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10/25/89 the People of the State of v. Drew Terrell

October 25, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE

v.

DREW TERRELL, APPELLANT



SUPREME COURT OF ILLINOIS

547 N.E.2d 145, 132 Ill. 2d 178, 138 Ill. Dec. 176 1989.IL.1676

Appeal from the Circuit Court of Cook County, the Hon. Fred Suria, Jr., Judge, presiding.

APPELLATE Judges:

JUSTICE WARD delivered the opinion of the court. JUSTICE MILLER, Concurring in part and Dissenting in part. JUSTICE STAMOS joins in this partial concurrence and partial Dissent. JUSTICE RYAN, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WARD

The defendant, Drew Terrell, was charged by indictment with the murder and aggravated criminal sexual assault of 15-month-old Laura Hampton. Following a bench trial, the defendant was convicted of both crimes and the defendant's motion for a new trial was denied. The State then requested a death penalty hearing and the defendant elected to be sentenced by the court and not by a jury. At the sentencing hearing, the court found that the defendant was 18 years of age or older at the time of the offenses and that two of the aggravating factors set forth in section 9-1(b) of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 9-1(b)) were present. After hearing evidence in mitigation, the trial court concluded that there were no mitigating factors sufficient to preclude the imposition of death and sentenced the defendant to death. The death sentence has been stayed (107 Ill. 2d R. 609(a)) pending direct appeal to this court (Ill. Const. 1970, art. VI, § 4(b); 107 Ill. 2d R. 603).

The issues for our review are: (1) whether the trial court erred in denying the defendant's motion to suppress his confession; (2) whether there was sufficient evidence to establish that the defendant had the requisite mental state to sustain a murder conviction; (3) whether the criminal sexual assault and aggravated criminal sexual assault statutes are constitutional; (4) whether the trial court's consideration of a victim impact statement requires a new sentencing hearing; (5) whether other alleged errors in sentencing require reversal of the defendant's death sentence; and (6) whether the trial court erred in ordering the defendant's death sentence and his 60-year extended sentence for aggravated criminal sexual assault to run consecutively. The defendant also asks that we reconsider prior decisions holding our death penalty statute constitutional.

At trial, the mother of the victim, Markeeter Hampton, testified that in August of 1985, she and her 15-month-old daughter, Laura Hampton, lived in an apartment with the defendant and the defendant's mother, Elizabeth Terrell. On the morning of August 27, 1985, Ms. Hampton went to work, leaving Laura with the defendant's mother, who was to baby-sit that day. Ms. Hampton testified that later that morning the defendant telephoned her and told her that Laura had pulled a stereo down on herself and was at St. Anthony's Hospital in a coma. She testified that Laura was subsequently transferred to Cook County Hospital, where she died that afternoon.

Officer John Grantz and Detective James Clemmons of the Chicago police department testified that they were called to investigate a possible child abuse case at St. Anthony's Hospital on August 27, 1985. Both officers testified that, when questioned in the hospital emergency room, the defendant stated that he was alone with the victim and believed that her injuries were caused by a stereo falling on her. Detective Clemmons testified that he spoke with a physician at the hospital concerning the victim's injuries, and was told the laceration which extended from Laura's vagina to her anus was not consistent with the defendant's story about the stereo equipment. Detective Clemmons testified that he observed bruises on the victim's face, head, back and stomach, and saw blood running from her vagina when the doctor opened her diaper. After learning that the injuries were inconsistent with the defendant's explanation, Detective Clemmons took the defendant to the police station for questioning.

Detective Ginko testified at the trial that he and Detective Lahm questioned the defendant at 3 p.m. for 10 minutes. Ginko testified that, after waiving his Miranda rights, the defendant stated that he was alone with the victim in the apartment when he heard a noise that sounded like something falling. The defendant said that he walked from the bathroom into the bedroom and discovered Laura lying on her back, with a bruise on her face, and stereo components on her leg and above her head. The defendant also told the officers that his mother, Elizabeth Terrell, came home shortly thereafter and took the baby to the hospital.

