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12/21/89 the People of the State of v. John W. Lucas

December 21, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE

v.

JOHN W. LUCAS, APPELLANT



SUPREME COURT OF ILLINOIS

548 N.E.2d 1003, 132 Ill. 2d 399, 139 Ill. Dec. 447 1989.IL.2008

Appeal from the Circuit Court of Vermilion County, the Hon. James K. Robinson, Judge, presiding.

APPELLATE Judges:

JUSTICE CLARK delivered the opinion of the court. Justice Miller, Concurring in part and Dissenting in part.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE CLARK

Following a jury trial in the circuit court of Vermilion County, the defendant, John Lucas, was convicted of four counts of murder (Ill. Rev. Stat. 1985, ch. 38, par. 9-1) and of concealment of a homicidal death (Ill. Rev. Stat. 1985, ch. 38, par. 9-3.1). The State requested a hearing to consider whether the death penalty should be imposed. (Ill. Rev. Stat. 1985, ch. 38, par. 9-1(d).) The trial court, at a separate sentencing hearing, found the defendant to be eligible for the death penalty and found that there were no mitigating factors sufficient to preclude the imposition of a sentence of death. The circuit court sentenced the defendant to death and to a five-year term of imprisonment for the concealment of a homicidal death. The 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).

Defendant raises 19 issues on appeal which, for ease of review, are grouped to reflect whether the issues relate to pretrial, trial or sentencing matters, or whether they concern constitutional questions. The issues which relate to the pretrial stage question whether the trial court erred in denying the defendant's motion to suppress when: (1) the defendant did not receive adequate Miranda warnings; and (2) the police failed to scrupulously honor the defendant's request to confer with counsel. Defendant raises nine issues concerning the conduct of the trial itself. Specifically, he questions: (1) whether he was denied a fair trial by an impartial jury when the trial court denied his motion for a change of venue; (2) whether the trial court improperly dismissed two venire members for cause; (3) whether evidence of his prior conduct towards the victim was improperly admitted; (4) whether the trial court improperly admitted evidence of his DUI conviction and of prior injuries suffered by the victim; (5) whether the trial court erred by denying his motion for a mistrial; (6) whether the State presented improper testimony during its case in rebuttal; (7) whether he was denied a fair trial as a result of remarks made by the prosecutor during closing argument; (8) whether the trial court abused its discretion by allowing the jury to view autopsy photographs; and (9) whether the murder and involuntary manslaughter instructions given by the court denied the defendant a fair trial. Defendant's allegations of error at the sentencing phase concern: (1) whether the language of section 9--1(b)(7) of the Criminal Code of 1961 permits the arbitrary and capricious imposition of the death penalty; (2) whether the sentencing authority is required to make written findings of fact when imposing the death penalty pursuant to section 9--1(b)(7); (3) whether the trial court's finding that the defendant was eligible for the death penalty was supported by the evidence; (4) whether mitigating factors sufficient to preclude the imposition of the death penalty were present; and (5) whether the trial court erred in considering evidence of unadjudicated criminal conduct during the sentencing hearing. The defendant also presents various constitutional challenges to the Illinois death penalty statute, which, as we discuss below, we need not address.

While the record is extensive, we will summarize the portions relevant to our Disposition of this matter. The following evidence was adduced at trial. At the time of the incident, the defendant was living with Shelly Carrigan and their seven-month-old son, Danny. On the evening of January 28, 1986, the defendant and Shelly Carrigan took Danny with them to a party. At the party, the defendant consumed beer, corn liquor, marijuana and amphetamines. The defendant, Shelly Carrigan and Danny left the party between 1:30 and 2 a.m. on January 29, 1986.

Shelly Carrigan testified that the defendant had been "pretty well drunk" and that when they arrived home, he was so intoxicated that she had to put him to bed.

The defendant testified that he could not remember leaving the party. However, he remembered going into Danny's room sometime that night and shaking Danny in his crib. In the process, he banged Danny against the side of the crib. The defendant indicated that at the time he was aware that he was shaking Danny.

After shaking Danny, the defendant noticed that Danny had stopped breathing. In an effort to revive him, he splashed water on him and then placed him on the floor and performed cardiopulmonary resuscitation on him.

