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April 21, 1995


Appeal from Circuit Court of Macon County. No. 93CF266. Honorable Jerry L. Patton, Judge Presiding.

As Corrected July 31, 1995. Petition for Leave to Appeal Denied December 6, 1995.

Honorable Carl A. Lund, J., Honorable Robert W. Cook, J., Honorable Robert J. Steigmann, J., Concurring

The opinion of the court was delivered by: Lund

JUSTICE LUND delivered the opinion of the court:

Following a jury trial in the circuit court of Macon County, defendant James Beard was convicted of first degree murder (720 ILCS 5/9-1(a)(3) (West 1992)) and concealment of a homicidal death (720 ILCS 5/9-3.1(a) (West 1992)). He was sentenced to a term of natural life in prison. He now appeals, contending that (1) the trial court erred in admitting evidence of semen found at the scene of the crime where the semen was not connected to him; (2) reversible error occurred in the admission of a witness' prior consistent statement; and (3) his sentence of natural life in prison was improper where he was not proved guilty beyond a reasonable doubt of committing murder in the course of an attempt (aggravated criminal sexual assault) (720 ILCS 5/8-4, 12-14 (West 1992)). We disagree and affirm.

Defendant and his wife, Donna Beard (Donna), were charged with five counts of first degree murder in the April 10, 1993, death of J.P., a 71-year-old woman. They were also charged with concealing J.P.'s death. Count V of the information charged that defendant and Donna killed J.P. in the course of attempting to commit aggravated criminal sexual assault. Donna entered into a plea agreement with the State whereby the murder counts were dropped, she pleaded guilty to concealment of a homicidal death, and she agreed to testify at defendant's trial.

At the trial, James Williams, J.P.'s boyfriend at the time of her death, testified that he and J.P. were unable to have sexual intercourse because of physical problems he was experiencing. The last time they had tried was 12 years before. He saw J.P. the day of her death and her clothes were clean.

Craig Gessford, deputy sheriff for Macon County, testified that he found J.P.'s body in a ditch by the side of a road. She was nude, and there was a pile of clothing next to her body.

Tommie Martin, crime scene technician with the Illinois State Police, testified regarding evidence he collected at the crime scene. There were no obvious signs of trauma to J.P.'s body. He identified the clothing found beside the body, noting that the blue jeans and underpants were soiled with fecal material, but no such matter was found on the body. He attended the autopsy on J.P.'s body. Certain evidence was collected from the body to determine whether a sexual assault had taken place. Martin also assisted in the execution of a search warrant of defendant's house and vehicle, where several items were recovered.

Dr. Travis Hindman, a pathologist at Memorial Medical Center in Springfield, testified that he performed an autopsy on J.P.'s body. J.P. was a very small woman, weighing 90 pounds and standing five feet tall. Her postmortem blood-alcohol level was 0.164. She had a small hemorrhage in the soft tissues just beneath the scalp at the back of her head. There was also a small superficial mark on one side of her neck, the cause of which he was unable to determine. He was unable to identify a cause of death. He could not, however, rule out compression as a cause. It would be possible to choke a person of J.P.'s size without leaving visible marks.

Shelly Patterson, a bartender at the Belvidere Inn (Belvidere), testified that she served drinks to J.P. shortly after 12 p.m. on April 10, 1993. She stayed at the Belvidere three or four hours, during which time she consumed four alcoholic drinks.

Fred Roof testified that he had drinks with J.P. at the Belvidere and then walked with her to another tavern, Mr. Lucky's. He sat with her for about 1 1/2 hours and, when he came out of the restroom, J.P. had left.

Robin Bodine, an employee of Mr. Lucky's, testified that J.P. usually patronized the tavern once or twice a week. She first noticed J.P. in the tavern on April 10, 1993, about 3 p.m. J.P. left the tavern about 5:45 p.m. with defendant and Donna, who were taking her home.