Assistant State's Attorney James Sullivan testified that he interviewed the defendant at 6:45 p.m. for 25 minutes, in the presence of Detectives McManamon and Nuccio. Sullivan said the defendant gave an oral statement during this interview. A court reporter was then summoned and the defendant gave a statement in the court reporter's presence. After the statement was reduced to writing, the defendant read and signed the statement. The trial court admitted this transcribed statement into evidence.

Prior to giving the statement, the defendant was advised of his Miranda rights, said that he understood those rights and agreed to discuss the victim's injuries and death. The defendant stated that he was left alone with Laura Hampton at approximately 10 a.m. on August 27, 1985, when his mother went to the currency exchange to cash a check. He stated that he carried Laura into the bedroom and laid her on the bed next to him. When the baby woke up and began to cry, the defendant struck her on the back with his open hand. Laura continued to cry, so the defendant changed her diaper. Laura continued to cry after her diaper was changed, so the defendant struck her again with an open hand on the side of the face. The defendant then picked her up and laid her on her back across a pillow. When she continued to cry, he hit her four or five times in the stomach with a closed fist. The defendant then noticed that Laura had had a bowel movement, so he cleaned her and put on a new diaper, but did not fasten it. The defendant stated that he inserted a Q-tip and then his finger into the baby's vagina and started "handling her." The defendant admitted that it was difficult to put his finger in "there." The defendant stated that he inserted his finger a couple of inches, "up to the bone" and stated that he was "looking for a pain response." The defendant stated that the baby "hollered for a few minutes, then stopped hollering." Defendant said that he continued this for about "a minute or two" until he heard his mother knock at the door. When his mother entered the apartment, the defendant told her that the baby had accidentally pulled the stereo onto herself. He told the assistant State's Attorney that he had put the stereo on the floor when he first saw the bruises on the baby's face, before he put his finger in the baby's vagina. In concluding the statement, the defendant stated that he had been treated well by the police and the assistant State's Attorney and that he had not been threatened.

Dr. Robert Stein, the medical examiner of Cook County and a forensic pathologist, described the nature and extent of the victim's injuries at trial. He testified that his post-mortem examination revealed blood in the victim's peritoneal and pleural cavities, collapsed lungs, contusions of the heart, lacerations of the liver and a tearing of the mesentery. His examination also revealed blood on the kidneys and pelvis as well as lacerations of the vagina and rectum. He testified that the victim's injuries were recent and produced before death. He concluded that the victim's death had been a homicide. He also testified that the lacerations to the victim's genital area were consistent with a finger or Q-tip being inserted into the vagina.

At the trial, the defendant testified that he was left alone with Laura at approximately 9:30 a.m. on August 27, 1985, when his mother went to the currency exchange. He stated that he took the baby to the hospital at approximately 11 a.m. and told the police that it appeared as though a stereo had fallen on the victim. On cross-examination, the defendant denied that he watched Laura while his mother went to the currency exchange. He testified that he "stepped out" for approximately 40 minutes while his mother was gone and left Laura alone in the apartment. He stated that he spoke to "associates" while he was gone, but could not remember any of their names. The defendant stated that when he returned to the apartment, it appeared as though a stereo had fallen on Laura. Later, he said that he heard the stereo fall after returning to the apartment. Although the defendant on cross-examination denied portions of his written statement, he conceded that the words in the statement were his own and that he was not told what to say or physically beaten by police. He claimed, however, that he gave a statement to the assistant State's Attorney because a police officer had confronted him and asked him whether he knew what happened to people who did not cooperate with police. On redirect examination the defendant testified that the statements he made to police at the hospital were true.

