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03/24/94 PEOPLE STATE ILLINOIS v. ROBERT FAIR

March 24, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,
v.
ROBERT FAIR, APPELLANT.



Bilandic

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, Robert Fair, was convicted of the murders of Candace Augustus, and her 11-year-old son, Gregory. (Ill. Rev. Stat. 1987, ch. 38, par. 9-1(a)(1).) The same jury which convicted defendant determined that he was eligible for the death penalty based upon two statutory aggravating factors: (1) murder of two or more individuals (Ill. Rev. Stat. 1987, ch. 38, par. 9-1(b)(3)); and (2) murder of an individual under 12 years of age which resulted from exceptionally brutal or heinous behavior indicative of wanton cruelty. (Ill. Rev. Stat. 1987, ch. 38, par. 9-1(b)(7).) After the jury found no mitigating circumstances sufficient to preclude imposition of the death sentence, the trial Judge sentenced defendant to death.

The defendant's 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 following reasons, we affirm defendant's convictions and death sentence.

SUMMARY OF FACTS

The evidence at trial established that after the victim, Candace Augustus, failed to report to work on October 17, 1987, at the restaurant where she was employed, her co-workers became concerned. An employee from the restaurant notified Candace's mother, Mary Sieg, of her absence. Mary Sieg was alarmed because there had been some problems between Candace and defendant, who was her boyfriend at the time.

During the early morning hours of October 18, 1987, Candace's brother, Steven Augustus, and Mary Sieg drove to the trailer home in Dixmoor, Illinois, where Candace lived with her son Gregory. As they drove into the trailer park, Steven noticed that the trailer was dark and that Candace's car was missing. The door to the trailer was locked.

After receiving no response to his knock, Steven broke a window to enter the trailer. He entered his nephew's room and turned on the bedroom light. He looked on the bed and found the comforter in disarray with blood spattered all over the wall next to the bed. He pulled back the blanket and found the entire side of his nephew's head covered with blood. Because Gregory's body was cold to the touch, Steven believed him to be dead.

Steven then left Gregory's room and walked down the hallway into his sister's bedroom. He found Candace's lifeless body lying on her back across the bed, still clutching a pillow over her face. After she did not answer when he called her name, Steven telephoned the police.

Illinois State Police Investigator Dexter Bartlett, an evidence technician, processed the crime scene. Bartlett was found to be an expert in the field of blood-spatter and flight interpretation, which is a scientific formula used by crime technicians to measure through mathematics the velocity and type of instrument used to inflict an injury. The cast-off patterns found in Gregory's room revealed that he was struck with a bludgeoning weapon, such as a baseball bat. The blows leveled at Gregory's head were delivered with a high degree of impact, which caused his skull to break open. Bartlett found several pieces of skull and brain matter on the comforter which was removed from Gregory's head. Brain matter was also found on the bedroom wall and curtain. Because the victim was found lying on his left side in a very relaxed state, Bartlett opined that the victim was asleep at the time the attack occurred and never woke up. There was no apparent struggle or disturbance in his room. The amount of blood present on the baseball bat indicated that Gregory was the first victim bludgeoned to death.

Investigator Bartlett found Candace's body lying across the bed, with an aluminum baseball bat underneath her legs. After removing the pillow which covered Candace's head, Bartlett noted that her face and head were caved in and disfigured.

Brain matter which had emerged from the top of her head was smeared over her face. Candace had bruises on her hands and forearms. The blood spatter on the bedroom wall and ceiling indicated that the injury to the victim had been rendered by a blunt instrument. It was Bartlett's opinion that the injuries to both victims were consistent with being struck with a baseball bat with a high degree of velocity from the weapon itself.

While investigating Candace's room, Bartlett found an unsheathed knife on the top of the cable television box. Joseph Ambrozich, a forensic scientist and expert fingerprint examiner, conducted tests on the knife. Ambrozich found 12 points of comparison on the knife to defendant's fingerprints.

