Before this court the parties have filed supplemental briefs concerning one final issue pertaining to the trial proceedings. The defendant's theory of the case was that he was guilty, at most, of "heat of passion" voluntary manslaughter (see Ill. Rev. Stat. 1985, ch. 38, par. 9-2(a)), and, at defense counsel's request, the trial Judge instructed the jury on that form of voluntary manslaughter. The defendant now observes that instructions of the type used in the present case have since been disapproved (see People v. Reddick (1988), 123 Ill. 2d 184), and he argues that a new trial, in which the appropriate instructions would be used, is therefore necessary.
SUPREME COURT OF ILLINOIS
547 N.E.2d 1241, 132 Ill. 2d 366, 138 Ill. Dec. 620 1989.IL.1909
Appeal from the Circuit Court of Cook County, the Hon. Lawrence I. Genesen, Judge, presiding.
JUSTICE MILLER delivered the opinion of the court.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MILLER
The defendant, Terry Harris, was found guilty of murder, aggravated criminal sexual assault, and aggravated kidnapping in a jury trial in the circuit court of Cook County. The defendant waived his right to a jury for purposes of a death penalty hearing, and the trial Judge sentenced the defendant to death for the murder conviction. The trial Judge sentenced the defendant to concurrent 30-year terms of imprisonment for his convictions for aggravated criminal sexual assault and 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).
The victim in this case, 24-year-old Emma Hopkins, and the defendant were acquaintances from their employment at the same service station in Chicago. Emma was a cashier at the station, and the defendant worked there as a security guard. On the afternoon of October 28, 1984, the defendant went to the station shortly before Emma's shift was scheduled to end. As Emma was leaving work, she agreed to give the defendant a ride to a nearby street. The defendant later told authorities that he and Emma decided to go somewhere to talk. They went first to a forest preserve and then to a factory area, where, according to the defendant, they engaged in consensual sexual relations in the back seat of the car. It was the defendant's contention, both in his formal statement to the authorities and in his testimony at trial, that he strangled the victim following the discharge of a gun they were struggling over. Afterwards, the defendant dragged the victim's body from the car and hid it nearby.
The victim's body was discovered around 11 o'clock in the morning on October 29 by workers at a vegetable oil processing plant located in the 1300 block of East 99th Street in Chicago. The body had been wedged in an access area under a storage tank, or vat, on the factory premises. Police were summoned to the scene, and the officers found that the victim was clothed in a dress, a bra, a half-slip, and part of a pair of stockings.
Raphael Davidson, a co-employee of Emma and the defendant, testified at trial. Davidson said that he arrived at the service station, which was located at Division Street and Pulaski Road, around 1:30 p.m. on October 28. Emma and another person were on duty at the time, and Davidson was to relieve them at 2 o'clock. The defendant came to the station around 1:45 that afternoon. Although the defendant was dressed in his security guard uniform and had his gun with him, he said that he was not scheduled to work that day. Later, when Emma was getting ready to leave, Davidson heard the defendant ask her what direction she was going and whether he could have a ride to a certain street. Emma agreed to give the defendant a ride, and they left together in Emma's car; she was driving. Davidson testified that Emma's boyfriend called the station five or six times later that day. Davidson also said that the victim had been employed at the station for several weeks and that he had not previously seen Emma and the defendant together.
The victim's mother, Mrs. Emma Carter, testified that Emma was scheduled to work at the service station from 8 a.m. until 2 p.m. on Sunday, October 28, 1984. Emma held a second job as a security guard at a bus station, and on that Sunday she was supposed to work there from 4 p.m. until midnight. Mrs. Carter said that her daughter would come home between jobs to change into the uniform she wore as a security guard. Mrs. Carter testified that sometime during the evening of October 28 she received a telephone call from one of Emma's co-workers at the bus station informing her that Emma had failed to report for work that afternoon. Mrs. Carter then made a number of telephone calls in an effort to locate her daughter. Having no success, Mrs. Carter notified the police that her daughter could not be found, and a missing-persons report was formally entered the next morning, October 29.
