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03/24/94 PEOPLE STATE ILLINOIS v. RONALD KITCHEN

March 24, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,
v.
RONALD KITCHEN, APPELLANT.



Bilandic, Harrison

The opinion of the court was delivered by: Bilandic

JUSTICE BILANDIC delivered the opinion of the court:

Following a jury trial in the circuit court of Cook County, defendant, Ronald Kitchen, was convicted of five counts of murder. (Ill. Rev. Stat. 1985, ch. 38, par. 9-1(a)(1).) After finding defendant eligible for the death penalty based on the statutory aggravating factor of murder of two or more individuals (Ill. Rev. Stat. 1985, ch. 38, par. 9-1(b)(3)), the same jury found insufficient mitigating factors to preclude imposition of the death sentence. Accordingly, the trial court sentenced defendant to death. Defendant's execution has been stayed (134 Ill. 2d R. 609(a)) pending direct appeal to this court (Ill. Const. 1970, art. VI, § 4(b); 134 Ill. 2d R. 603).

Codefendant Marvin Reeves was tried separately from defendant, and was also found guilty of five counts of murder (Ill. Rev. Stat. 1985, ch. 38, par. 9-1(a)(1)) and five counts of aggravated arson. Ill. Rev. Stat. 1985, ch. 38, par. 20-1.1(a)(2).) Codefendant Reeves was sentenced to natural life imprisonment. The present appeal involves only defendant's convictions and sentence.

BACKGROUND FACTS

The evidence adduced at trial showed that during the early morning hours of July 27, 1988, the bodies of 26-year-old Deborah Sepulveda, her son Peter Jr., age three, and daughter Rebecca, age two; together with 30-year-old Rose Marie Rodriguez, and her son Daniel, age three, were recovered following a fire in the Sepulveda residence located at 6028 South Campbell Street in Chicago. The bodies of Deborah Sepulveda and her two children were found in the front bedroom of the home. Deborah's naked body was found face down on the floor, and the bodies of Peter Jr. and Rebecca were found lying together holding hands on the bed. The bodies of Rose Marie and Daniel Rodriguez were found lying on the bed in the rear bedroom. All five bodies were severely charred. There were no eyewitnesses to the murders.

The Chicago fire department responded to the call of a fire at 6028 South Campbell and extinguished the fire. Detective McInerney of the bomb and arson unit found a number of areas as origins of the fire: the front and rear bedroom mattresses, the top of the basement stairs, and a wall in the dining room. McInerney determined that the fires had been intentionally set using available materials and hand-ignited with an available flame, and had been smoldering and burning slowly for approximately three hours before they were extinguished.

Dr. Robert Stein, chief medical examiner for Cook County, performed the autopsies of the victims. Dr. Stein opined that Rose Marie died of manual strangulation based upon hemorrhage areas in the internal neck muscles, as well as a number of external abrasions and contusions to her neck. The cause of death of the other four victims was asphyxia due to suffocation. The absence of carbon monoxide in the victims' blood and lack of soot in the trachea revealed that all the victims were dead before their bodies were set on fire.

Detective Craig Cegielski of the Chicago police department investigated the premises immediately following the fire. In the basement, Cegielski found numerous small manila envelopes, approximately 1 by 1 1/2 inches, lying on a workbench. A large box containing the same type of envelopes was found next to the workbench. Cegielski testified that based upon his extensive experience, these types of envelopes are commonly used to package narcotics.

On August 8, 1988, Chicago Police Officer Frank Balzano of the canine unit performed a narcotics search in the Sepulveda's home. The search dog indicated the presence or odor of narcotics in the rear bedroom and on a workbench located in the basement of the house. Balzano also saw the box of small manila envelopes near the workbench; however, the envelopes were not inventoried by the police department or admitted into evidence. Search of the premises did not reveal any controlled substances.

Defendant and codefendant Marvin Reeves were implicated as the perpetrators of the multiple murders by Willie Williams, a long-time friend of both defendant and codefendant Reeves. Williams was an inmate at the Vandalia penitentiary. On August 1, 1988, Williams stated that he called defendant collect *fn1 from the prison. In that conversation, defendant told Williams that he and codefendant Reeves went "over to 60th and Campbell and killed Debbie and Mary because they owed them some money." Defendant told Williams that he smothered the children to death because he did not want to leave any witnesses to the murders. Defendant told Williams that he had set the fires that burned the victims' bodies to cover up the murders.