Dr. Robert Kirschner of the Cook County medical examiner's office performed the autopsies on the victims. Three blows, which were consistent with being struck with a baseball bat, resulted in the severe blunt trauma injuries to the head that led to Gregory's death. A gaping laceration on the right side of Gregory's head extended approximately eight inches from the rear to the front of the head. Multiple skull fractures were associated with the laceration. Dr. Kirschner noted extreme injury to several parts of the brain. Dr. Kirschner concluded that Gregory's death occurred almost instantaneously because the infliction of the wound on the right side of the head would have rendered him unconscious.

The autopsy of Candace also revealed severe blunt trauma injuries and lacerations to the head. The autopsy showed partial tearing away of the skin from the scalp and multiple depressed skull fractures exposing the underlying brain tissue. The brain itself showed extreme injury, as the right frontal lobe was partially pulverized, and the left frontal lobe also had extensive damage. There were multiple bruises involving the upper facial tissues, bridge of the nose, and the right temporal region as well as extensive injuries to both the upper and lower lip. Bruises and injuries on Candace's left hand were defensive type injuries. The injuries to Candace were consistent with having been stricken by a baseball bat approximately five times.

Officer Michael Morgan of the Dixmoor police department headed the investigation into the victims' deaths. Officer Morgan spoke with Lisa Renison, who also worked at the same restaurant where Candace was employed. Renison had spoken with Candace about her relationship with defendant. Candace and her son hid known defendant for approximately 10 years, and at one time they lived together with him and his common law wife and children in California. About six weeks earlier, defendant "showed up" on Candace's doorstep upon returning to Illinois from California. Candace had taken defendant into her home because he had nowhere else to go. However, Candace did not want defendant in her home because he was not working, and she did not want her son to be subjected to his lifestyle. Renison believed that Candace was afraid of defendant. Renison knew that Candace was upset after work on the evening of October 16. Candace told Renison that she was going to tell defendant that she wanted him out of her house that night.

The Dixmoor police contacted defendant's common law wife, Linda Coslet, who lived in California. Coslet told the Dixmoor officers that defendant had some relatives in Coahoma County, Mississippi, in the vicinity of Clarksdale. She also indicated that she was quite afraid of defendant and was not surprised that he could do something like this.

Officer Morgan spoke with the Coahoma County sheriff's office in Clarksdale, Mississippi. He learned that defendant was in the vicinity. Apparently, defendant told several relatives that he returned to Mississippi because he was involved in a murder in Chicago. Officer Morgan also discovered that defendant had a criminal background of armed robbery and theft.

On October 21, Officer Morgan and another Dixmoor officer drove to Mississippi. Upon their arrival, they spoke with several of defendant's friends and relatives. The officers left cards with those interviewed, and asked them to tell defendant to contact them at the Coahoma County sheriff's department.

In the early morning hours of October 23, defendant voluntarily walked into the Coahoma County sheriff's office. Defendant identified himself to Officer Gibson, the officer on duty at the time, and asked whether someone was looking for him. Deputy Gibson searched defendant around 1:45 a.m. in the lobby of the station. According to defendant, he was then placed in a locked detention room for 90 minutes until the Dixmoor officers arrived at the station. Defendant was advised of the Miranda warnings by the Coahoma County officers. He initialed a form which indicated that he understood those warnings. Defendant was not handcuffed, fingerprinted or photographed at that time, nor was he told that he was under arrest. The Coahoma County officers placed defendant in a waiting room and did not question him.

The Dixmoor police officers arrived at the Coahoma County sheriffs office around 3 a.m. The Dixmoor officers showed defendant the Miranda waiver which he had previously signed. The officers started the questioning by asking if he knew the reason why he was here, to which defendant replied that it was his understanding that it was for murder. He did not appear to be surprised when he was told that Candace and Gregory had been murdered. The interview between defendant and the Dixmoor officers was recorded on microcassettes. During these conversations, defendant denied having anything to do with the murders, repeatedly telling the officers that Candace and Gregory were "like family" to him and that he had raised Gregory as his own son.

During the first interview, defendant told the officers that he left Dixmoor by flagging a cab just outside the trailer park. Defendant stated that he had left some clothing inside Candace's trailer; however, Officer Morgan had not seen any evidence of defendant's belongings at the trailer. Defendant also said that he rode with a person named Tony Williams from Chicago to Memphis. He told the Dixmoor officers that he had visited a number of relatives in Friar's Point, Mississippi. While staying with his uncle, he learned the police wanted to talk with him. Because he did not want to bring trouble to his family, he left his uncle's house and hid for several days in the woods and abandoned buildings. Defendant also said that he wanted to know why the police wanted to talk with him and the evidence they had against him.