After hearing the evidence and closing arguments, the trial court found the defendant guilty of murder and aggravated criminal sexual assault. The State then requested a death penalty hearing, and the defendant waived his right to be sentenced by a jury. Based on evidence introduced at the eligibility phase of the proceedings, the trial court found the defendant to be 18 years old at the time of the crimes and that two of the aggravating factors set forth in section 9-1(b) of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 9-1(b)) were present: (1) the defendant had been convicted of murdering a victim under 12 years of age and the death resulted from exceptionally brutal and heinous behavior indicative of wanton cruelty (Ill. Rev. Stat. 1985, ch. 38, par. 9-1(b)(7)), and (2) the defendant murdered the victim in the course of another felony, that of aggravated criminal sexual assault (Ill. Rev. Stat. 1985, ch. 38, par. 9-1(b)(6)). Based on these findings, the court found the defendant eligible for the death penalty and then heard evidence in aggravation and mitigation.

In aggravation, the State introduced the testimony of Dr. Demetra Soter, who treated the victim at Cook County Hospital on August 27, 1985. Dr. Soter described the lacerations to Laura's vagina, rectum, liver and mesentery. She testified that there had been severe and repeated trauma to the victim's vagina and rectum and that a tremendous force was necessary to cause the tears that she observed of the victim's liver, vagina and rectum. She testified that she doubted whether she would have been physically able to exert the force to cause the injuries she observed.

Markeeter Hampton testified at the sentencing hearing regarding the emotional pain she and her family suffered because of Laura's death, and her victim impact statement was admitted into evidence without objection by defense counsel. The State also introduced certified copies of two separate robbery convictions of defendant and the testimony of two police officers who investigated those robberies. Finally, Detective McManamon testified that he determined, after consulting hospital personnel, that the defendant's mother had brought Laura to the hospital.

In mitigation, the defendant's father, stepmother and cousin testified that the defendant's problems were attributable to his mother's bad influence. The defendant then told the court that he did not murder Laura Hampton, that he loved children, and asked the court for mercy. The trial court concluded that there were no mitigating factors sufficient to preclude the imposition of death and sentenced the defendant to death. The court also sentenced the defendant to an extended term of 60 years' imprisonment for aggravated criminal sexual assault, to run consecutively with the defendant's death sentence. The defendant's death sentence was stayed (107 Ill. 2d R. 609(a)) pending direct appeal to this court (Ill. Const. 1970, art. VI, § 4(b); 107 Ill. 2d R. 603). I

The defendant raises a number of issues relating to his conviction in this appeal. He first argues that his conviction should be reversed and a new trial ordered because the trial court erred in failing to suppress inculpatory statements he made at the police station following his arrest. Prior to trial, the defendant filed a written motion to suppress his confession. Following an extended hearing, the trial Judge denied the motion, finding that the defendant had given the statements voluntarily.

At the hearing on the motion to suppress, the defendant testified that on August 27, 1985, at approximately 11 a.m., he was at the hospital where Laura Hampton was receiving treatment for her injuries. He testified that an officer asked him to go to the police station for questioning. The officer then escorted him to the station and placed him in an interview room. He testified that 45 minutes later, the officer returned to the interview room and questioned him for five minutes. The officer then left, but returned a short time later with another officer. He testified that the officers questioned him for 30 minutes and then left.

The defendant testified that two different officers interviewed him at approximately 4:30 p.m. He claimed that these officers asked him some questions and then left. The defendant testified that, shortly thereafter, one of the officers returned and advised him of his Miranda rights. The defendant testified that the officer escorted him to and from the bathroom and then left again for an hour and a half. He testified that during this time period several officers came into the interview room and asked him if he wanted water, cigarettes or to use the bathroom. The defendant testified that the two officers who had questioned him at 4:30 p.m. returned to the interview room at approximately 7:30 p.m. He testified that one of the officers, Detective McManamon, began making accusations and grabbed him by the collar, pushed him in the chest, and demanded more information.