Mrs. Carter and Emma lived in separate apartments in the same building in the 700 block of South California Avenue in Chicago. During the morning of October 29 Mrs. Carter listened to the tape on her daughter's telephone answering machine. Mrs. Carter found the following message recorded on the machine:
"Emma, this is Terry. I'm finished with the car. When you call me at my house and I'll -- I'll come bring it to you. Okay? Thanks for letting me use it."
Mrs. Carter testified that she did not recognize Terry as an acquaintance of her daughter. Mrs. Carter also said that Emma had a boyfriend, Tom Jenkins, and was not dating anyone else.
James Kinnebrew, a family friend, was present when Mrs. Carter played the tape on the answering machine. After hearing the tape, Kinnebrew went to the service station where Emma was employed. There, Kinnebrew spoke with station employee Raphael Davidson, who told Kinnebrew that the victim had left work the previous day with Terry, a security guard at the station. Kinnebrew learned Terry's home address through the assistance of the police, and that afternoon Kinnebrew, a nephew, Samuel Cline, and one of Emma's brothers, Renard Carter, drove to Terry's neighborhood. There, they found Emma's car parked in front of the address that Kinnebrew had been given. After a while, they saw the defendant, accompanied by a woman and a child, leave the residence. The woman put a duffle bag or laundry bag in the trunk of Emma's car, and the three drove off.
Cline and Carter followed the defendant in their own vehicle. After driving a short distance, the defendant parked Emma's car, and he and his companions entered a nearby building. Cline summoned the police. When the defendant came out of the building sometime later, he explained to an officer that he had borrowed the car from a fellow employee. The officer then searched the car and found a .38-caliber, five-shot revolver in the glove compartment; the gun contained four live rounds and one spent round. The defendant was taken into custody at that time.
Following his arrest on October 29, the defendant was questioned by Chicago police officer Patrick Mokry. The defendant initially told Officer Mokry that Emma had lent him her car the previous afternoon so that he could use it in moving to a new residence. He said that he dropped the victim off at her apartment and then drove downtown to see a movie. After the movie ended, he drove around the Loop area for a while and went home.
Officer Mokry questioned the defendant again the next day, October 30. Officer Mokry informed the defendant that the movie theater the defendant claimed to have attended had been closed for several weeks, that seminal material had been found on the victim's camisole, and that an oily substance on a floor mat in the victim's car was similar to a substance present in the area of the storage tank where the victim's body had been discovered. Confronted with those facts, the defendant said that he had strangled the victim. Mokry then notified an assistant State's Attorney of the defendant's admission.
Later the same evening the defendant gave a formal statement in the presence of Assistant State's Attorney Mark Lukanich, Officer Mokry, and a court reporter. The defendant's statement was introduced into evidence at trial. In the statement, the defendant said that he lived in Chicago in the 7900 block of South Laflin and that he was employed as a security guard by a security agency. The defendant said that he arrived at the service station by bus around 1:45 p.m. on October 28. He was not scheduled to work that day, but Emma, whom he had known for two or three weeks, had told him on the preceding Tuesday that she would be there then. As Emma was leaving work, the defendant asked her what direction she was going. She said that she was going south, and he then asked her if she would drop him off at Chicago Avenue. She agreed to do so. According to the defendant, during the drive they talked about his wife's leukemia, which a friend had told him of earlier that day, and about Emma's boyfriend. The defendant said that Emma saw that he was upset when they reached Chicago Avenue, so she continued driving. She asked him if he wanted to go somewhere to talk, and he suggested a forest preserve located in the southeast part of the city, near 134th Street and the Calumet Expressway. There, they sat in the car and talked until around 6:45 that evening, when the forest preserve closed. The defendant said that at some point he and Emma switched positions in the front seat, because he was using the car radio.