On August 5, 1988, Williams telephoned Detective John Smith of the Chicago police department and informed him of the substance of his conversation with defendant. Later that same day, Williams again spoke with defendant. During that conversation, defendant told Williams that he had killed "Debbie" and "Mary" and the kids, and that, if he had to, he would do it again. Defendant told Williams that he and codefendant Reeves had strangled "Mary" to death, but suffocated "Debbie" and the three children with a pillow. The women owed them $1,225 for drugs. Codefendant Reeves went into the trunk of the car and got some alcohol, anddefendant set the bodies on fire to cover up the details of the murders.

According to Williams, defendant and codefendant Reeves worked for a major drug supplier located on the south side of Chicago by delivering cocaine and collecting money. It was Williams' testimony that Rose Marie and Deborah purchased drugs on a regular basis from defendant and codefendant Reeves. Williams positively identified photographs of Rose Marie and Deborah as the women to whom cocaine was sold on numerous occasions. During the early months of 1988, Williams drove "codefendant Reeves and defendant to the Sepulveda home at 6028 Campbell on approximately five different occasions to deliver cocaine and collect money.

On August 25, 1988, defendant was brought into the police station for questioning. Defendant made an oral statement to the detectives implicating himself and codefendant Reeves in the multiple murders. Defendant later agreed to give a handwritten statement to the assistant State's Attorney. In the statement, defendant indicated that codefendant Reeves picked him up in front of his home around 11 p.m. on July 26, 1988, in a 1977 yellow Buick Regal, and asked whether he wanted to go for a ride to see a woman who owed him some money. Defendant agreed, and drove to the Sepulveda residence. Codefendant Reeves told defendant to wait, and walked up the stairs and knocked on the front door. Codefendant Reeves entered the house alone. The living room windows were open, and defendant heard a conversation between codefendant Reeves and a woman. After approximately five minutes, the conversation turned into an heated argument. Codefendant Reeves and the woman exchanged profanities.

At that time, defendant got out of the car and walked up to the porch and knocked on the front door. Defendant entered the home, and saw codefendant Reeves go to the back bedroom and close the door behind him. Defendant heard punching and slapping noises, followed by the sound of a woman screaming and, finally, gasping for breath. Codefendant Reeves left the rear bedroom and told defendant that he wanted to leave. Both men walked out through the front door to the car.

Defendant saw codefendant Reeves take a plastic quart bottle out of the trunk and walk back into the house. Defendant noticed that all of the living room windows and the front door were now closed. Codefendant Reeves returned to the car and placed the bottle back into the trunk. As they drove off, codefendant Reeves laughed and told defendant that he thought he had "killed the bitch." Codefendant Reeves took defendant to buy a sandwich, and then drove him home. At the Conclusion of the statement, defendant indicated that he had been treated well by both the police and the assistant State's Attorney. Defendant also indicated that he had given the statement voluntarily, and that no threats or promises had been made to him.

Chicago Police Officer Thomas Ptak testified that he searched the trunk of the 1977 Buick Regal belonging to codefendant Reeves. In the trunk of Reeve's car, Ptak found a plastic container containing a small amount of charcoal fluid, and an empty canister of gasoline hidden beneath a blanket. The parties stipulated that the gasoline can contained a residue of gasoline, and that the plastic container held flammable lighter fluid. It was also stipulated that no suitable fingerprints for comparison purposes could be found from either of these articles.

Around 6 p.m. on the evening of the murder, Victor Guajardo, Jr., who lived in the home next to the Sepulveda residence, saw a yellow, rusted, two-door, older model car parked in front of the Sepulveda home. Guajardo positively identified the car parked in front of the Sepulveda residence as the one driven by codefendant Reeves.

Karen Williams, keeper of the company records for Illinois Bell, testified in defendant's case in chief. Based upon company telephone records, there were only two collect telephone calls made to the defendant's residence. Those calls were made on August 1, 1988, from Joliet, Illinois. However, Williams explained that if a calling party billed their call to a third-party billing number, the calling party's telephone number would not appear on the receiving party's telephone records.