The questioning ended around 4:45 a.m. in the morning. Officer Morgan and the Coahoma County officers both told defendant that he was a suspect in the double murder and that he was going to be held at the station so that his story could be checked out and he could get some sleep.

Later that day, around 2:15 p.m., the officers again interviewed defendant following Miranda warnings. The interview lasted until 5:30 p.m., at which time defendant indicated that he was tired. After a brief rest, defendant told the Dixmoor officers, "I did it. Sit down and I will tell you how I did it."

According to his statement, defendant had been having personal problems with Candace. On the evening of the murder, defendant was in the back bedroom lying down when he heard Candace arrive home around 12:30 a.m. He unlocked the front door to let her into the trailer. After changing her clothes, Candace and defendant began arguing about their personal life and defendant's wife, Linda, who was still in California. As the argument became more heated, Candace pulled out a hunting knife. Defendant was able to disarm her and placed the hunting knife on top of the cable television box.

The argument progressed, and, according to defendant, "things just got crazy." He walked into the living room and picked up Gregory's bat from a chair, went into the boy's room, and struck him three times with the baseball bat in the head. He left Gregory's room, placed the bat on the bathroom floor, and returned to Candace's room. Candace was sitting on the bed. Defendant knelt beside her and began to cry; however, she continued to curse him so he got up and retrieved the bat. Defendant then struck Candace four or five times in the head with the baseball bat.

Defendant walked into the living room, sat down in the middle of the floor, and cried. Defendant admitted that he did not know why he killed Candace and Gregory, for he loved and cared for both of them. However, things just "got out of hand." He got dressed, took the keys to Candace's car and the bag which he had previously packed, and left the trailer. After stopping for gas, cigarettes and coffee, defendant drove south on I-57. Although he was tempted to return at one point, he continued driving to Champaign, Illinois. He spent the night in a hotel and parked Candace's car in a parking lot across the street. Later that afternoon he boarded a bus to Memphis and, eventually, another bus bound for Clarksdale, Mississippi.

Defendant indicated that the statement was made of his own free will, he had not been threatened or coerced, and no promises had been made to him. Defendant never requested an attorney, nor did he express a desire to stop the interview.

The next day, following Miranda warnings, defendant agreed to give a handwritten statement. Officer Morgan prepared the statement, which defendant signed after making a correction. At the same time that defendant signed the statement, he also signed an extradition waiver indicating that he wanted to return to Illinois with the Dixmoor officers. An Illinois warrant for defendant's arrest was obtained on October 24 at 12:30 a.m.

Assistant State's Attorney Sheila Devane interviewed defendant upon his return to Illinois. Defendant agreed to give his statement to a court reporter. That statement was substantially the same as the handwritten statement previously given to the Dixmoor officers. Defendant did not testify at trial.

At the close of the evidence and arguments, the jury returned a guilty verdict for the first degree murder of the two victims. The same jury found that defendant was eligible for the death penalty based upon two statutory aggravating factors: (1) murder of two or more individuals (Ill. Rev. Stat. 1987, ch. 38, par. 9-1(b)(3)); and (2) murder of an individual under 12 years of age which resulted from exceptionally brutal or heinous behavior indicative of wanton cruelty (Ill. Rev. Stat. 1987, ch. 38, par. 9-1(b)(7)). After hearing the testimony of several witnesses at the sentencing phase of the trial, the jury found no mitigating factors sufficient to preclude the imposition of a death sentence. Accordingly, the Judge sentenced defendant to death for the murder of the two victims.

PRETRIAL ISSUES

The first assignment of error concerns the trial court's denial of defendant's two motions to quash arrest. In the first motion, defendant maintained that he was arrested without probable cause when he first entered the Coahoma County sheriff's office between 1:30 a.m. and 2 a.m. on October 23, 1987. After hearing defendant's testimony, the trial Judge denied that motion, finding that defendant voluntarily entered the police station and that no arrest occurred at that time. Defendant renewed the motion to quash arrest, alleging that the Mississippi authorities illegally arrested him without probable cause after 2 a.m., subsequent to an interview conducted by the Dixmoor police department. After the Judge listened to the taped interview between defendant and the Dixmoor officers, and held another hearing, the second motion to quash arrest was also denied.

