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June 20, 1994


Appeal from the Circuit Court of Cook County. Honorable Joan Corboy, Judge Presiding.

Buckley, Campbell, Manning

The opinion of the court was delivered by: Buckley

JUSTICE BUCKLEY delivered the opinion of the court:

Following a bench trial, defendant Carl Redmond was found guilty of first-degree murder. The trial Judge sentenced defendant to 35 years in the Illinois Department of Corrections. On appeal, defendant contends: (1) that the State failed to present sufficient evidence to rebut his intoxication defense and, therefore, did not prove beyond a reasonable doubt that he possessed the requisite mental state for first-degree murder; (2) that he was prejudiced when the trial Judge refused to appoint him standby counsel during the hearing on his post-trial motions because the Judge erroneously believed she did not have the discretion to appoint standby counsel; (3) that his 35-year sentence was excessive because the Judge failed to give adequate consideration to his rehabilitative potential and to the fact that his conduct was caused by PCP intoxication; (4) that his conviction must be reversed because the State suppressed evidence and relied upon perjured testimony and his court appointed counsel cooperated in this "fraud"; and (5) that the order of sentence reflects two convictions for first-degree murder where there was only one death and, therefore, his sentence must be vacated and remanded for resentencing because the trial Judge improperly considered both convictions in fashioning a sentence or, at the least, the order of sentence must be amended to reflect only one conviction.

On November 3, 1988, defendant shot and killed the victim, Deborah Austin. He was arrested and charged by indictment with two counts of first-degree murder, attempted first-degree murder, armed violence and unlawful restraint. Prior to trial, the State nolle prossed the armed violence charge. Defendant then waived his right to a jury trial and was tried on the murder, attempted murder, and unlawful restraint charges by the court.

Esther Crawford, the victim's mother, testified that defendant had been living with the victim and her eight-year-old daughter for approximately six months, but had moved out just prior to the killing because the victim's boy friend was coming to visit. According to Crawford, defendant subsequently moved some of his belongings back into the victim's apartment, but she did not believe he was living there on a day-to-day basis. She stated that, after defendant killed the victim, she began receiving phone calls from defendant. Defendant explained to her how the shooting happened, but told her he did not know why he had killed the victim. Crawford testified that defendant never told her that he had heard the voice of his army drill sergeant telling him to shoot the victim.

Vera Johnson, the registration clerk with the City of Evanston Recreation Department, testified that her working area at the Evanston Civic Center faces the front of the lobby. She testified that, on November 3, 1988, at approximately 11 a.m., she saw the victim in the civic center lobby arguing with a black male. The victim appeared agitated, but the man was calm and kept his hands in his pockets the entire time. At some point during the argument, a co-worker told the victim that she had some mail. As the victim returned to her office, the man asked the victim if he could come with her to her office. According to Johnson, the victim said, "No, I'm through talking to you. I have nothing else to say." The victim then went inside her office and the man walked down the hall. Johnson then saw him return and stop at a water fountain. Subsequently, however, while Johnson was waiting on a customer, she noticed the man walk quickly past her toward the victim's office. Approximately five minutes later, she heard the victim scream for Elaine Ferris and heard the victim say, "No, no, please don't." She then heard a gunshot.

Elaine Ferris, the secretary to the superintendent of the recreation department, testified that she saw a black male follow the victim into her office at approximately 12 p.m. on November 3, 1988. She stated that the door closed behind the man and she heard voices raised in argument. She then heard the victim scream her name several times. When she went to the door of the victim's office, however, she could not get it open because someone was holding it shut. Ferris testified that she heard the victim say "No, don't" and then heard a gunshot. According to Ferris, after the gunshot, Superintendent Jean Ann Schultz ran to the door and unsuccessfully attempted to open it. Schultz then asked the man in the office if he would let her in so she could help the victim, but he refused. Schultz continued to ask calmly for permission to enter to help the victim and eventually the man allowed her into the office. When the door opened, Ferris observed the victim on the floor with a hole in her chest. Ferris then called the police.

Lieutenant Daniel Mangas of the Evanston police testified that, on November 3, 1988, when he arrived at the scene, he stationed officers strategically around the office. Through an office window, he saw Schultz leaning over the body of the victim and he saw defendant standing with his back against the door. Mangas stated that he told defendant to put down his gun. Defendant lowered his gun and, eventually, placed it on a desk top. Mangas then kicked the door open which caused defendant to be propelled across the room toward the gun. According to Mangas, defendant picked up the gun and spun to his left. Mangas grabbed defendant's wrist and they struggled while another officer pulled Schultz out of the office. During the struggle the gun discharged, and a metal object subsequently was discovered embedded in a picture across from the victim's office. Mangas finally gained control of defendant and placed him in custody.

Sergeant Page testified that, after defendant's arrest, he and several other officers escorted defendant to a marked squad car and placed defendant in the back seat. Page stated that he advised defendant of his Miranda rights and asked him if he understood them. According to Page, defendant responded, "yes." Defendant then gave Page his name, its spelling, and his date of birth in response to several more of Page's preliminary questions. In response to further questioning, defendant told Page that he was living with the victim and that he had shot the victim once in the heart because "he had given her several chances and today was the last chance." Defendant also told Page that he was on drugs and that he had drugs in his jacket pocket. Page then pulled seven foil packets out of defendant's jacket. He did not open the packets at that time. According to Page, defendant did not seem to have any difficulty understanding his questions and defendant's answers were responsive.

