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02/03/94 PEOPLE STATE ILLINOIS v. JOHN CHILDRESS

February 3, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,
v.
JOHN CHILDRESS, APPELLANT.



Miller

The opinion of the court was delivered by: Miller

JUSTICE MILLER delivered the opinion of the court:

Following a jury trial in the circuit court of Cook County, the defendant, John Childress, was convicted of first degree murder, home invasion, burglary, and attempted aggravated criminal sexual assault. At a separate sentencing hearing, the same jury found the defendant eligible for the death penalty and further determined that there were no mitigating circumstances sufficient to preclude imposition of that sentence. The defendant was accordingly sentenced to death for his conviction for first degree murder. On the remaining convictions, the trial Judge imposed a 60-year term of imprisonment for home invasion, a seven-year term for burglary, and a five-year term for attempted aggravated criminal sexual assault. The prison terms were to run concurrently with each other but consecutively to the death sentence. The defendant's death sentence has been stayed pending direct review by this court. (Ill. Const. 1970, art. VI, § 4(b); 134 Ill. 2d Rules 603, 609 (a).) For the reasons that follow, we reverse the defendant's conviction for burglary and modify the sentences of imprisonment for the remaining offenses so that they run concurrently with the sentence of death. In all other respects, however, we affirm the judgment of the circuit court.

There is little dispute regarding the facts in this case, and the relevant testimony is summarized below. During the evening of August 15, 1989, the defendant entered the residence of a neighbor, Sarah Cardona, and killed her. The victim, who was 30 years old at the time of her death, lived with her son, Ruben Lopez, Jr., and Ruben's father, Ruben Lopez, Sr., in Chicago. At trial, the defendant acknowledged performing the acts that caused the victim's death but asserted that the killing occurred after the victim tried to attack him with a knife.

The victim's son testified at trial. He was six years old at the time of the offenses committed here, and was eight at the time of the defendant's trial, in April 1991. Ruben testified that on August 15, 1989, he left his home to visit a friend who lived down the street. Outside, Ruben saw the defendant, whom he knew. A short time later, Ruben returned to his apartment and spoke to his mother, who said that the defendant was there. Ruben then went back to his friend's home. Ruben returned home later. At that time, he pushed open the door of his mother's bedroom and saw the defendant stabbing his mother. According to Ruben, the defendant dropped the knife he was using and ran out the back door.

A neighbor, Marie Taylor, was walking by the victim's house when she heard Ruben screaming. At trial, Taylor testified that she ran inside the victim's apartment and went to the back bedroom. Taylor said that she pushed the bedroom door open and saw the defendant having sex with the victim; at the time, a knife was protruding from the victim's chest. Taylor spoke to the defendant, who stood up and struck Taylor. The defendant then pulled his pants up, smiled at Taylor, and left.

Taylor testified that the victim got up from the bed, removed the knife from her chest, and walked to the front room of the apartment, where she collapsed. Taylor wrapped the victim in a blanket, and police officers and paramedics soon arrived. According to Taylor, the victim stated that the defendant had raped her and had said that he would kill her before he did any time. Taylor estimated that the victim was about 5 feet 1 inch or 5 feet 2 inches tall and weighed about 90 pounds.

Another neighbor, Angel Cruz, testified that he was in front of his house during the evening of August 15, 1989, when he heard screams coming from the victim's home. Cruz ran in to the apartment, where he saw the victim and Marie Taylor. Taylor told Cruz that the assailant was still present, and Cruz then ran to the rear of the apartment and saw the defendant leaving through the back door. Cruz tried to follow the defendant, but the defendant eluded him. Cruz testified that he had seen the defendant about 20 minutes earlier in the alley, and that he saw the defendant enter the apartment through the back door. On cross-examination, Cruz denied that he saw the defendant knock on the door.

The defendant was arrested on August 16. A lineup was conducted, and prosecution witnesses Ruben Lopez, Jr., Marie Taylor, and Angel Cruz separately identified the defendant as the person they had seen in the victim's apartment.

The victim died on the morning of August 16. The surgeon who operated on the victim after she was taken to the hospital testified that the victim suffered major blood loss from a stab wound to her liver. According to the autopsy report, the victim sustained 12 stab wounds and 10 incised wounds and died as a result of those wounds. The pathologist who performed the autopsy did not find any sign of injury to the victim's genital area, but he was unable to conclude that the victim had not been sexually assaulted. Toxicological testing of the victim's blood did not reveal the presence of alcohol, cocaine, or opiates.