On cross-examination, the defendant testified that he had smoked a marijuana cigarette laced with PCP at 1 a.m. on August 27, 1985, and another one hour before he was taken into custody and that he was under the influence of drugs at the time he confessed. He also testified that he was not told that his family was present at the police station, and that when he asked the assistant State's Attorney "where's my lawyer," he did not receive an answer. On redirect examination, the defendant testified that he repeatedly asked the police and assistant State's Attorney if he could use the telephone to call his family, but his requests were denied. The defendant admitted that he told the assistant State's Attorney that he had been treated well by the police, but stated that he was lying at that time.

Witnesses for the State testified that the defendant was questioned on three separate occasions after he arrived at the station. Detective Lahm testified that he and his partner, Detective Ginko, interviewed the defendant at 3 p.m. Lahm testified that he advised the defendant of his Miranda rights. The defendant then waived those rights and agreed to talk to the detectives. Lahm testified that he and Ginko then questioned the defendant for approximately 10 minutes. Lahm testified that he did not threaten, harass or physically harm the defendant. Although Lahm testified that he could not tell whether the defendant was under the influence of marijuana laced with PCP, he stated that the defendant appeared normal during their conversation.

Detective McManamon testified that he and his partner, Detective Nuccio, questioned the defendant at 5 p.m. McManamon testified that he read the defendant his Miranda rights before questioning him. He testified that the defendant stated that he understood those rights, and wished to waive them. The detectives then questioned the defendant for approximately 40 minutes. McManamon testified that the defendant was not handcuffed at the time he was questioned and that the defendant appeared sober, stable and normal during this conversation. McManamon also testified that he did not threaten, harass, or abuse the defendant. He also stated that he did not grab the defendant by the collar or punch him in the chest. McManamon testified that after he and his partner interviewed the defendant, the Felony Review Unit of the State's Attorney's office was contacted.

Assistant State's Attorney James Sullivan testified at the hearing that he spoke with the defendant at 6:45 p.m., in the presence of Detectives McManamon and Nuccio. Sullivan testified that he advised the defendant of his Miranda rights, and explained that he was an attorney who worked with the police and was not the defendant's attorney. After the defendant indicated that he understood his rights and wished to waive them, he gave an oral statement to Sullivan. Sullivan testified that the defendant appeared sober and coherent, was not handcuffed, and had no cuts or bruises. Sullivan denied that he threatened or harassed the defendant. Sullivan testified that, before he left the interview room, he asked the defendant if he had been given anything to eat or drink and the defendant replied that he had been given coffee and cigarettes. At approximately 8:15 p.m., Sullivan reentered the interview room, informed the defendant that a court reporter was on her way, and asked him if there was anything he needed. Sullivan testified that the defendant replied that he did not need anything to eat or drink and that he had been well treated.

At 8:50 p.m., a court reporter transcribed the defendant's statement in the presence of Sullivan, Nuccio and McManamon. McManamon testified that, while the statement was being typed, he was informed that members of the defendant's family were at the police station and wanted to bring the defendant something to eat. McManamon told the family that they could bring the defendant food. McManamon testified that prior to that time, the defendant had not asked for anything to eat, but had been given something to drink and the opportunity to use the bathroom. After the statement was reduced to writing, the defendant read, signed and initialed each page of the statement. The defendant's family brought him food shortly after he signed the statement.

Several members of the defendant's family testified at the suppression hearing that they went to the police station on the evening of August 27, but were told by police officers that they could not see the defendant. One witness, Irene Lewis, testified that, when one of the police officers opened the door of the interview room where the defendant was being held, she put her foot in the opening and told the defendant, "God love you, we will pray for you, keep your chin up." The defendant's aunt testified that she briefly saw the defendant walking to the bathroom and that he looked tired but not injured. The defendant's stepmother testified that she told a police officer that the defendant should not be questioned without an attorney, but was told that he did not need an attorney. The defendant's stepmother also testified that she was allowed to bring the defendant food, and that the defendant's mother was allowed to see the defendant after he signed the written statement.