The defendant then went back to bed. The next morning, unsure whether the events of the preceding night had actually occurred, he checked on Danny and discovered that he was dead. The defendant decided to hide Danny's body in the vicinity of Grape Creek, a wooded area not far from his residence. As he was leaving, he told Shelly Carrigan, who was still in bed, that he was going to get groceries. The defendant then dressed Danny's body, drove it to Grape Creek, and hid it under a pile of wood and debris.

After leaving Grape Creek, the defendant drove to an Eisner's grocery store, and went in briefly. He then drove home and told Shelly Carrigan that Danny had been kidnapped from his car at the Eisner's. The two drove back to Eisner's and called the police.

The police arrived at the Eisner's at approximately 10:15 a.m. The defendant and Shelly Carrigan were taken to the Public Safety Building, where they were questioned about the alleged kidnapping while the defendant's car was checked for evidence of the kidnapping. The defendant was initially questioned about the kidnapping by Investigators Miller and Hartshorn at 11 a.m. Based on certain inconsistencies in the defendant's story, they began to suspect his involvement in the incident; however, they did not place him under arrest. At 1:15 p.m., the police officers advised the defendant of his Miranda rights and again proceeded to question him about the alleged kidnapping. When the defendant indicated that he would like to speak to an attorney, the officers ceased questioning and left the room.

Subsequently, the defendant's mother and brother came to the police station. The police informed them that they believed that the defendant was lying about the kidnapping and allowed them to speak to the defendant. The defendant's brother testified at trial that he and his mother were asked by the police to find out the truth regarding the child's disappearance. After talking to his mother and brother, the defendant decided that he did not need an attorney, that he would take a polygraph test, and that he would talk to the police.

While the defendant was at the Public Safety Building, the police obtained Shelly Carrigan's permission to search the house and car. The police obtained bloodstained bedding from Danny's room and took numerous photographs of the room.

The defendant was again interviewed at 7:43 p.m. on January 29, 1986, after he had submitted to a polygraph examination. After again being advised of his Miranda rights, he stated that he thought he had been involved in Danny's death and agreed to show the police where Danny's body was hidden. The defendant repeated his statements on tape at 7:53 p.m.

On January 30, 1986, at 10:23 a.m., the defendant told the police that on the evening of January 28, 1986, he had gone into Danny's room and had thrashed and banged Danny around in the crib. Once he realized that Danny was not breathing, he had attempted to revive him by performing CPR on him. He also stated that he had hidden the body at Grape Creek and later claimed that Danny had been kidnapped.

Dr. Maratos, the medical pathologist who performed an autopsy on Danny, testified that the cause of death was suffocation. He stated that Danny also suffered other injuries, the most significant of which were a fractured left arm and a ruptured liver, and that the ruptured liver would have proved fatal had Danny not been suffocated. Dr. Maratos also testified that all of the injuries had occurred prior to Danny's death and that they could have been caused by someone holding Danny by his left arm and striking him against a solid object. Dr. Maratos described numerous autopsy photographs showing various aspects of the autopsy, several of which were submitted to the jurors during deliberations.

Thomas Miller and Richard Magers, friends of the defendant, testified at trial that they had been at the party with the defendant on January 28, 1986, and had seen the defendant drink beer and moonshine. Four or five marijuana cigarettes were passed around during the evening and were shared by most of the people at the party. At one point during the evening, Shelly Carrigan left the party for approximately half an hour. During her absence, Thomas Miller cared for Danny when he cried while the defendant continued to spend most of the evening drinking and playing cards.

The State also introduced evidence regarding a September 10, 1985, incident in which Danny sustained a broken arm while in the defendant's care. The defendant contended that Danny's arm had been broken when the defendant tripped and accidentally dropped Danny. Gordon Terry, an investigator from the Department of Children and Family Services , testified that when he accused the defendant of breaking Danny's arm, the defendant laughed and stated that he could not prove it.

Shelly Carrigan testified at trial that her pregnancy caused her relationship with the defendant to deteriorate. As she paid more attention to the impending birth, she paid less attention to the defendant and, as a consequence, his drinking increased. Their relationship became so strained that she moved out prior to Danny's birth. The defendant first saw Danny several weeks after he was born, and approximately one month after Danny's birth Shelly moved back with the defendant. She also testified that when Danny's arm was broken in September 1985, the defendant told her it had happened when he tripped over a cord and dropped Danny. She further stated that some time after Danny's arm was broken in September 1985, she saw the defendant shake and twist Danny while holding him by the left arm and right leg. When she asked the defendant what he was doing, he became very hostile and stated, "You make me do things like this."