The defendant told authorities that after the forest preserve closed he and Emma drove to a factory area near Olive-Harvey College. They continued their conversation there. According to the defendant, they began kissing and later moved to the back seat of the car, where they engaged in sexual relations for two hours. Afterwards they returned to the front seat, and the defendant again sat in the driver's seat. The defendant had with him the revolver he was allowed to carry in his capacity as a security guard, and he said that as he was later placing the gun in the glove compartment of the car, Emma put her hand on the barrel and asked if she could examine the weapon. As he pulled the gun from her, it discharged, firing harmlessly into the floor of the car. The defendant said that he "lost control. I got upset by the fact that she made the gun went [ sic ] off. I grabbed her by the throat." After the gun fired, the defendant let it drop to the floor of the car. According to the defendant's statement, he squeezed on Emma's throat as hard as he could, and she went limp. The defendant said that he panicked when he realized that Emma was dead. He then pulled her body from the car and hid it in one of the nearby vats. Driving home, the defendant realized that the victim's shoes and underpants were still in the car, and he threw them out the window. The defendant said that he used Emma's car the next day to move some items, including a duffle bag filled with clothes, to a building on the north side of Chicago. The defendant also said that he left a message on Emma's answering machine so that he would not be suspected of killing her.
Following the discovery of the victim's body, an autopsy was performed on October 30, 1984, under the supervision of Dr. Edmond Donoghue, deputy chief medical examiner of Cook County. At trial, Dr. Donoghue testified that an external examination of the victim revealed 16 evidences of injuries. The victim had sustained a number of abrasions around her neck, a hemorrhage to the eyelid, a swelling on the forehead, two gravel-encrusted abrasions on the right cheek, bruises on both the upper and lower lips, and abrasions on her right leg. Dr. Donoghue testified that an internal examination revealed 10 evidences of injury to the victim. These included a number of hemorrhages of the neck muscles and organs in the neck, hemorrhages under the victim's scalp, bite marks on both margins of the tongue, hemorrhages in the perineum, and hemorrhages in the right and left walls of the pelvis.
Dr. Donoghue stated that the cause of the victim's death was manual strangulation. He explained that the abrasions on the victim's neck, as well as the internal injuries to the neck, had been caused by strangulation, and that bite marks on the tongue are commonly seen in cases of strangulation. Dr. Donoghue stated that the swelling over the victim's right eye, the bruises on her lips, and the hemorrhages under her scalp were all consistent with the infliction of blunt force trauma. Dr. Donoghue stated that the injuries to the victim's perineum and pelvis also were consistent with blunt force trauma, and he believed that the victim had been sexually assaulted. On cross-examination, Dr. Donoghue said that although the injuries to the pelvis and perineum were severe, it was possible that they could have been caused by vigorous sexual intercourse.
At trial, the State presented certain physical evidence, as well as the results of laboratory tests on some of the items of evidence. A knife in a sheath was found on the front seat of the victim's car, under the middle armrest. Emma's purse and a garment that apparently was her gas station work smock were in the trunk of the car. It was established that four latent fingerprints found on the victim's car matched the defendant's fingerprints. Tests showed that the chemical composition of a viscous substance on a floor mat in the car was consistent with the composition of a similar substance found where the victim's body had been hidden. In addition, tests of the carpet covering a hole in the car's front floorboard near the transmission hump revealed a small residue of burnt gunpowder, and a perforation in the carpet was said to be consistent with the size and shape of a bullet. Finally, tests of vaginal, oral, and rectal swabs made during the victim's autopsy revealed that seminal material was present on the vaginal swab. Also, seminal material was found on Emma's camisole, which had been discovered under the back seat of her car.
The defendant testified in his own behalf at trial, and he was the only witness called by defense counsel. The defendant's testimony was virtually identical with the formal statement previously introduced into evidence by the prosecution. The defendant testified that his initial statement to Officer Mokry, in which he mentioned going to the movie theatre, was a lie, and that everything in the formal statement was true. The defendant said that at the time of the homicide he had been separated from his wife for four or five months. He had known the victim for about two weeks, and he said that one time he had taken ...