Detective John Woodward testified that, on November 3, 1988, at approximately 12:24 p.m., he spoke with defendant at the police station after defendant signed a waiver of rights form. Defendant told him that he and the victim had been dating since April 1988, and that he moved in with her and her daughter in July 1988. According to Woodward, defendant said that he had been asked to leave in September 1988 because the victim's boy friend was coming to visit and needed a place to stay. Defendant said that it was at this point when all his problems started. Defendant was arrested by the Skokie police for driving under the influence of alcohol and criminal damage to property. Shortly thereafter, the Chicago police arrested him on a drug charge, but he was released approximately two weeks before the shooting. The victim then allowed him to move back in with her. Woodward testified that defendant asserted that, during that two-week period, defendant and the victim argued frequently about her desire to see other men.

Woodward stated that defendant told him that, on the morning of November 3, 1988, the victim had asked defendant to move out again. They argued all morning and defendant removed the victim's gun from her closet when she left to take her daughter to school. When she returned, the argument continued and defendant threatened the victim with the gun. The victim called for a neighbor to call the police, but as far as defendant was aware the police were never called. He then walked with her to her office. On the way, he gave the gun to the victim. A police squad car drove by and the victimplaced the gun in her coat. After the squad passed, defendant took the gun from the victim and placed it in his coat. At the victim's office their argument continued.

Defendant told Woodward that, at the office, he "lost it," removed the gun from his pocket, pointed it at the victim's chest and pulled the trigger. After the victim collapsed on the floor, he lit a cigarette which he was smoking when he heard a woman knock on the door. She refused to go away so he let her into the office. When the police arrived, they forced their way into the room. Defendant wrestled with an officer and the gun went off. According to Woodward, defendant stated that he loved the victim and could not stand the idea of her making love to another man.

Woodward also testified that defendant indicated to him that he had a drug problem and that he had gone to the Veteran's Administration Hospital ("VA") for treatment. He asserted that it was his drug problem which caused him to be fired from his job. Defendant did not indicate to Woodward that he was contemplating suicide. Defendant also did not tell Woodward that he had been in a "trance" at the time of the shooting nor that he had heard the voice of his drill sergeant instructing him to carry out his actions.

The parties then entered into a number of stipulations. It was stipulated that, if Dr. Eupil Choi, an assistant Cook County forensic pathologist, was called to testify he would state that he performed an autopsy on the victim on November 4, 1988, and that, in his expert opinion, the victim died of a gunshot wound to the chest. It was further stipulated that the seven foil packets recovered from defendant were inventoried and tested and that three of the packets contained cannabis ("marijuana") and phencyclidine ("PCP") and the other four packets only contained marijuana. It was stipulated that a cigarette found on the office floor was inventoried, but not analyzed.

It was also stipulated that defendant appeared in court on the morning of November 4, 1988, was then transported to the Cook County jail, and spent the night in the "bullpen" without assignment. On November 5, 1988, defendant was assigned to the Residential Treatment Unit ("RTU"), the psychiatric ward, because of "suicidal ideation." He was diagnosed as having a psychoactive substance abuse problem. On November 6, 1988, the RTU determined that defendant was no longer a suicide risk and released him into the general population.

The parties also stipulated that, if George Moore, a psychiatric social worker with the VA, was called to testify, he would state that he interviewed defendant on November 1, 1988, two days prior to the shooting, when defendant applied for admission to the VA's drug treatment program. Defendant told Moore that he had a problem with PCP and alcohol. It was Moore's impression that defendant was under the influence during the interview. Defendant told Moore that he had been smoking PCP for four months and that he was currently smoking eight joints a day. Defendant reported to Moore that he had a history of alcohol dependence and episodes of alcoholic amnesia. Moore recommended defendant for outpatient treatment and ruled out personality disorders or adult antisocial behavior as the cause of defendant's reported problems. Moore would testify that he did not observe any signs of hallucinations, delusions, suicidal tendencies, or homicidal tendencies in defendant and that defendant did not report any of these to him. Had he seen signs of these traits, Moore would have recommended inpatient treatment. Defendant appeared too late in the day, however, to be screened for admission and so Moore told him to return for an 8 a.m. appointment the following morning. It was further stipulated that the urine sample defendant provided on November 2, 1988, tested positive for PCP.

Defendant then presented the testimony of Judy Grund, an employee at Lens Crafter's in Skokie, Illinois. Grund testified that, on September 24, 1988, at approximately 2 p.m., defendant came into the store demanding his contact lenses. He was hostile and slurring his words and Grund thought he was "on something." The police were called and defendant was arrested. Grund stated that she had seen defendant in the store on other occasions in August and September and defendant had been polite. According to Grund, approximately one week after the incident, defendant's attorney called her to tell her of defendant's drug and alcohol problem. She also received a phone call from defendant telling her that he had a drug and alcohol problem, that he was high on drugs on September 24, 1988, and that he would be seeking help.

Beatrice Delaney, defendant's aunt, testified that defendant came over to her house in October 1988, with his niece and nephew. While sitting on the porch, defendant told her about his car and that he was going to train his nieces for track. According to Delany, his mood then changed dramatically and he became depressed. He wondered why he was allowed to watch the kids because he was out of control and did not know what he was doing.

James Redmond, defendant's brother, testified that he went on a drive with defendant in September 1988. He described defendant at that time as "hyper." He stated that he had seen defendant act hyper on prior occasions and defendant told him that his behavior was the result of PCP use. Subsequently, on a Saturday, Redmond stated that he received a ...

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