The defendant presented a defense of voluntary intoxication. David Merritt, a counselor who had treated the defendant for alcoholism, testified on his behalf. He stated that the defendant suffered from blackouts, which he described as memory loss which prevented the defendant from remembering events that occurred while he was intoxicated. He also stated that based upon interviews with the defendant and from reviewing documents generated by others who had interviewed the defendant, he believed that the defendant was an alcoholic in the severe, fatal stage of chemical dependency.

In rebuttal, the State presented the testimony of Dr. Paul Haskin, a clinical psychologist who specializes in alcohol and drug rehabilitation. Dr. Haskin testified that blackouts, or alcohol-induced amnesia, can occur in anyone who ingests alcohol very rapidly. He stated that at a certain blood-alcohol level the brain does not register what is going on; "blackout" refers to that period of time.

The jury received instructions relative to the offense of murder, the lesser included offense of involuntary manslaughter and concealment of a homicidal death. The defendant was convicted of four counts of murder and concealment of a homicidal death. As the defendant had waived sentencing by a jury prior to trial, the sentencing hearing was conducted by the trial Judge. At the first phase of the bifurcated sentencing hearing, the trial Judge found that the defendant had attained the age of 18 or more at the time of the incident, that the victim was under the age of 12 and that the death had resulted from exceptionally brutal or heinous behavior, indicative of wanton cruelty. (Ill. Rev. Stat. 1985, ch. 38, par. 9-1(b)(7).) Based on these findings, the court found the defendant to be eligible for the death penalty.

At the second phase of the sentencing hearing, the court heard evidence in aggravation and mitigation. In aggravation, the State introduced the testimony of the defendant's mother, who stated that the defendant had twice threatened her. The defendant's brother also testified that the defendant was violent when he was intoxicated, and a friend of the defendant testified that he had seen him wield a tire iron during a potential brawl. Shelly Carrigan testified that the defendant had beaten her.

In mitigation, the defendant presented extensive evidence that he was an alcoholic and a drug addict. His sister testified that he had been deeply affected by the untimely deaths of various friends and family members. Members of the sheriff's department testified that the defendant was a model prisoner.

The presentence investigation report revealed that the defendant did not have a juvenile record and that he had never been convicted of a felony. He had, however, been convicted of shoplifting, illegal transportation of alcohol, and eight traffic offenses, including one for driving under the influence of alcohol. The trial court found that there were no mitigating factors sufficient to preclude the imposition of the death penalty and sentenced the defendant to death.

PRETRIAL

Prior to trial, the defendant filed a motion to suppress certain statements and evidence, claiming that the police had violated his Miranda rights (Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602) by not advising him that he had a right to the presence of court-appointed counsel during questioning and by continuing to interrogate him after he requested an attorney.

At the hearing on the motion to suppress, it was established that at approximately 11 a.m. on January 29, 1986, the defendant was brought to the Public Safety Building to give a statement regarding the alleged kidnapping of his son. After the initial questioning the defendant chose to remain in the building, and at 1:15 p.m. he was interviewed a second time. During this second interview, the defendant was advised of his Miranda rights. The defendant initially waived his rights and agreed to answer some questions and to submit to a polygraph test. However, at some point during questioning the defendant stated "maybe I better get a lawyer" or words to that effect. The police immediately ceased questioning the defendant and exited the interrogation room, leaving the defendant behind.

Later that afternoon, the defendant's mother and brother arrived at the Public Safety Building. They were informed by the officers that the police did not believe the defendant's story about the kidnapping and were permitted to speak to the defendant. The defendant's mother and brother both urged him to waive the presence of an attorney and to take a polygraph test. After speaking to his family, the defendant informed the police that he did not desire an attorney and that he would take the polygraph test. At approximately 7 p.m. that evening, the defendant signed a consent form and took a polygraph test. At approximately 7:43 p.m., after the defendant was again advised of his Miranda rights, the defendant admitted his involvement in Danny's death and agreed to show the police where Danny's body was hidden. At approximately 7:53 p.m. he made the same statements on tape.

The defendant argues that his incriminating statements were inadmissible at trial because they were obtained in violation of Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602. He maintains that he was in custody when he was interrogated at 1:15 p.m. and that his Miranda rights had attached at that time. He claims that, in violation of Miranda, the police did not cease their interrogation once he requested to speak to an attorney but, rather, continued to interrogate him by using his mother and brother as their agents. Since his mother and brother were acting in consort with the police, the defendant claims, his subsequent waiver of his Miranda rights was invalid and all of his statements should have been suppressed.

