Appeal from the Circuit Court of Cook County. Honorable JOHN MORAN, Judge Presiding.
Released for Publication July 14, 1994. Petition for Leave to Appeal Denied October 6, 1994.
Buckley, O'connor, Jr., Manning
The opinion of the court was delivered by: Buckley
JUSTICE BUCKLEY delivered the opinion of the court:
Following a jury trial, defendant Dennis Szudy was convicted of first-degree murder and concealment of a homicidal death. The trial Judge also found defendant to be a habitual criminal pursuant to section 33B-1 of the Criminal Code of 1961. (Ill. Rev. Stat. 1991, ch. 38, par. 33B-1 (now 720 ILCS 5/33B-1 (West 1992)).) Accordingly, the trial Judge sentenced defendant to a sentence of natural life imprisonment pursuant to section 33B-1 to be served consecutively with a five-year sentence of imprisonment for concealment of the death. On appeal, defendant contends that: (1) the elicitation of highly prejudicial testimony by the prosecutor constituted reversible error and denied him due process; (2) the admission of highly prejudicial testimony denied him his right to a fair trial; (3) the court's excusal of several jurors for cause denied him his right to a fair trial; (4) prosecutorial misconduct during closing argument denied him his right to a fair trial; (5) the improper exclusion of favorable evidence denied him his right to a fair trial; (6) the publication of morgue photographs of the victim to the jury denied him his right to a fair trial; (7) he was not proven guilty beyond a reasonable doubt; (8) section 33B-1 of the Criminal Code of 1961 pursuant to which he was sentenced is unconstitutional; and (9) his conduct was not exceptionally brutal or heinous and, therefore, a natural life sentence was unwarranted. We affirm defendant's convictions and sentences.
On November 25, 1989, Sergeant George Owen of the Chicago police department received an anonymous phone call from a male individual who suggested that the police check the sewers at 42nd and Packers. The anonymous caller further stated that, if a body were discovered, to look for an automobile with Illinois license plate number SM 1972.
On November 27, 1989, the police discovered the partially decomposed and skeletonized body of a white female who had been shot five times. The body was wrapped in a "bundle" which consisted of three layers. The outermost layer was a sheet. The next layer consisted of a large plastic asbestos removal bag which was secured with a coat hanger. This bag was marked "Disposalene," "asbestos removal," and "danger." The innermost layer in which the body was wrapped was a large beige quilt or comforter. The body was clad in a black sweater pushed up over the breasts, a T-shirt and two gold chains. The ankles and hands were secured with coathangers.
Dr. Robert Kirschner, an assistant medical examiner, performed the autopsy on the body and determined that the cause of death was multiple gunshot wounds. He also determined that the victim's blood type was Type B. In his opinion, the body had been in the sewer for "more than many weeks" and could have been there for as long as 10 months. Based on dental records, he identified the body as that of Yvonne Minchuk. According to Dr. Kirschner, Yvonne had been shot twice in the back of the head, twice in the chest, and once in the back. Dr. Kirschner also recovered four .22 caliber long rifle bullets from the body. Jeanette Minchuk, Yvonne's mother, was able to identify her daughter's body at the morgue by her rose and butterfly tattoos. Pursuant to further investigation, the police discovered that Illinois license plate number SM 1972 was registered to Lucille Werner who lived at 4302 South Honore. The police proceeded to the address which was only approximately a half mile from the sewers at 42nd and Packers. The building at 4302 South Honore was a residential building consisting of six apartments. The police observed a 1979 white Chevrolet Chevette with license number SM 1972 parked directly across the street from the location.
The police spoke with Lucille Werner, who turned out to be a former girl friend of the defendant, Joseph Parejko, and Charles Kelsay. The police discovered that near the end of January 1989 a 28-year-old female named Yvonne Minchuk had disappeared from the building. They also learned that Yvonne, a prostitute and drug-addict, was defendant's girl friend and had resided with him in his third-floor apartment.
