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May 31, 1994


Appeal from the Circuit Court of Cook County. Honorable Gerald T. Rohrer, Judge Presiding.

Released for Publication August 2, 1994.

Manning, Buckley, O'Connor, Jr.

The opinion of the court was delivered by: Manning

JUSTICE MANNING delivered the opinion of the court:

Defendant Peter Weber was charged by indictment with first degree murder and concealment of a homicidal death. (720 ILCS 5/9-1, 5/9-3.1 (West 1992).) Following a jury trial, he was found guilty of both offenses and sentenced to twenty five (25) years and five (5) years, respectively, to be served consecutively. On appeal defendant challenges the legal sufficiency of the indictment. Additionally, he raises two other issues: whether the prosecutor's failure to disclose the identity of an expert obtained seven months before trial, but not disclosed until rebuttal, should have resulted in a bar of that expert's testimony and whether the defendant's right to confrontation and cross-examination was violated where the trial court allowed into evidence statements made by the victim to third persons prior to her death. For the reasons which follow, we affirm.

The record reveals that on the afternoon of October 28, 1988, the victim, Marie Pompilio, earlier reported as missing, was discovered in an alley in Skokie, Illinois. Her body was partially clad and lyingface down in dense bushes. Her head was covered by a blood-soaked tee shirt and she had a large gaping incise wound to the neck.

In the early morning hours of October 28, 1988, defendant was brought into the Skokie Police Department and questioned. He eventually gave a full statement and repeated it several times. In essence, defendant stated that he and Marie argued on the evening of October 27, 1988. While riding around in his car, she first told him she wanted to date other people. He responded to her that if that was the case, he would not continue to visit her because he did not wish to have that type of relationship. He stated that she then placed her hands on his shoulder and tried to reason with him to agree with having that type of relationship. He pushed her hands from his shoulder, and she began hitting him, scratching him and pulling his hair. In an effort to defend himself from her violent behavior, he placed his hands around her throat and pulled her down onto the seat. He stopped choking her when she became limp and her arms fell to her side. After suddenly realizing that she did not appear to be breathing, he drove Marie into an alley, partially disrobed her and cut her throat with his pocket knife in an effort to cover up the incident.

Defendant was first indicted on November 17, 1988, for "having stabbed and killed Marie Pompilio with a knife." Defendant filed a written motion to dismiss the indictment on the grounds that the State refused to inform the Grand Jury that he never stabbed Marie while she was alive. Prior to the court ruling on the motion, the State Nolle Prossed the original indictment and obtained a second indictment. The second indictment alleged in count one that ". . . without lawful justification intentionally and knowingly strangled and killed Marie Pompilio with a knife" and in count two that ". . . . without lawful justification strangled and killed Marie Pompilio knowing such acts created a strong probability of death or great bodily harm to Marie Pompilio." Defendant was arraigned on the second indictment and all motions and orders related to the first indictment were transferred to the second indictment.

On the day the jury trial commenced, the State amended its list of witnesses. However, that amendment did not include the name of Dr. Cleveland. During the State's case-in-chief, several law enforcement personnel testified about their respective roles in the investigation into Marie's murder. Dr. Robert Stein, Chief Medical Examiner of Cook County and a forensic pathologist, who had performed an autopsy on the deceased, testified as to the cause of death. He admitted that he had initially concluded that the knife wounds were the cause of death. However, he stated that after reviewing the police reports, the defendant's statements and after re-examiningMarie's clothes, he changed his opinion as to the cause of death and accordingly, amended the death certificate. He changed the cause of death to "manual strangulation in association with an incised wound to the neck."

Marie's friends and her roommate testified about Marie's relationship with the defendant. Heather Dickinson testified that she remembered how Marie and defendant celebrated the day of the month they met with cards and gifts. Marie also had told Heather that she wanted to break up with defendant because she was feeling trapped and overly protected. Marie's roommate, Amanda, testified that defendant visited Marie often and would buy presents, balloons and candy. On the day of the murder, Amanda saw defendant when he arrived on the campus with a pumpkin and a small knife to carve it. She saw him later that evening at which time defendant gave her Marie's keys and told her that he and Marie had an argument and that Marie had gotten out of the car.

Marie's parents, her other relatives and friends, as well as the campus police, testified about their search for her. The campus policeman also stated that he observed scratches on defendant's hands.

The defendant then took the witness stand and testified in his own behalf. He was an excellent student, an athlete and enjoyed a close relationship with his family. He and Marie had met in their senior year of high school and started dating regularly in February of 1988. They were together almost every day and saw each other three or four times a week including the weekends, except for the time during the summer of 1988 in which he served in the U.S. Air Force. Through the week of the incident, their relationship had not changed. Defendant also described what occurred on October 27 and stated that they had an argument and that Marie had attacked him. Defendant explained that he was trying to protect himself and not hurt Marie. After he "tried to push her away and started squeezing" her, he "stopped when her arms fell to her side." He thought Marie was angry and ignoring him when she did not respond to her name. However, once he stopped the car, he felt for her breath but did not feel anything. Defendant believed Marie was dead and because he was scared he took her body to an alley and left her there. He remembered "seeing a cut on her neck . . . seeing the knife"; however, he said it was an accident.

Dr. Larry Blum testified as defendant's expert witness. He stated that he examined the physical evidence, considered the autopsy report, the scene and the surrounding circumstances. He concluded that Marie's cause of death was manual strangulation and that the incision wounds to the neck were post-mortem.

On the last day of trial, the State tendered the vitae of Dr. Frank Cleveland, an out-of-state forensic expert. The defense objected to his testimony on the grounds of surprise, prejudice and violation of the discovery rules, specifically Supreme Court Rule 220 and Rule 412. The State responded that Supreme Court Rule 220 governs discovery in civil proceedings but does not apply to criminal trials. Over the defendant's objection, the trial court allowed Dr. Cleveland to testify as a rebuttal witness. He opined that death was caused by external hemorrhage due to incise wounds of the neck. However, ...

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