The rules of Miranda apply to admissions made by a defendant while he is in custody "'or otherwise deprived of his freedom of action in any significant way.'" (People v. Wipfler (1977), 68 Ill. 2d 158, 168, quoting Miranda, 384 U.S. at 444, 16 L. Ed. 2d at 706, 86 S. Ct. at 1612.) In determining whether statements were made in a custodial setting, a court must consider all of the circumstances surrounding the questioning including the location, time, length, mood and mode of the interrogation, the number of police officers present, the presence or absence of family and friends of the accused, any indicia of formal arrest, any evidence of restraint, and the age, intelligence and mental makeup of the accused. (People v. Savory (1982), 105 Ill. App. 3d 1023, 1028; see also People v. Burris (1971), 49 Ill. 2d 98, 102-03.) After examining these factors, the court must make an objective determination as to "'what a reasonable man, innocent of any crime, would have thought had he been in the defendant's shoes.'" Wipfler, 68 Ill. 2d at 166, quoting Hicks v. United States (D.C. Cir. 1967), 382 F.2d 158, 161.

In the present case, the trial court found that the defendant was not in custody at 1:15 p.m. and, consequently, Miranda was inapplicable. We agree with this assessment.

The record indicates that the defendant accompanied the police to the Public Safety Building voluntarily. He was first questioned at 11 a.m. for 30 to 40 minutes regarding his son's alleged kidnapping. At 1:15 p.m. the defendant was advised of his Miranda rights and questioned a second time regarding his son's disappearance. The interview took place in one of the rooms in which all witnesses are questioned; the room was not locked, and the defendant was free to move around. The evidence does not indicate that he was treated differently than other witnesses or that he was at the Public Safety Building for anything other than general questioning regarding his son's alleged kidnapping. Although the officers testified that they had noted certain discrepancies in the defendant's account of the kidnapping, the defendant had not been arrested, booked, fingerprinted or physically restrained at 1:15 p.m. and had not been told that he had to remain in the building. In fact, when the defendant agreed to take the polygraph test at approximately 2:30 p.m., he was informed that he could wait for the examiner at the Public Safety Building or leave and return at 7 p.m. It was not until approximately 7:43 p.m., when the defendant indicated that he was responsible for his son's death, that the officers indicated that the defendant would not have been free to leave and the interrogation became custodial.

Based on these facts, we believe that a reasonable man would not have believed that he was in custody at 1:15 p.m. The fact that the defendant was advised of his Miranda rights at 1:15 p.m. does not, in and of itself, create a custodial situation (Wipfler, 68 Ill. 2d at 170-71) since it is clear that the first time he was advised of those rights the defendant was not "deprived of his freedom of action in any significant way." (See Miranda, 384 U.S. at 444, 16 L. Ed. 2d at 706, 86 S. Ct. at 1612.) Accordingly, we agree with the trial court's finding that the defendant was not in custody at 1:15 p.m.

Moreover, even if we were to assume that the interrogation at 1:15 p.m. was custodial, we do not believe that the defendant's Miranda rights were violated. According to the record, once the defendant indicated a desire to speak with counsel, the police ceased their interrogation and did not communicate with him about the case until the defendant himself initiated contact and informed them that he would waive his right to an attorney and take the polygraph test. The defendant's argument that the police reinitiated interrogation through his mother and brother is without merit. The defendant's mother and brother came to the Public Safety Building of their own accord. Both the officers and Mrs. Lucas testified that the police had not requested or suggested that they convince the defendant to speak to them without an attorney. We do not believe that the defendant's brother's statement that "[the police] wanted to know if we would go talk to him to see if we could find out what -- you know, what actually happened" establishes complicity with the police. So long as the police have not incited or coached family members to prompt a confession, the fact that the defendant chose to speak to the police after conferring with family members does not make his waiver invalid. (See People v. Whitehead (1987), 116 Ill. 2d 425, 436-40.) Accordingly, we find that the defendant's statements were freely and voluntarily given without any subterfuge or compelling influence.

The defendant also contends that his Miranda warnings were deficient because, although the officers informed him that an attorney would be appointed for him if he could not afford one, he was not told that he could have appointed counsel present prior to and during questioning.