In the defendant's case in chief, Erica Luedke, a fire department paramedic, testified that shortly after 9 p.m. on August 15, 1989, she helped transport the victim from her home to the trauma center at Illinois Masonic Hospital. Luedke testified that, according to her report, she asked the victim if she had been sexually assaulted, and the victim said that a man had attempted to assault her and had stabbed her. The victim was in shock at the time.

The defendant introduced a stipulation that Christine Braun, a criminologist in the serology department at the Chicago police department crime laboratory, examined oral, rectal, and vaginal swabs and tested them for semen and sperm, and that all three swabs were negative.

The defendant also testified at trial. The defendant said that he kept his drug paraphernalia at the victim's house so that his girlfriend would not find the items, and that he had been doing so for six months prior to the offenses charged here. The defendant estimated that he went to the victim's apartment about that twice a month to use drugs. The defendant also said that on about five occasions he had provided the victim with drugs in exchange for sex.

The defendant testified that he had been drinking on the day of the offenses involved here. That evening, he bought some cocaine and took it to the victim's apartment. There, he knocked on the front door and asked the victim if he could use his "works," consisting of syringes and a bottle top. According to the defendant, the victim asked for cocaine, and the defendant said that he would give it to her in exchange for oral sex. When the defendant was unable to respond physically, he refused to give the victim any of the drug. According to the defendant, the victim left the room and returned with a knife. The defendant and the victim argued, and then they struggled over the knife. The defendant took the knife and stabbed the victim. According to the defendant, the victim removed the knife from her body and came toward the defendant again. The defendant took the knife from the victim and stabbed her a second time. He said that he was scared and intoxicated at the time and that he did not remember seeing anyone else in the apartment. The defendant denied having sexual intercourse with the victim, but he allowed that his memory was blank after he stabbing her. The defendant stated that he was 5 feet 7 inches tall and weighed more than 200 pounds.

In rebuttal, Chicago police officer Jerome Bogucki testified that he had searched the victim's residence for evidence following the offenses involved here. Bogucki said that he did not find any drugs or drug paraphernalia, such as hypodermic needles or bottle caps.

At the defendant's request, the jury received instructions on the provocation form of second degree murder. (See Ill. Rev. Stat. 1989, ch. 38, par. 9-2(a)(1).) In addition, the instructions defining home invasion and burglary were supplemented with one on the limited authority doctrine. (See People v. Sanders (1984), 129 Ill. App. 3d 552, 472 N.E.2d 1156; see also People v. Peeples (1993), 155 Ill. 2d 422, 487-88, 616 N.E.2d 294.) The jury returned verdicts finding the defendant guilty of first degree murder (knowing and intentional), first degree murder (felony murder), home invasion, burglary, and attempted aggravated criminal sexual assault.

On the State's motion, the matter then proceeded to a capital sentencing hearing, which was conducted before the same jury. At the first stage of the hearing, the State presented evidence of the defendant's conviction in 1978 in the circuit court of Cook County for the murder of Webster Hardwick. The State presented a certified copy of the conviction entered in that case as well as testimony from one of the police officers involved in the investigation. The State also introduced certified copies of the defendant's convictions in the case at bar. Finally, the prosecution established that the defendant was born in 1947 and therefore was over the age of 18 at the time of the murder here. The jury found the defendant eligible for the death penalty on both grounds urged by the prosecution: that the defendant had been convicted of two murders (Ill. Rev. Stat. 1989, ch. 38, par. 9-1(b)(3)) and that the defendant had committed the present murder in the course of a specified felony (Ill. Rev. Stat. 1989, ch. 38, par. 9-1(b)(6)).

At the second stage of the sentencing hearing, the State presented evidence of the defendant's prior offenses. Michael Shedelbower, a correctional counselor at the Centralia Correctional Center, testified regarding the defendant's criminal record. His testimony revealed that the defendant was convicted of armed robbery in 1965, of criminal trespass to vehicles in 1966, of burglary in 1969, of resisting arrest and disorderly conduct in 1972, of unlawful use of weapons in 1973, of murder in 1978, and of attempted aggravated criminal sexual assault, kidnapping, and unlawful restraint in 1986.

At the hearing, the State also presented testimony regarding the defendant's commission of the offenses underlying his 1965 and 1986 convictions. John Carpenter testified that on November 22, 1965, he was stopped in his car at an intersection when someone ran up, pointed a gun at him, and told him to get out. The person took what money Carpenter had in his pockets and then drove off in Carpenter's car. The vehicle was recovered the next day. In December 1965, the defendant pleaded guilty to a charge of armed robbery.