Leslie Jenkins, defendant's sister, offered alibi testimony in defendant's behalf. Jenkins testified that on the night of the murders, defendant was at a "splash" party at the home of Irene Morrison located at 825 West 50th Place in Chicago. Although Jenkins was aware that her brother had been arrested on August 25, 1988, she did not tell anyone that he was with her on the night of the murders until two weeks prior to trial. Defendant also testified on his own behalf. Similar to Jenkins, defendant stated that on the evening of July 26, 1988, he attended a pool party with his son at Morrison's home. Defendant spent the night at the party, and did not return home until 9 a.m. the following day.

The State presented the testimony of several police officers in rebuttal. Detective Kill testified that on August 25, 1988, Eric Wilson, defendant's cousin, arrived at the police station. It was Kill's testimony that on August 1, 1988, codefendant Reeves told Wilson that he and defendant "had killed some people who lived on the other side of Western because they owed them some money." Wilson also told the detective that on August 16, 1988, he had a conversation with defendant on the front porch of his uncle's home. At one point, codefendant Reeves walked up and interrupted their conversation by saying: "I hope Willie [Williams] doesn't say anything. He is the only one that can get me in trouble over those people and knows what I did to them."

Officer Dowling testified that he was very familiar with the house located at 825 West 50th Place, and that he had also been there during July 1988. According to Dowling, there has never been a pool in the backyard of that home, nor anywhere else in the 800 block of 50th Place.

In defendant's rebuttal case, Jenkins testified that she was mistaken as to the exact location of the pool party. Jenkins testified that the pool was located at 815 West 50th Place, instead of 825 West 50th. However, Morrison had since relocated the pool. Photographs were introduced to show the area where the pool was allegedly located. Three other witnesses who were acquainted with defendant and Jenkins corroborated her testimony that Morrison had moved the pool the previous year to her new residence.

Following trial, the jury returned a guilty verdict for the first degree murder of all five victims, but acquitted defendant of aggravated arson. The jury also found defendant eligible for the death penalty under the statutory aggravating factor of murder of two or more individuals. Ill. Rev. Stat. 1985, ch. 38, par. 9-1(b)(3).

The jury heard the testimony of several witnesses at the sentencing phase of the trial, and found no mitigating factors sufficient to preclude the imposition of a death sentence. The Judge sentenced defendant to death for the murder of the five victims.

PRETRIAL ISSUES

Defendant contends that he was denied his right to equal protection under the fourteenth amendment when the State engaged in purposeful discrimination against him in violation of Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712. Defendant offers two challenges to the Batson procedure employed by the trial court. We first address defendant's contention that the State engaged in purposeful racial discrimination in the manner in which it exercised its peremptory challenges.

This case involved an interracial crime committed by an African-American defendant against five Hispanic victims. As a preliminary matter, the record shows that the venire was composed of 62 members, and that approximately 20 individuals were representative of minority groups. Three African-Americans and one Hispanic individual were seated on the jury. The State exercised a total of 12 of its 14 peremptory challenges, and six (50% of its peremptory challenges) were exercised against African-Americans.

The trial court made no finding that defendant demonstrated a prima facie case of purposeful racial discrimination under Batson. Nonetheless, the State volunteered its race-neutral explanation for the record after each strike of a black venireperson. Defendant correctly notes that the issue of whether defendant has made a prima fade showing becomes moot where the trial court fails to determine whether a prima facie case has been made, the State offers an explanation for the peremptory challenge, and the trial court rules on the ultimate question of intentional discrimination. ( Hernandez v. New York (1991), 500 U.S. 352, 114 L. Ed. 2d 395, 111 S. Ct. 1859; People v. Mitchell (1992), 152 Ill. 2d 274, 288-90, 178 Ill. Dec. 354, 604 N.E.2d 877.) Thus, the issue we need address is whether the trial Judge's findings were clearly erroneous.

In Hernandez, the Supreme Court established the following guiding principles to evaluate the race neutrality of an attorney's explanation. A court must determine whether, assuming the proffered reasons for the peremptory challenges are true, the challenges violate the equal protection clause as a matter of law. (Hernandez, 500 U.S at , 114 L. Ed. 2d at 406, 111 S. Ct. at 1866.) A neutral explanation is defined as an explanation based on something other than the race of the venireperson. (Hernandez, 500 U.S at 114 L. Ed. 2d at 406, 111 S. Ct. at 1866.) Unless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race neutral (Hernandez, 500 U.S. at , 114 L. Ed. 2d at 406, Ill S. Ct. at 1866) and need not rise to the level of a challenge for cause. Batson, 476 U.S. at 97, 90 L. Ed. 2d at 88, 106 S. Ct. at 1723.