This contention is not supported by the record. Investigator Hartshorn testified that each time the defendant was advised of his rights, he was told that an attorney would be appointed for him at no cost to him if he could not afford one. On the taped statement made at 7:53 p.m. on January 29, 1986, the defendant acknowledged that he knew he had a right to have an attorney present during questioning, and that he voluntarily waived that right. Furthermore, the fact that the defendant requested the presence of an attorney at the 1:15 p.m. interview belies his argument that he was not aware that he had the right to have counsel present during questioning. Accordingly, we find that the defendant received adequate Miranda warnings, and that his waiver of those rights was knowing and voluntary. For these reasons we hold that the trial court did not err in denying the defendant's motion to suppress.

TRIAL

The defendant next argues that the circuit court improperly denied his motion for a change of venue. Defendant contends that the fact that 19 potential jurors had to be excused because they had already formed an opinion as to the defendant's guilt or innocence illustrates that prejudicial publicity about the incident in his county was pervasive, and supports his argument that he did not receive a fair trial by an impartial jury.

The State responds that the fact that venire members with preformed opinions were detected and excused during voir dire indicates that biased members were removed from the panel and that the jurors who were selected were impartial and uninfluenced by the pretrial publicity. During voir dire, each prospective juror who was ultimately selected stated that he or she was either unfamiliar with the case, or had heard of it only generally. Each juror stated that he or she could disregard anything previously heard or read, and that he or she had not formed an opinion as to guilt. The State also points out that when the entire jury was selected, the defendant was given an additional opportunity to challenge individual jurors. He did not challenge any of the jurors for cause, nor did he exercise any of his 14 remaining peremptory challenges on the jurors of whom he now complains.

A motion for a change of venue must be granted only when "'there are reasonable grounds to believe that the prejudice alleged actually exists and that by reason of the prejudice there is a reasonable apprehension that the accused cannot receive a fair and impartial trial.'" (People v. Whitehead (1987), 116 Ill. 2d 425, 440, quoting People v. Berry (1967), 37 Ill. 2d 329, 331.) The jurors who are ultimately chosen need not be "totally ignorant of the facts and issues involved" (Irvin v. Dowd (1961), 366 U.S. 717, 722, 6 L. Ed. 2d 751, 756, 81 S. Ct. 1639, 1642); they must, however, be able to lay aside their opinions and decide the case on the evidence presented at trial (People v. Lego (1987), 116 Ill. 2d 323, 335; People v. Speck (1968), 41 Ill. 2d 177, 184, rev'd & remanded on other grounds (1971), 403 U.S. 946, 29 L. Ed. 2d 855, 91 S. Ct. 2279).

After examining the voir dire proceedings, we do not believe that the jury was biased by pretrial reports of the incident. As previously noted, voir dire revealed that none of the jurors had specific knowledge about the case or had formed opinions as to the defendant's guilt. The fact that 19 venire members were excused for cause because they had been influenced by the pretrial publicity does not affect our determination. The relevant inquiry is "not the amount of publicity in a particular case, but whether the defendant in that case received a fair and impartial trial." (Speck, 41 Ill. 2d at 183.) Considering the entire record, we conclude that, while there was some publicity attendant to the incident, the defendant received a fair trial from an impartial jury and that he was not prejudiced by the denial of his motion for a change of venue.

Defendant next contends that he was denied a fair trial when the trial court improperly excused two venire members for cause. During voir dire, the trial court inquired of venireperson H . . . whether she could follow the law as instructed, to which she replied that she could, provided it did not involve the death penalty. The trial court, over the defendant's objection, announced its intention to question venireperson H . . . to determine whether her feelings regarding the death penalty would affect her ability to objectively determine the defendant's guilt or innocence. (See Witherspoon v. Illinois (1968), 391 U.S. 510, 20 L. Ed. 2d 776, 88 S. Ct. 1770.) The court indicated that should she be chosen to serve on the jury, the court would have to Witherspoon the entire venire, including the jurors previously selected, to ensure that there were no jurors with scruples against the death penalty. Alternatively, if venireperson H . . . were excused, the court stated that it would also excuse venireperson L . . ., another member of the venire who had heard the comment. In Witherspooning venireperson H . . ., the following colloquy ensued:

"THE COURT: Is it your belief that John Lucas will automatically be sentenced to death if the jury convicts him of murder?

JUROR H . . .: No. (Shakes head back and forth.)

THE COURT: Is it your belief that John Lucas will not receive the death penalty if the jury ...


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