James Cole testified that on November 4, 1985, he was working at his shoeshine stand when he noticed a man and a woman entering a nearby apartment house that Cole owned. Cole knew that the man was not a tenant, so Cole went across the street to investigate. He found the man, whom he identified as the defendant, having sex with the woman. Cole said that the woman was a mentally retarded person who lived in a neighborhood halfway house. The defendant pleaded guilty in 1986 to charges of attempted aggravated criminal sexual assault, kidnapping, and unlawful restraint.

Sadie McGee, the defendant's daughter, testified in behalf of the State that when she was eight or nine years old the defendant asked to have sex with her; he did not do anything when she resisted. According to McGee, a similar incident happened on a later occasion, too.

The defendant presented a number of witnesses in mitigation at the second stage of the sentencing hearing. William Matthews was one of the defendant's cellmates at the minimum security unit at Stateville Correctional Center in 1984 and 1985. Matthews testified that the defendant helped him deal with prison life. Matthews further stated that the defendant was not affiliated with any prison gangs.

Georgia Dockery, a correctional counselor, also provided favorable testimony regarding the defendant's adjustment to prison life. She had been the defendant's counselor at the minimum security unit at Stateville. Dockery described the defendant as cooperative and said that the defendant did not have any major problems while he was there.

David Erickson, a former assistant State's Attorney, provided testimony regarding the 1977 murder of Webster Hardwick. Apart from the defendant, two women took part in the murder. Erickson had questioned a third woman who was also present during the offense, and he read aloud to the jury the statement given by the third woman. Hardwick was stabbed some 96 times and, according to the third woman's statement, almost all the victim's wounds were inflicted by the two other women.

Two of the defendant's family members, Sharella Brister and Michael Branch, provided favorable testimony. In addition, Branch read aloud a letter that had been dictated to him by the defendant's mother, who was too ill to appear in court. In the letter, the defendant's mother said that the defendant was a caring and reliable person, and she pleaded for her son's life.

Audrey Preston, who was employed as a drug treatment counselor, also testified in the defendant's behalf. Preston has known the defendant since she was a teenager. Preston stated that the defendant helped her overcome an addiction to heroin, renting hotel rooms for her when she was undergoing withdrawal. Preston testified that she ended her addiction in 1971. Preston also stated that she had not talked to the defendant for the last 10 or 12 years.

At the Conclusion of the sentencing hearing, the jury found that there were no mitigating circumstances sufficient to preclude a sentence of death. The trial Judge accordingly sentenced the defendant to death for the first degree murder conviction. On the remaining convictions, the trial Judge sentenced the defendant to a 60-year prison term for home invasion, a seven-year term for burglary, and a five-year term for attempted aggravated criminal sexual assault. The prison terms were to run concurrently with each other but consecutively to the death sentence.

I

The defendant first argues that the trial Judge erred in reopening voir dire at the close of evidence at the guilt-innocence phase and in removing one of the jurors for cause because of that person's views toward capital punishment. The defendant contends that the removal of the juror was unwarranted and that the juror should have been allowed to continue serving in this case.

Michael Watkins was selected and sworn as a juror on the first day of voir dire. He made no response when the panel in which he appeared was asked whether anyone had scruples against the death penalty. The next morning, however, Watkins sought to speak to the trial Judge. Watkins was brought into the courtroom and was sworn as a witness. Watkins told the Judge, "I think I'm going to have a problem with the outcome after the guilt or innocence is decided." Watkins stated that he did not "feel real comfortable with having to make, or playing apart [sic] in that second decision if I have to make." The trial Judge then allowed the parties to question the juror. The prosecutor asked the juror whether he would "have a problem" signing a death verdict at the Conclusion of the case. The following colloquy then ensued:

"A. I think so.

Q. Okay.

Would you be able to sign it if the evidence warrants?

A. I don't think so.

Q. Okay.

Are you telling us today that under all circumstances, any kind of death case. I mean you haven't heard any evidence, but under any kind of circumstances your [sic] saying you couldn't sign a death verdict form?

A. It would have to be extreme, extreme circumstances and I don't, you know, not knowing anything about it I couldn't say definitely but I would strongly--I would most likely go with not being able to.

Q. Okay.

Well, we re not saying it's not a heavy responsibility. But could you at least consider in the ...


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