At the Conclusion of the suppression hearing, the trial court found that the defendant had knowingly and voluntarily waived his Miranda rights. The court concluded that the defendant had not asked for a lawyer, and that the defendant's family members could not invoke his personal right to an attorney. The court also stated it had considered the defendant's allegations that he had been threatened, but concluded, after considering the totality of the circumstances, that the defendant had freely and voluntarily given the inculpatory statement to the police. Accordingly, the trial court denied the defendant's motion to suppress.

The defendant raises two arguments in this appeal to support his contention that his confession should have been suppressed.

A

First, he claims that his statements were involuntary and admitted into evidence in violation of his rights under the fourteenth amendment of the United States Constitution. He maintains that his statements were involuntary because the police held him incommunicado at the police station for approximately nine hours, denied his requests to use the telephone, and refused to allow his family to see him. (Haynes v. Washington (1963), 373 U.S. 503, 10 L. Ed. 2d 513, 83 S. Ct. 1336.) Second, the defendant claims that his statement should have been suppressed because the police and the assistant State's Attorney violated his statutory rights by repeatedly denying his requests to use the telephone in violation of section 103-3 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1985, ch. 38, par. 103-3). That section provides that arrested persons shall have a right to communicate with an attorney or family member by making telephone calls, or in any reasonable manner, within a reasonable time after arrival at the first place of custody.

The State responds that the defendant has waived both the constitutional issue and the statutory issue by failing to raise them in his post-trial motion. This court has recently affirmed that both an objection at trial and a specific objection in a written post-trial motion are necessary to preserve an issue for review. (People v. Enoch (1988), 122 Ill. 2d 176, 187; People v. Johnson (1987), 119 Ill. 2d 119.) Here, the defendant's post-trial motion states only that the "defendant was denied due process of law." The motion does not allege that the trial court erred in failing to suppress the defendant's confession, nor does it specify that his confession was involuntary or obtained in violation of his statutory rights. The post-trial motion does include a statement that it is "expressly understood that defense counsel has not yet been furnished with an official transcript of the trial and makes this motion on behalf of his client, without prejudice to or waiving the later discovery of error in the trial record." This apparent attempt to preserve any and all errors on appeal is ineffective, especially when, as here, defense counsel would have known of the claimed errors without the benefit of a transcript. (People v. Camp (1984), 128 Ill. App. 3d 223, 233.) The defense counsel certainly knew that the trial court denied the defendant's motion to suppress, and could have raised the statutory issue and cited at least some of the circumstances that allegedly rendered the confession involuntary in the post-trial motion without need to refer to a transcript of testimony.

The plain error rule of course permits a court on direct appeal to take notice of plain errors and defects affecting substantial rights which were not brought to the attention of the trial court. (107 Ill. 2d R. 615(a); People v. Gacho (1988), 122 Ill. 2d 221, 239.) We will not review the defendant's statutory claim under the plain error rule, because the alleged error is not one that could have deprived the accused of a fair trial. The defendant's allegation that his confession was involuntary and obtained in violation of the due process clause, on the other hand, is a matter cognizable on appeal notwithstanding the lack of any contemporaneous objection.

In determining whether a statement has been voluntarily given, this court looks at the totality of the circumstances. (People v. Martin (1984), 102 Ill. 2d 412.) Factors to consider when making a determination of voluntariness include the age, education and intelligence of the accused, the length of the detention and the duration of questioning, whether the accused was advised of his constitutional rights, and whether the accused was subjected to any physical mistreatment. (People v. Martin (1984), 102 Ill. 2d 412.) The test for voluntariness is not to determine whether the accused wanted to confess or would have confessed in the absence of interrogation. (See Stein v. New York (1953), 346 U.S. 156, 182, 97 L. Ed. 1522, 1541, 73 S. Ct. 1077, 1091.) Criminals typically do not confess to the police purely of their own accord, without any questioning. Rather, the issue typically is whether the defendant's will was overborne at the time he confessed. See People v. Kincaid (1981), 87 Ill. 2d 107, 119.

