Barrett explained that the chest wounds were symmetrical and ended abruptly, and he did not believe that animal activity would have caused tissue damage of that nature. According to Dr. Barrett, many different types of weapons could have been used to amputate the breasts, including a knife or a length of wire.

At trial, the State introduced into evidence a number of inculpatory statements made by the defendant concerning the Linda Sutton murder. The defendant's initial statement in that case was made to Chicago Police Detective Thomas Flynn, who interrogated the defendant soon after his arrest on November 7, 1982. Detective Flynn testified that the first murder mentioned by the defendant was that of a black woman, whom the defendant said he and Gecht had picked up in Gecht's van in Chicago. They took the victim to a lot behind the Brer Rabbit Motel in Villa Park, where they had sexual intercourse with the victim and then stabbed her several times. The defendant also said that Gecht took a piece of piano wire and used it to sever the victim's left breast. According to the defendant, Spreitzer was also present at that time.

The defendant later gave a more detailed account of Linda Sutton's murder to Robert Bastone, then an assistant State's Attorney in Cook County, and to Detective John Philbin. On this occasion the defendant said that in spring or early summer of 1981 he and Gecht were driving in Gecht's van on the near north side of Chicago, in the Rush Street area. The defendant, who was in the back of the van, heard Gecht speak with a woman, who then entered the vehicle. They drove to the Brer Rabbit Motel in Villa Park, where they found Edward Spreitzer. Gecht ordered the victim to get out of the van, but she refused. At Gecht's request, the defendant and Spreitzer then pulled the victim from the van. Gecht struck the woman several times, and she fell to the ground. Gecht and Spreitzer then dragged her to a field behind the motel. The defendant said that he then returned to the van and sat in the front seat. According to the defendant, Gecht pulled the woman's slacks down and Spreitzer held her arms; Gecht lowered his own trousers and raped the victim. Afterwards, Gecht removed a homemade hatchet from the back of his pants and struck the woman three or four times in the chest. Gecht returned to the van a short time later. The defendant saw blood on Gecht's hands and on the hatchet. Gecht and the defendant left in the van, and Spreitzer drove away in his own car.

The defendant subsequently gave both oral and written statements concerning the murder of Linda Sutton to Detectives Wilkosz and Sam of the Du Page County sheriff's office. The defendant identified photographs of Linda Sutton as the woman who had been killed at the Brer Rabbit Motel in Villa Park. The defendant told the detectives that on May 23, 1981, he and Robin Gecht drove in Gecht's van to what the defendant said was a black neighborhood in Chicago. There, they forced the victim into the van and then drove to the Brer Rabbit Motel in Villa Park. The defendant said that Gecht took the victim into some bushes and raped her, and that Gecht later beat the victim with his fist in the head and shoulder area and struck her with an ax on the upper part of her body. Edward Spreitzer arrived, and Gecht and the defendant later returned to Gecht's home. The defendant subsequently provided a written statement concerning the murder of Linda Sutton. In that statement, the defendant said that the victim had been picked up in the Rush Street area of Chicago. The defendant stated that he "watched in shock" as Gecht struck the victim with the ax, and that he "didn't know what was going on."

The State also presented evidence of the defendant's participation in the abduction and murder of 30-year-old Shui Mak in May 1982. The victim's sister, Mrs. Lin Mak Zuehsow, testified that around 1 a.m. on May 30, 1982, the family returned home to Lombard from the restaurant they operated in Streamwood. Mrs. Zuehsow was in one car with the parents, and Shui and a brother were in a second car. It appears that during the trip Shui got out of the car in which she was riding. Upon arriving home, Mrs. Zuehsow saw that Shui was missing; after speaking with her brother, Mrs. Zuehsow drove back to look for her sister but was unable to find her. The trial Judge sustained a hearsay objection to the witness' testimony that she learned from her brother that Shui had exited the car following an argument.