On November 27, 1989, Detective Thomas Ptak arrested defendant and transported him to Area 3 police headquarters. Defendant gave Ptak the keys to his apartment saying that he had "nothing to hide" and wanted to cooperate. Ptak searched defendant's apartment and inventoried several "love" letters from Yvonne to defendant, a blue and yellow comforter with reddish stains on it, and a plastic bag marked "Disposalene." On November 29, 1989, Detective Charles Freed also searched defendant's apartment. Freed observed numerous bullet holes in the walls of the apartment and a .22 caliber cartridge was discovered in the bedroom wall.
Jeanette Minchuk testified that her daughter was defendant's girl friend for approximately two years. She stated that in December 1988, Yvonne and defendant drove to her home in Hammond, Indiana to drop off Yvonne's daughter Gretchen. According to Jeanette, Yvonne and defendant had packed Gretchen's clothing in a heavy black bag marked "Asbestos" and "Warning" and had taken the bag with them when they left. She testified that this was the last time she saw her daughter alive.
According to Jeanette, in January 1989, after she had not heard from her daughter, Jeanette called defendant, attempted to file a missing person's report in Hammond and called the jails. She further asserted that, in March 1989, defendant visited Jeanette in Hammond. Jeanette stated that he told her that Yvonne had left him in January 1989, had stolen money from him and that, if he caught her, he would kill her.
Donald Busse, Jeanette's live-in boy friend, testified that defendant visited him in December 1988, after Yvonne had left defendant and Jeanette had left him. According to Busse, defendant told him "Give me five thousand dollars, I'll take care of both of them." Busse admitted, however, that he did not inform the police about this threat until after Yvonne's body was discovered.
Rory Compton, an ex-felon who had been convicted of armed robbery in 1982, testified that defendant spent Christmas Day in 1988 with him and his wife in Belleville, Illinois. Compton testified that defendant asked him where he could get a gun for the purpose of protecting himself from Yvonne's pimps. Compton stated that he gave defendant his wife's Jennings handgun which was a .22 caliber long rifle semi-automatic pistol. According to Compton, he never saw or heard from defendant again and his attempts to retrieve the gun were unsuccessful.
When the Compton residence was burglarized in March 1989, however, Compton reported to his insurance company that the handgun had been stolen. He stated that he had lied to the insurance company and to the police about the gun. He also asserted that defendant had said that he was upset with Yvonne because she kept getting arrested and that he had told Yvonne that, if she got arrested again, he would get rid of her.
Charles Kelsay, an ex-felon who had been convicted of burglary in 1981, testified that he lived in a second-floor apartment at 4302 South Honore and that he had known defendant for approximately six years. Kelsay worked for an asbestos removal company and stated that he would bring home large plastic asbestos removal bags and give them to his neighbors. He testified that he had given two such bags to defendant and Yvonne. Kelsay also stated that, in December 1988, defendant told him that Yvonne had been arrested and that he was going to bail her out of jail. According to Kelsay, after defendant bailed Yvonne out of jail, he saw her around the building for about three days. Sometime later, defendant brought Yvonne's clothing and make-up over to Kelsay's apartment and asked Kelsay's daughter if she wanted them because Yvonne had left and was not coming back. According to Kelsay, defendant told him on one occasion that he thought Yvonne was in New York and, at another time, that he had spoken with Yvonne's mother and that Yvonne was in jail in Indiana.
Kelsay also testified that, on July 4, 1989, defendant had a Jenning's semi-automatic handgun which he and defendant fired at a tree. He stated that he purchased the gun from defendant for $75 and then sold it to Harry Sells for $100. Sells subsequently turned the gun into the police and both Sells and Kelsay identified the gun in court.
On cross-examination, Kelsay admitted that Yvonne was a prostitute and that he had seen Yvonne "shoot up" drugs. He also stated that he had seen blood dripping from her arms and that she would use a towel to stop the bleeding. He also stated that defendant would be on the road for days and weeks at a time because he was a truck driver and that, while he was away, Yvonne would have male visitors in the apartment.