Charles Puckett, former assistant manager of Mr. Lucky's, testified that J.P. left the tavern on April 10, 1993, about 6 p.m. Defendant purchased some beer and left with J.P. and another woman.

Nelda Hubbard, a regular customer at Mr. Lucky's, testified that she saw J.P. there on April 10, 1993, about 5:30 p.m. She was talking to Donna, and then they left with defendant. Hubbard was in the tavern about 8:30 p.m. that day and again saw defendant and Donna there.

Donna testified that she has been married to defendant for three years and that she and defendant are both 50 years of age. She and defendant sometimes engaged in sex with others they met in bars. On April 10, 1993, defendant began drinking beer at 8 a.m. He had nothing to eat that day. She is not a heavy drinker. They went to Mr. Lucky's about 10 a.m., where defendant had more beer. They left for awhile, returning at approximately 5:30 p.m. She saw J.P. there, and it appeared she was drinking quite a lot. J.P. had been to their house once in 1992. Defendant then stated he was planning to have sex with J.P. Nothing took place, however, even though J.P. spent the night at their house. On April 10, 1993, defendant told her to ask J.P. if she wanted a ride home. J.P. agreed to allow defendant and Donna to take her home. Defendant purchased some beer before they left. Donna was not intoxicated, but defendant was. J.P. was also intoxicated. Defendant drove the car to their house, and Donna helped J.P. inside. She sat on the living room couch and began to complain that her back hurt. Defendant asked to take a look at her back, and J.P. allowed him to take off her sweater and shirt. Defendant also took off J.P.'s bra. Donna could see that J.P. had some sores on her back. Defendant asked for some baby oil and peroxide, and Donna went to the bathroom to get it. Defendant applied the medicine to J.P.'s back. Defendant then asked Donna to take J.P.'s jeans off. Although she did not want to, Donna complied with this request. Defendant held J.P.'s arms while Donna took her pants off. J.P. was fighting them. After Donna saw that J.P. had "messed" her pants, she was going to give her a bath. J.P. partially dressed herself and said she was going home. At this point, defendant was sitting in a chair in the living room. J.P. then said that she hated both of them, she was going to get them for rape, and her sons were going to beat them up. Defendant said, "You know what I have to do." He went over to the couch and began wrestling with J.P., choking her with his hands. At defendant's request, Donna checked for a pulse and felt a very faint one. She told defendant that J.P. was barely breathing. Defendant went back to the couch and choked her again. A few minutes later, Donna checked J.P.'s pulse and said she was dead. At some point prior to killing J.P., defendant had taken off all of J.P.'s clothes. Sometime later, at defendant's request, Donna tried to manipulate his penis so that he could have sex with J.P.'s body. He got on top of J.P. and remained there for about 10 minutes, acting as if he were having sex. Donna did not think defendant had an erection, and she did not know whether he ejaculated.

When Donna saw that J.P. had "messed" herself, she cleaned her off with a rag. This was prior to defendant's having sex with the body. They dragged J.P. off the couch and placed her in the backseat of their car. During this process, something struck J.P.'s head. Donna put her clothes in a paper bag. They stopped on a road, dumping the body in a ditch and the clothes out of the sack. They went back to Mr. Lucky's, picked up a man, and went back to their house where they all had sex later that night. Defendant told her to tell police that when she came out of the bathroom, J.P. was walking down the street.

On cross-examination, Donna testified that she was interviewed by two police officers the day after J.P.'s death. She told them all that happened was that defendant made a pass at J.P. and that J.P. left their house after about 30 minutes. Defense counsel questioned Donna about details of this interview, bringing out certain discrepancies between the statement and her testimony. Donna admitted she had at first told the officers she and defendant stayed home after J.P. left, then changed her statement to say that they had gone out again that night. She also told the officers she and defendant had given J.P. a ride to their house so that she could use the telephone. In the course of questioning her about her statement, defense counsel read several portions ...

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