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09/29/94 PEOPLE STATE ILLINOIS v. ANTHONY ENIS

September 29, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,
v.
ANTHONY ENIS, APPELLANT.



McMORROW

The opinion of the court was delivered by: Mcmorrow

JUSTICE McMORROW delivered the opinion of the court:

Based upon the evidence presented at trial, a jury in the circuit court of Lake County found defendant guilty of the murder of Merlinda Entrata that was committed on August 10, 1987, in Waukegan, Illinois. After a sentencing hearing, the trial court imposed the death sentence, which has been stayed pending direct review by this court (Ill. Const. 1970, art. VI, § 4(b); 134 Ill. 2d Rules 603, 609(a)). We affirm.

According to the evidence of record, Merlinda was the complainant in a criminal sexual assault charge that had been filed against the defendant for an incident that allegedly occurred on April 28, 1987, a few months before Merlinda was killed. Defendant entered a plea of not guilty to the charge. During the pendency of the criminal sexual assault proceeding, defendant was released on a personal recognizance bond. The case was originally set for trial on August 3, 1987, but was later continued to August 17 at the request of defense counsel.

Steven Simonian, an assistant State's Attorney whomet Merlinda in preparing the criminal sexual assault case for trial, believed that Merlinda was willing to proceed to trial and to testify against the defendant. Merlinda did not tell Simonian, or her victim assistance counselor, Chris Bellios, that defendant made any effort to contact her while he was released on bond.

In early May, Merlinda changed apartments at the complex where she had been living. She also bought long, wooden poles to prop against the doors to the apartment, to prevent forced entry into the apartment. Merlinda's uncle, Zacarias Meana, helped Merlinda move into the new apartment, and helped her install the wooden poles as additional security measures in the new apartment.

Merlinda was employed as a nurse at the American International Hospital. Before April 28, the date on which Merlinda was allegedly sexually assaulted by defendant, Merlinda had been working the 3 p.m. to 11 p.m. shift at the hospital. A few days after April 28, however, Merlinda requested that her shift be changed so that she would work from 7 a.m. to 3 p.m. This request was granted by the hospital administration. Carmelita Mangubat, who was also a nurse at the hospital and knew Merlinda from their mutual employment there, saw Merlinda on Sunday, August 9, at a birthday party for one of the hospital nurses. Mangubat expected to see Merlinda the next morning at work, but Merlinda never appeared.

Melena Powell, who lived in Merlinda's apartment complex, was awake in her apartment in the early morning hours of August 10, 1987. Powell heard two pop sounds and then heard someone run down the hallway. She got out of bed and walked toward the main door to the apartment. When Powell was about to open the door, she heard a girl say mama, mama, mama" and then heard pop sounds. Powell also heard a soundas if a body in the hallway was sliding against her door. Powell went to call the police. Before Powell was able to place the call, members of the police department arrived at the scene.

Patricia Secor, a dispatcher for the Waukegan police department, was working the midnight to 8 a.m. shift on August 10. At 6:46 a.m., she received a call of a shooting at the apartment complex. Both the ambulance and police were dispatched at 6:47 in the morning.

Steven Jones, a Waukegan police officer, heard and responded to Secor's dispatch call at 6:47 a.m. Jones arrived at the apartment complex at 6:49 in the morning. He went into the building, took the stairs up to the third floor, and found a young woman, later identified as Merlinda, slumped against a door in the interior apartment hallway. Jones checked her for vital signs, but she had no pulse. Jones notified communications of what he had found.

Officer Jones also took photographs and searched for fingerprints or other evidence of the crime. Jones found some bullet fragments near the victim's body. Later, the officer attended an autopsy that was performed on the victim. Jones saw that there were a total of five bullet wounds to the head. Some of the wounds had "stippling," which indicated the presence of unburned gunpowder and, in turn, that the gun had probably been fired from close range. Autopsy results established that Merlinda's death was caused by two of the gunshot wounds.

Officer Louis Rodriguez of the Waukegan police department was on patrol when the shooting occurred. He was called to the apartment complex to investigate and began to search for possible witnesses. During this investigation, he was given information regarding a white vehicle in the parking lot. Officer Rodriguez inspected the automobile and found the registration number. It belonged to the victim, Merlinda. Hesearched the area and found a key ring near the apartment building in which Merlinda's body was found. It was later determined that the key ring also belonged to Merlinda.

The record indicates that police learned the following from persons who were at the scene at the time of the shooting.