Shui Mak's skeletal remains were found on September 30, 1982, in a wooded area near a new housing development in the northwest part of Cook County. The victim was clothed, but her sweater and the zipper on her slacks were both torn. A necklace found on the remains was identified as belonging to the victim. Dr. Eupil Choi, a pathologist employed by the Cook County medical examiner's office, performed an autopsy on October 1, 1982. Dr. Choi found multiple fractures of the victim's skull, which he attributed to trauma from a blunt instrument. Dr. Choi also found two superficial fractures of the sixth and seventh ribs on the left side, in the high stomach area, and a complete transection of the left forearm bone. The cause of death was blunt trauma to the head and fractures of the ribs. Dr. Choi said that he did not find evidence of stab wounds, though he was unable to eliminate stabbing as a possible cause of the victim's rib injuries.

The defendant made an oral statement concerning the murder of Shui Mak to Assistant State's Attorney Bastone and Officer John Philbin, and this statement was also introduced into evidence at trial. The defendant told Bastone and Philbin that in late May or early June 1982 he and Edward Spreitzer were driving in Gecht's van somewhere in the western suburbs when they saw a woman walking alone. Spreitzer stopped the van and asked the woman if she needed a ride; the woman, whom the defendant described as "Oriental," accepted the offer. After driving for 10 or 15 minutes they stopped in a field, in an area where new houses were under construction. According to the defendant's statement, Spreitzer got out of the van and told the woman to get out, but she refused. The defendant and Spreitzer then pulled the woman from the van. Spreitzer hit the woman several times, and she fell against the side of the van. They dragged her body a short distance; Spreitzer then lifted the woman's sweater and stabbed her three or four times with a kitchen knife. The defendant said that he became ill and went back to the van. Spreitzer returned to the van a short time later, and the two drove off.

The defendant testified in his own behalf at trial. He explained that he had worked for Robin Gecht, an electrician, from the middle of 1981 until May 1982, and that he had also served as a live-in baby-sitter for Gecht's children. The defendant said that he met Spreitzer in 1978 or 1979. The defendant denied having any role in the Borowski, Sutton, and Mak murders, and he maintained that before talking to the investigating officers he had no knowledge of those crimes. The defendant insisted that he had been "framed" by the authorities, explaining that the officers had provided him with various facts about the crimes and had then forced or induced him to repeat the information in his statements. The defendant asserted that on several occasions different officers promised him lenient treatment in exchange for statements implicating Gecht and Spreitzer in the murders and that the officers, at other times, struck him.

The defendant testified that following his arrest he was questioned until 5 o'clock the next morning, when he was finally permitted to sleep on four plastic chairs in the interrogation room. After a short nap, he was questioned again. The defendant said that he was struck sporadically from 1 o'clock until 4 o'clock during the afternoon of November 8. On one occasion a blanket was placed over his head and he was then hit several times. The defendant testified that during the afternoon questioning a number of law enforcement officers supplied him with information about the Borowski, Sutton, and Mak murders.

The defendant testified that around 4 o'clock that afternoon he accompanied a number of law enforcement officers to Schiller Woods, to point out to them the place where he had told them some bodies had been buried. The defendant testified that he gave that information to the officers so that they would stop hitting him. The defendant directed the officers to a clearing, where the officers gave him a shovel and told him to dig. Some time later, the police ordered the defendant to lie down in one of the holes. According to the defendant, the officers shoveled dirt on him. One of the officers then kneeled on his chest, pointed a pistol at him, and said to the others, "We should blow this man's head off." Two shots went off, but neither one hit the defendant.

The defendant testified that following the return to Area 5 headquarters that evening he was questioned until around midnight. The defendant said that he had not eaten all day. That night he slept in the interrogation room while handcuffed to a ring in the wall. The next morning he was interrogated by detectives from the Du Page County sheriff's office. The defendant said that during this time he told the detectives that he was involved in another murder, that of a woman named Lorraine Bieze. In his testimony, the defendant acknowledged that he had previously been convicted in Cook County of four counts of murder, two counts of rape, and two counts of aggravated kidnapping.

Several other witnesses also testified in the defendant's behalf at trial. Robert Certone, manager of a liquor store located in the shopping plaza from which Lori Borowski was abducted, testified that he arrived at work between 8:20 and 8:35 on the morning of Lori's disappearance, May 15, 1982. From a distance of about 300 feet, Mr. Certone saw what appeared to be a fight between a man and woman; the woman was standing next to a silver or gray car and was waving her arms. The car was parked about two doors away from the real estate office where Lori worked.