Once the prosecutor offers a race-neutral basis for his exercise of peremptory challenges, it is the trial court's duty to determine if the defendant has established purposeful discrimination. ( Batson, 476 U.S. at 98, 90 L. Ed. 2d at 88-89, 106 S. Ct. at 1723-24.) Since the trial Judge's finding constitutes a credibility determination, it should be given great deference ( Batson, 476 U.S. at 98 n.21, 90 L. Ed. 2d at 89 n.21, 106 S. Ct. at 1724 n.21) and will not be overturned unless it is clearly erroneous (Hernandez, 500 U.S. at , 114 L. Ed. 2d at 412, 111 S. Ct. at 1871).

Defendant challenges the State's exercise of peremptory challenges against four African-American venire members. We address the State's proffered explanation for each excluded venire member in turn.

Mane Shorter

Marie Shorter, a divorced mother of three adult children, worked for Quaker oats as a computer operator for over 14 years. The State's explanation for removing Shorter was that the victim, Deborah Sepulveda, also worked for Quaker Oats. In its brief, the State argues that it did not want to have a juror who might have a negative view of the victim, thereby tainting the jury and preventing a fair trial.

Defendant contends, however, that the State failed to demonstrate the manner in which the fact that Shorter worked for the same corporation as the victim would prevent her from functioning as a fair and impartial juror. Specifically, defendant contends that the record is devoid of any factual information to show that Shorter and the victim knew each other. The trial Judge afforded the State the opportunity to question the jurors during voir dire; however, the only question asked by the State was the length of time that Shorter had been employed by Quaker Oats.

The State concedes that Shorter did possess characteristics of a number of other venirepersons whom the State did not challenge and who ultimately sat on the jury. For example, Shorter had been the victim of a crime, and stated that she did not have any strong personal or religious beliefs that would prevent her from imposing the death penalty under a appropriate circumstances. Said characteristics were also possessed by 5 of the 12 seated jurors and one alternate juror. However, the State maintains that the additional factor of Shorter's employment at the same corporation as the victim. Deborah Sepulveda, distinguished her from the other acceptable jurors.

Pursuant to Batson, it is the State's burden to "articulate" 'a clear and reasonably specific' explanation" for its use of peremptory challenges against minority venirepersons. People v. Harris (1989), 129 Ill. 2d 123, 181, 135 Ill. Dec. 861, 544 N.E.2d 357, citing Batson, 476 U.S. at 98 & n.20, 90 L. Ed. 2d at 88 & n.20, 106 S. Ct. at 1724 & n.20, quoting Texas Department of Community Affairs v. Burdine (1981), 450 U.S. 248, 258, 67 L. Ed. 2d 207, 218, 101 S. Ct. 1089, 1096.) As instructed by Hernandez, the State's rationale for exercising a peremptory challenge must be race neutral. In this case, the State's exclusion of juror Shorter does not demonstrate racial motivation. While it is true that the State might have inquired further to establish a connection between Shorter and Deborah Sepulveda, it cannot be said that the proffered explanation was based upon the race of the juror or demonstrated a discriminatory intent. The trial court did not err in finding the State's reasons race neutral.

Steven Gillenwater

Gillenwater, a 35-year-old married man, was employed as a social worker for pregnant teenagers at a Chicago area hospital. The State's explanation for the exclusion of Gillenwater was based not only upon his educational background as a social worker, but also because of his demeanor and his highly equivocal answers as to whether he could actually sign a verdict to impose the death penalty. Defendant argues that the State's reason for excluding Gillenwater based upon his employment as a social worker is inconsistent with the fact that other jurors who were seated possessed similar occupations.

Review of the record during the voir dire of Gillenwater reveals his level of discomfort with imposing the death penalty. Gillenwater stated that he was "pretty strongly opposed to the death penalty." Although he could put his feelings aside and base his decision on the evidence presented at trial, he indicated that he did not "like it, but there is not a heck of a lot I can do about it right now.

In resolving Batson claims, this court has consistently upheld prosecutor's challenges concerning the person's viewpoints toward the death penalty. ( People v. Howard (1991), 147 Ill. 2d 103, 167 Ill. Dec. 914, 588 N.E.2d 1044; People v. Mack (1989), 128 Ill. 2d 231, 131 Ill. Dec. 551, 538 N.E.2d 1107.) We therefore find that the trial court correctly concluded that the State's reason for ...


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