Clara Burk

Clara Burk, who lived in Merlinda's apartment complex, saw a man in the parking area of the apartment complex at approximately 9:30 p.m. on August 8, two days before the shooting. At the time, Burk was driving through the parking area. A man suddenly stepped off the curb in front of her car. Burk braked to stop so she would not hit the man. He immediately stepped back up onto the curb. He looked directly at her and waited. She motioned for him to move on, and he walked in front of her car and across the street.

Burk stated that when the man stepped back onto the curb, he looked at her and she looked directly at him. Her car lights were on and there were two street lights on in the area. The man was approximately five feet nine inches tall. He was of medium build and had closely cropped black hair. He was wearing white sunglasses.

Two days later, on August 10, 1987, Burk was driving in the parking lot at approximately 6:40 to 6:45 in the morning. She slowed because of automobile and pedestrian traffic. She looked over and saw the same man who had stepped off the curb in front of her car two nights earlier. The man had a lunch box, or some type of box, in his hand.

Burk saw a woman walk out of the apartment building. The woman was wearing a white uniform. Burk noticed that the woman was looking in her purse as she was walking down the stairs, and Burk watchedher for a little while because Burk thought she might fall and hurt herself. Burk saw the woman look up and noticed that a startled look came over the woman's face. The woman was looking straight ahead, in the direction of the man Burk recognized from the previous evening. The woman darted back into the apartment building, and the man ran after her. Burk heard two shots fired, and then heard one additional shot.

Burk was interviewed the following day by the Waukegan police department. She identified a photograph of the defendant, Anthony Enis, as the person she had seen on the evening of August 8 and on the morning of August 10. At that time, Burk did not give the officers any details regarding what she had seen. She explained to the officers that she was on her way to work and that she did not have time to give a statement. Burk gave the officers an address and contact number. A few days later, officers spoke to Burk at her place of employment. They showed Burk more photographs, and again Burk picked out a photo of the defendant. Burk also told the police what she had seen the evening of August 8, and what she had seen the morning of August 10.

Although Burk testified at defendant's trial that the man she saw was wearing sunglasses, she testified at a prior proceeding that she could not remember if the man was wearing sunglasses. Also, although she testified at defendant's trial that defendant had crossed in front of her vehicle when she saw him on the evening of August 8, police records indicated that Burk told the police that the man had passed behind her car, and that she had watched him in her rear-view mirror.

Dan Thacker

Dan Thacker, who lived in Merlinda's apartment complex, was in his bedroom getting ready for work at about 6:30 a.m. on August 10, 1987. Thacker looked out his window and saw a woman in white clothing runningacross the parking lot. Thacker went closer to the window to get a better look. He saw a man chasing the woman into one of the apartment buildings in the complex. Thacker stated the man was approximately 5 feet 10 to 5 feet 11 inches tall, with a "somewhat slender" build and a short haircut. The man was wearing white gloves, white sunglasses and dark clothing. He was carrying some kind of metal lunch box.

Thacker saw the man follow the woman into the building. A few minutes later, Thacker looked out the window again and saw the same man emerge from the building and walk across the parking lot. He was still wearing white gloves and white sunglasses and was still carrying the metal lunch box. Thacker looked at and watched the man as he walked in the parking lot. The man was walking in a direction toward Thacker, and he could see the front of the man's face and body, and a portion of his left profile.

Later, Thacker spoke to officers of the Waukegan police department. Thacker was shown various photographs, but could not make a positive identification of the man he had seen in the parking lot. However, Thacker did advise the officers that a photograph of the defendant matched the description of the man he had seen that morning. Thereafter, when Thacker saw a photograph of the defendant without facial hair, Thacker stated that he "wasn't a hundred percent positive identification, but it does meet all the features of the man that I saw."

A day after the incident, on August 11, Thacker saw a lineup. He chose one of the men, the defendant, as the person he had seen in the parking lot. Thacker again advised the officers that he "wasn't 100% positive, but [that] * * * [defendant] met the general descriptions [of the person] that [he] saw that morning." At defendant's trial, Thacker identified defendant as the man whosephotographs he recognized as those of the assailant. Thacker also said that defendant was the man who "looks like the person that [he] saw on August 10, 1987."

Thacker acknowledged that he was not saying under oath that defendant was the man he saw on August 10, 1987. Thacker explained on cross-examination that the reason for his hesitation was not that he thought defendant might not be the same person, but because the assailant was wearing sunglasses, while the defendant was not.