Thomas Luehring, a suburban public official, testified that he entered the shopping plaza parking lot around 8 o'clock on the same morning, May 15, 1982. As Mr. Luehring was driving into the lot, he noticed a silver or off-white car coming toward him. The other car passed within several feet of Mr. Luehring, and the driver gave the witness an angry look. Mr. Luehring later saw Edward Spreitzer on a television newscast and, at that time, identified Spreitzer as the driver of the car. The witness said that he could not tell whether Spreitzer was alone in the vehicle.

Kathleen Daye, assistant manager of a hospital credit union in Elmhurst, testified that in mid-May 1982 she heard a report of a missing young woman in Elmhurst. Later that month, around May 29, a girl accosted Mrs. Daye at a gas station and asked for a ride. Mrs. Daye told the girl that she was not going in the direction the girl mentioned. Mrs. Daye described the girl as 5 feet 4 inches to 5 feet 5 inches in height, with unkempt blond hair. She did not have a purse; she was carrying a loaf of bread in one hand and a flower in the other. Later that afternoon Mrs. Daye saw a sign in a laundromat describing a missing person, Lori Borowski; the sign also contained a photocopy of a black and white photograph of Lori. Believing that she had seen the same girl at the gas station, Mrs. Daye reported the information to the Elmhurst police department.

Also testifying as a witness in the defendant's behalf at trial was Dennis Kurzawa, a detective in the Du Page County sheriff's office. Kurzawa testified that on November 9, 1982, he went to Area 5 with Detective Wilkosz to question the defendant about a homicide, that of Lorraine Bieze. Kurzawa showed the defendant some photographs of Bieze, and the defendant said that the woman looked vaguely familiar to him. Based on the information the defendant gave the detective about the case, however, Kurzawa believed that the defendant was referring to a different homicide and that he had not been involved in the Bieze murder.

Defense counsel also presented testimony concerning the defendant's activities around the time of Linda Sutton's murder in May 1981. Nick Kokoraleis, one of the defendant's brothers, and Christina Martinez, the defendant's sister, testified that the family went to the cemetery to visit their mother's grave on the morning of Sunday, May 24, 1981, Memorial Day weekend. Linda Sutton had disappeared May 23. The family left the cemetery around 1 o'clock that afternoon. Nick Kokoraleis was unable to remember whether the defendant had spent the preceding night at the family's house, but Mrs. Martinez testified that she had seen the defendant at the house around 4 or 6 o'clock the preceding afternoon and that the defendant arrived at the house around 9 or 9:30 on Sunday morning. Mrs. Martinez said that she did not notice anything unusual about the defendant on that day.

In rebuttal, the State presented testimony contradicting the defendant's claims of mistreatment at Area 5 headquarters and during the search for bodies in Schiller Woods. Following the close of evidence, the jury returned verdicts finding the defendant guilty of the murder and aggravated kidnapping of Lori Borowski. Judgment was entered on the verdicts. A capital sentencing hearing was subsequently held, and, as we shall discuss in more detail later in this opinion, the defendant was sentenced to death for the murder of Lori Borowski. I A

The defendant raises a number of allegations of trial error. The defendant first challenges the State's introduction at trial of evidence of his participation in other crimes. The defendant contends that the evidence was inadmissible in its entirety; that even if the full range of the other-crimes evidence was not inadmissible, those portions of the evidence concerning breast mutilation should have been excluded; and, finally, that the prosecution erred in presenting evidence of a case that the trial Judge had earlier refused to admit, and in presenting additional information concerning the defendant's possible criminal activity.

The defendant first contends that the trial Judge erred in allowing the State to introduce evidence of his participation in the Sutton and Mak murders. The trial Judge initially excluded evidence of those crimes, as well as evidence of the defendant's participation in the murder of Rose Beck Davis in Chicago in September 1982. On the State's motion for reconsideration, however, the trial Judge subsequently decided to permit the State to introduce evidence concerning the Sutton and Mak murders; the Judge adhered to his previous decision to bar evidence of the Davis murder. At trial, then, the State was permitted to present evidence in its case in chief of the defendant's participation in the murder of Linda Sutton in May 1981 and in the murder of Shui Mak in May 1982. Before this court, the defendant renews his contention that evidence of the Sutton and Mak murders should not have been introduced at trial.