As we stated, the trial court concluded, after hearing the evidence presented at the suppression hearing, that the defendant's statements were not involuntary and denied the defendant's motion to suppress. A trial court's determination that a confession is voluntary will not be reversed unless it is contrary to the manifest weight of the evidence. (People v. King (1986), 109 Ill. 2d 514.) We conclude that the trial court's Conclusion that the defendant's confession was voluntary was not against the weight of the evidence.

The evidence presented at the suppression hearing showed that the defendant was 18 years old, literate, and at the time had completed three years of high school. He had had previous experience with the criminal Justice system and, thus, was aware of the consequences of confessing. Although the defendant claimed that he was under the influence of drugs at the time he confessed, all of the State's witnesses testified that the defendant appeared normal and sober during interrogation.

The defendant was repeatedly advised of his Miranda rights, stated that he understood those rights, and proceeded to give an oral statement without requesting an attorney or indicating that he wished to remain silent. The record supports the Conclusion that he understood his constitutional rights and the questions he was asked, as well as his own written statement.

Although the defendant was in custody for eight hours before he confessed, the periods of questioning to which he was subjected were not prolonged and were interspersed with significant rest periods. In view of the nature of the crime and the investigation the police were conducting, the period of detention was not unreasonable. (People v. Taylor (1974), 58 Ill. 2d 69.) The situation here is distinguishable from ones of lengthy interrogations during incommunicado detention that have been held to result in involuntary confessions. See, e.g., Davis v. North Carolina (1966), 384 U.S. 737, 16 L. Ed. 2d 895, 86 S. Ct. 1761 (defendant held for 16 days of incommunicado detention in closed cell, with no windows, limited food, and coercive tactics); Culombe v. Connecticut (1961), 367 U.S. 568, 6 L. Ed. 2d 1037, 81 S. Ct. 1860 (defendant held for five days of repeated questioning during which police employed coercive tactics).

The defendant testified that he made the inculpatory statements because a police officer threatened and coerced him. There was no evidence to support this claim. The officer whom the defendant implicated specifically denied that he harassed, threatened or physically abused the defendant. The defendant also claimed that he made the inculpatory statements because he was not allowed to see family members. The defendant admitted at the suppression hearing, however, that he did not ask to see his family, and the trial court specifically found that the defendant made inculpatory statements to the police before his family members came to the police station.

The defendant argues that witnesses for the State never rebutted his testimony that the police and assistant State's Attorney refused to allow him to use the telephone. As the State points out, however, the defendant's motion to suppress did not claim that the defendant asked to use the telephone or that his requests were denied. In fact, the defendant did not raise this question until the end of the suppression hearing, after all of the witnesses for the State had testified.

The facts in Haynes v. Washington (1963), 373 U.S. 503, 10 L. Ed. 2d 513, 83 S. Ct. 1336, upon which the defendant relies, are distinguishable. Haynes, like the defendant in this case, claimed that the police told him that he could not use the telephone. Haynes' claim, however, was corroborated by other evidence. For example, the police officers who questioned Haynes admitted at trial that Haynes asked to use the telephone while he was being interrogated. In addition, the transcribed confession which the State introduced at trial disclosed that the defendant repeatedly asked if he could call his wife, and that the police told him that he could call his wife only when he gave a statement and cooperated with them. Here, in contrast, there was no evidence to support the defendant's claim that he was denied access to the telephone.

Even if we assume that the trial Judge believed the defendant's uncorroborated testimony that the police and assistant State's Attorney ignored his requests to use the telephone, that would not invalidate the confession as a matter of law. The evidence in this case, unlike that in Haynes, does not support the inference that the defendant's will was overborne. In Haynes, the evidence established that the defendant was held incommunicado for 16 hours before he confessed and that the police continued the incommunicado detention for another five days while persisting in efforts to obtain his signature on another confession. Here, in contrast, the defendant was in custody for, at most, eight hours when he made inculpatory statements. The defendant, unlike Haynes, was advised of his right to remain silent, warned that his answers might be used against him, and told of his right to consult an attorney. On the record before us, we find no indication that the defendant's will was overborne and that any ...


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