Richard Hanson

Richard Hanson, who also lived in the apartment complex, was at the entrance waiting for his car pool to go to work in the early morning hours of August 10. Hanson saw a man running toward him in the parking lot. The man was wearing white sunglasses and had on white gloves. Hanson was able to see the man clearly. As the man neared the hedges, the metal box that he was carrying came open. Hanson saw the man bend down and pick up whatever had fallen out of the box. Hanson saw that the item was a gun. Hanson saw the man put the gun back into the metal box. At defendant's trial, Hanson identified defendant as the man that he had seen that morning. Hanson said that he was certain of the identification.

The day after the shooting, Hanson was interviewed by a Waukegan police officer and told the officer what he had seen. When shown a photograph, Hanson identified the defendant as the assailant. Hanson also identified the defendant in a lineup. During cross-examination at defendant's trial, Hanson acknowledged that, in prior testimony, he had said that he could not be absolutely sure that defendant was the man, since the assailant had been wearing sunglasses. Hanson also explained, however, that in his prior testimony he also said that he was certain defendant was the man, but"also made the comment that he did have on glasses, but to my recollection that was the person I saw."

Sylvia Barrett

Sylvia Barrett was a passenger in a van that was entering the parking area of the apartment complex on August 10, 1987, at about 6:30 a.m. She was sitting in the front passenger seat of the van. When they entered the lot, Barrett saw a man in a dark-blue mechanic's jumpsuit. He was sitting in front of a car. Barrett and her companions sat in the van and waited for approximately three to five minutes. During this time, Barrett periodically looked over at the man. As they started to leave, the van drove directly past the man, and Barrett could see his face. The man looked away as though he was "trying to avoid anyone noticing him." Barrett could not recall if the man had been wearing sunglasses, or if he had been wearing gloves. Barrett positively identified defendant in court as the man she had seen sitting in front of the automobile.

Two days after the shooting, on August 12, Barrett was approached by police officers who showed her a group of photographs. She could not recall whether she recognized anyone from those photographs. Sergeant Paul Hendley of the Waukegan police department testified at defendant's trial that, when he spoke to Sylvia Barrett on August 12 and asked her if she recognized any of the photographs, she picked out the photograph of the defendant as the man she had seen. Barrett recalled that in February 1988, she was shown a photograph of the defendant, and that she identified him as the man she had seen in the parking lot on August 10.

Barrett also did not recall giving testimony in a prior proceeding that when she saw defendant in February 1988, she did not recognize him as the man she had seen in the parking lot and that he looked "basicallydifferent" from the man she had seen in the parking lot. According to a transcript taken by the court reporter, Barrett testified at the prior proceeding that when she saw the defendant in February 1988, she did not recognize defendant as the man she had seen in the parking lot.

John Twardy

John Twardy, who lived in the apartment complex, was having coffee in his bedroom at approximately 6:45 in the morning. He was sitting near the window, and could see the parking lot. As Twardy looked out the window, he saw a man running through the lot. The man jumped over a hedge, dropped something, stopped to pick it up, and then ran out of Twardy's line of sight. Twardy then saw a red car pull out of the parking lot and drive away.

Later that morning, Twardy was interviewed by officers of the Waukegan police department. Twardy told them what he had seen in the parking lot. A few days later, officers drove Twardy to an apartment building on South Jackson Street in Chicago. At that location, Twardy identified the car that he had seen drive away. Twardy told the officers that "this car was a little more shinier than what [he] * * * saw when * * * it [was] going up the hill" away from the apartment complex.

Twardy disagreed with information contained in police reports regarding Twardy's statements to officers following the incident. According to Twardy's testimony at defendant's trial, Twardy never told the officers that he saw the car pull away at a high rate of speed, and he never identified the car "without hesitation." He told the officers that the car was "shinier" than the one he had seen and that there was some damage to the right front fender that he had not noticed on the car he had seen pulling away. However, he never told the officers that he had seen the man enter the maroon vehicle, that it had four doors, or that it sped away.

Waukegan Police Officer Louis Marquez and Waukegan Detective Hendley interviewed Twardy after the shooting. The officers testified that Twardy told them that he saw a man run through the parking lot. The man was carrying a metal box. Twardy told the officers that he saw the man get into a maroon, four-door car that was parked near Twardy's automobile. Twardy said the man backed up very quickly; the man drove the car so fast that Twardy thought the man was going to hit Twardy's car. Twardy said the man sped out of the parking lot. Twardy told the officers that the car's right, front hubcap was missing. The officers took Twardy to look at a car parked on South Jackson Street in Chicago. It was a maroon, four-door sedan with a right, front hubcap missing. Twardy said "without hesitation" that it was the car that he had seen speeding from the parking lot.

According to transcripts from earlier proceedings, Twardy had previously testified in court that the car he saw on South Jackson Street had a hubcap missing, the same one that had been missing when he ...


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