Joseph Parejko lived in a third-floor rear apartment at 4302 South Honore with Lucille Werner and her daughter Sandra. Lucille Werner died of leukemia on April 2, 1990. Parejko stated that the last time he saw Yvonne was near the end of January 1989. He testified that, after Yvonne disappeared, the defendant told him that she had gone away, but had left her belongings. Parejko also stated that defendant told him that Yvonne had taken him for "two grand" and then stolen $250 from him. Parejko knew that defendant had recently posted a $2,000 bond in order to bail Yvonne out of jail. Subsequently, defendant gave some of Yvonne's clothing to Lucille and her daughter. Parejko also stated that he had seen defendant with the black asbestos bags he had obtained from Kelsay. Parejko also identified the .22 caliber semi-automatic handgun in court as the gun defendant had in his possession near the end of February 1989. He stated that he and defendant shot the gun in defendant's apartment near the end of February 1989, and that, subsequently, on July 4, 1989, he had witnessed defendant shooting the gun at a tree in front of the 4302 South Honore building.
Parejko also testified that defendant had admitted to him that he had killed Yvonne. He stated that he told Detective Kill about the admission on November 29, 1989, after defendant had been arrested. He asserted that he had not informed the police earlier about defendant's admission even though he had been interrogated at the police station about Yvonne's disappearance on November 27 and 28 because defendant had threatened to kill him, Lucille Werner and her daughter if he told anyone.
Apparently, on November 29, 1989, while in defendant's apartment with Detective Kill, Parejko described defendant's handgun and told Kill that Lucille's license plate SM 1972 had been stolen off of her vehicle sometime after January 1989. He also told Kill that, several days after he and defendant had shot the Jennings semi-automatic handgun in defendant's apartment, defendant invited him to his apartment for coffee. According to Parejko, defendant then told him that he knew Yvonne was not coming back because he had killed her by taking her into the bedroom, covering her with a quilt and shooting her four times. Parejko stated that he had not believed defendant. In his signed statement to the police, Parejko asserted that defendant said to him: "I covered her with a comforter and shot her four or five times." Parejko testified to the same story in front of the grand jury.
James Treacy, a firearms examiner with the police crime lab, testified that he examined four bullets and bullet fragments sent to him by the medical examiner's office. He determined that all four bullets were fired from the same weapon and were .22 caliber long rifle bullets. He also examined and test fired the Jennings .22 caliber handgun submitted to him by the police. In his opinion, it was a possibility - but not a certainty - that the recovered bullets had been fired from the .22 Jennings. He also examined the discharged cartridge that had been recovered from the wall in defendant's apartment. According to Treacy, this cartridge, however, was not fired from the submitted handgun. He also stated that the .22 Jennings semi-automatic handgun was a common handgun and that thousands of this model are available on the market.
Christine Braun, a forensic serologist with the Chicago police department, testified that, on November 29, 1989, she examined defendant's apartment. She stated that she discovered blood stains of human origin in the kitchen, bedroom, spare bedroom and hallway. According to Braun, blood on the kitchen ceiling and on paper recovered from the floor of the bedroom was blood Type O. The blood she discovered under the kitchen table, on a bedroom mattress, and on the spare bedroom window, window frame and curtain was blood Type B. She testified that the blood in the area of the window was consistent with a splatter pattern. She could not determine, however, the age of the blood and it could have been months or years old. Braun also did not observe any pools of blood in defendant's apartment nor did she discover any blood on the comforter or on a black jacket which had belonged to Yvonne. She also did not perform any enzyme tests on the blood discovered in the apartment because the blood from the victim which she obtained from the Medical Examiner's office was too degraded to make any comparison possible. She also stated that only 9% of the white population has Type B blood.
Detective Kill testified that, during his investigation, he spoke to defendant at the police station and asked him if there was any blood in his apartment. Defendant said there was none. After blood was discovered in his apartment, Kill asked defendant to explain its presence. According to Kill, defendant told him that there might be blood in the kitchen because that was where he and Yvonne would shoot narcotics and sometimes the blood would spurt all over the ceiling, drapes, table and floor. Kill also stated that defendant told him that, if he were going to kill Yvonne, he would use a "backhoe" rather than bury her in a sewer. Additionally, Kill testified that, on November 29, 1989, while he was searching ...