Evidence of other crimes committed by a defendant is not admissible as proof of the defendant's propensity to commit crime. (People v. McDonald (1975), 62 Ill. 2d 448; McCormick, Evidence § 190, at 557-58 (3d ed. 1984); M. Graham, Handbook of Illinois Evidence § 404.5, at 162-63 (4th ed. 1984).) It is well established, however, that evidence of a defendant's participation in crimes other than the one for which he is standing trial may be admitted, in an appropriate case, if the evidence is offered for a purpose other than to establish propensity to commit crime. (People v. Stewart (1984), 105 Ill. 2d 22, 61-62; People v. McKibbins (1983), 96 Ill. 2d 176, 182; People v. Lehman (1955), 5 Ill. 2d 337, 342-43.) For example, evidence of other crimes may be offered to show modus operandi, presence, identity, motive, or intent. In the present case, the jury was instructed to consider the evidence of the defendant's participation in the murders of Linda Sutton and Shui Mak as relevant to the issues of "presence, intent, design, and knowledge."

As a preliminary matter, we note that the defendant makes no challenge to the manner by which the State established his participation in the Sutton and Mak murders. The bulk of the evidence of the defendant's role in the other crimes was supplied by the defendant's own inculpatory statements about those offenses, rather than by the testimony of third-party witnesses, as is often the case. There is authority, however, that evidence of another crime may be presented through the introduction of the defendant's own confession to the offense as well as through the testimony of a third-party witness to the occurrence (see Osborne v. State (1963), 237 Ark. 5, 237 Ark. 170, 371 S.W.2d 518), and the defendant makes no claim that the manner of proof of the other offenses has any significance in this case.

Contrary to the defendant's argument, we believe that the circumstances of the Borowski, Sutton, and Mak murders demonstrated a distinct pattern, or modus operandi, and that evidence of the defendant's presence during the Sutton and Mak murders was therefore admissible as proof of the defendant's participation in the abduction and murder of Lori Borowski and his identity as one of her assailants. There were a number of distinctive factual similarities common to the Borowski, Sutton, and Mak murders. In each case the attackers used Robin Gecht's van, and in each case the victim, who was female and who was alone at the time, was taken from a public place to a secluded area, where she was beaten and stabbed. Also, in each case the victim's clothing was disturbed in a manner indicative of sexual attack, and there was no evidence of robbery. It may be noted that jewelry was found on the remains of both Lori Borowski and Shui Mak. Together, these features were sufficiently distinctive to earmark the attacks as crimes in which the defendant was involved. (See People v. Kokoraleis (1987), 154 Ill. App. 3d 519 (defendant's appeal from conviction for murder of Rose Beck Davis; rejects defendant's contention that trial court erred in permitting prosecution to introduce evidence of Sutton and Mak murders as having similar modus operandi).) There were substantial similarities among the three crimes, and these warranted admission of evidence of the defendant's participation in the Sutton and Mak murders.

Besides sharing a core of facts indicative of a common criminal agency, the evidence of the defendant's confessions to the Sutton and Mak murders also tended to support the reliability and accuracy of the defendant's confession to the Borowski murder, and to undercut his claim that his confession to the crimes charged here was the product of police coercion. The defendant's admission of his participation in the Sutton and Mak murders tended to buttress the defendant's statement that he had taken part in the murder of Lori Borowski. It will be recalled that the defendant was questioned by law enforcement officers from three different agencies: the Cook County State's Attorney's office, the Chicago police department, and the Du Page County sheriff's office. The defendant made inculpatory statements at different times to personnel from the three agencies. At trial, however, the defendant recanted all his confessions, claiming that the law enforcement officers had supplied him with facts about the Borowski, Sutton, and Mak murders and had induced or coerced him into repeating the information. In these circumstances, the ...


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