In essence, defendant contends that he was arrested without probable cause because circumstances which arose after he voluntarily entered the Coahoma County sheriff's office -- i.e., search and seizure of his belongings and person; repeated Miranda warnings; confinement in a locked room for 90 minutes; followed by a lengthy police interrogation -- demonstrate that a reasonable person in defendant's position would not have believed that he was free to leave the police station.

Defendant correctly notes that factors considered in determining whether an arrest has occurred include: whether a reasonable person, innocent of any crime, would have considered himself arrested or free to leave; the intent of the officer and the understanding of the arrestee; and whether the defendant was told he was free to leave or that he was under arrest. ( People v.Holveck (1990), 141 Ill. 2d 84, 152 Ill. Dec. 237, 565 N.E.2d 919.) The arrestee's understanding is not identical to the arrestee's subjective beliefs at the time of arrest; rather, the accepted test of understanding is "'what a reasonable man, innocent of any crime, would have thought had he been in the defendant's shoes.'" People v. Wipfler (1977), 68 Ill. 2d 158, 166, 11 Ill. Dec. 262, 368 N.E.2d 870, quoting Hicks v. United States (D.C. Cir. 1967), 127 U.S. App. D.C. 209, 382 F.2d 158, 161.

The Supreme Court further defined the meaning of "seizure" in United States v. Mendenhall (1980), 446 U.S. 544, 64 L. Ed. 2d 497, 100 S. Ct. 1870, as set forth below:

"We adhere to the view that a person is 'seized' only when, by means of physical force or a show of authority, his freedom of movement is restrained. Only when such restraint is imposed is there any foundation whatever for invoking constitutional safeguards. The purpose of the Fourth Amendment is not to eliminate all contact between the police and the citizenry, but 'to prevent arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals.'" Mendenhall, 446 U.S. at 553-54, 64 L. Ed. 2d at 509, 100 S. Ct. at 1877, quoting United States v. Martinez-Fuerte (1976), 428 U.S. 543, 554, 49 L. Ed. 2d 1116, 126, 96 S. Ct. 3074, 3081.

Application of the foregoing legal principles to the circumstances presented in the case sub judice leads to the Conclusion that defendant was not placed under arrest when he first walked into the Coahoma County police station in the early morning hours of October 23. The record indicates that the Dixmoor officers arrived in Mississippi on the morning of October 22 and spoke with several of defendant's friends and relatives. The Dixmoor officers left cards with them, asking defendant to contact them at the Coahoma County sheriff's office. An individual's presence at a police station and responses to questions may still be voluntary even though requested by a police officer. Mendenhall, 446 U.S. 544, 64 L. Ed. 2d 497, 100 S. Ct. 1870; Reid v. Georgia (1980), 448 U.S. 438, 65 L. Ed. 2d 890, 100 S. Ct. 2752; Schneckloth v. Bustamonte (1973), 412 U.S. 218, 225, 36 L. Ed. 2d 854, 861, 93 S. Ct. 2041, 2046.

Defendant voluntarily walked into the police station. According to his own words, he wanted to know what the police "had on him." Defendant was searched upon his entry to the police station; however, it is reasonable to conclude that the search was conducted as a precautionary measure to ensure the safety of the officers who were also in the same room as defendant. Defendant was not handcuffed, fingerprinted, or photographed, which are the typical procedures that the public associates with an arrest. ( Wipfler, 68 Ill. 2d at 167.) Defendant was never told that he was under arrest. At no time was defendant's freedom of movement restrained by a show of authority or by the use of physical force. Defendant was never told that he could not leave the station, nor did he ask if he could leave.

Although the Coahoma County officers read Miranda warnings to defendant, they did not question him regarding the murders of Candace and Gregory. The Dixmoor officers arrived at the police station approximately 90 minutes after defendant entered the police station and conducted the first interview with defendant. The first interview lasted approximately two hours, which is not an unusual length of time when we consider that the subject matter concerned a double homicide. ...


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