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September 21, 1995


The Honorable Justice McMORROW delivered the opinion of the court:

The opinion of the court was delivered by: Mcmorrow

JUSTICE McMORROW delivered the opinion of the court:

Following a jury trial in the circuit court of Cook County, defendant, Bobby Sims, was convicted of two counts of first degree murder, two counts of armed robbery, two counts of home invasion, and one count of residential burglary. The trial court, sitting as finder of fact, determined that the defendant was eligible for thedeath penalty. Following a hearing in aggravation and mitigation, the court found that there were no factors sufficient to preclude imposition of the death penalty and sentenced the defendant to death. The defendant's convictions and sentence have been stayed pending direct review by this court. Ill. Const. 1970, art. VI, ยง 4(b); 134 Ill. 2d Rules 603, 609(a).

Upon review, defendant argues that (1) the police lacked probable cause to arrest him; (2) he should have been permitted to testify that he made his inculpatory statements to authorities because the police threatened to "do" him as they had "done" Tony Bey, a co-felon; (3) the trial court should have declared a mistrial because of the prosecutor's use of leading questions during its direct examination of a key State witness, James Jackson; (4) the trial court should have declared a mistrial because the prosecution elicited testimony from a police detective to the effect that an important State witness, Josie Ivy, was afraid of the defendant; (5) the State committed three discovery violations that should have prompted the trial court to declare a mistrial; and (6) the prosecutor made improper remarks during closing argument.

With respect to his sentencing hearing, defendant contends that: (1) the trial court should not have stricken a report from a psychiatrist, Dr. Carl Wahlstrom, which was relied upon by defendant's mitigation specialist, John Sturman, in his testimony at the sentencing hearing; (2) the trial court should have appointed substitute counsel to represent defendant with regard to his allegation that his sentencing attorney was ineffective; (3) the trial court should have excluded evidence at the sentencing hearing that indicated defendant belonged to a gang while serving a term of imprisonment for a previous felony conviction; (4) the defendant's 1975 murder conviction could not be used torender him eligible for the death penalty; (5) one of defendant's home invasion convictions should be vacated, thereby necessitating a new sentencing hearing; and (6) the Illinois death penalty statute is unconstitutional.


Defendant was convicted for the November 1988 murders and armed robberies of William Brown and Robert Nelson, who lived in neighboring apartments in the 3400 west block of 12th Place in Chicago. Officers of the Chicago police department found the bodies of the victims in Robert Nelson's apartment on November 21, 1988. The apartment had been ransacked and it appeared that some items had been taken from the residence.

Forensic evidence established that victim William Brown died from multiple stab wounds. Robert Nelson died from craniocerebral injuries due to blunt trauma and a stab wound to the chest. Robert Nelson's son, Randall Williams, informed authorities that he had seen his father the previous morning, on November 20, 1988. Randall also advised that he had attempted to speak to his father on the evening of November 20, but found no one in his father's apartment. The next morning, Randall received a telephone call from his aunt and returned to his father's apartment. Randall looked through a window at the back entrance and saw a body on the floor. Randall told his aunt to call the police. The police came and broke in the door to his father's apartment, where they found Randall's father, Robert Nelson, and William Brown. Both men were dead.

Police authorities conducted fingerprint examinations of various objects in the apartment. It was determined that three objects on the kitchen table contained fingerprints suitable for comparison: a large grapefruit juice bottle, a wine cooler bottle, and a drinkingglass. Comparisons were made of these fingerprints and it was ascertained that the prints taken from the wine cooler bottle and the drinking glass belonged to one of the victims, Robert Nelson. It was further determined that the fingerprints found on the grapefruit juice bottle belonged to the defendant.

Police authorities uncovered significant evidence linking defendant to the homicides. Josie Ivy, defendant's girlfriend, testified that on the date of the murder, defendant left her apartment in the company of a friend, Tony Bey, at approximately 5 p.m. Defendant returned to the apartment sometime later that night, at approximately 9 or 10 p.m. Josie testified that defendant told her that Tony "had hurt some people." Defendant repeatedly told Josie that he himself had knocked someone out using a brick and that Tony had stabbed the other man. Defendant also told her that Tony went over to the man whom defendant had knocked out and stabbed this victim, in order to "finish the job." Later, defendant told Josie that Tony had taken a VCR from the apartment where the two men had been killed.

Pursuant to defendant's instructions, Josie telephoned her brother, Lee Ivy, and arranged for Lee to have the VCR. When Lee arrived at Josie's apartment to take the VCR, defendant gave Lee two BB guns. Lee drove defendant and Josie to the home of defendant's nephew, James Jackson. Josie stated that she heard the defendant ask his nephew if the police had been looking for him. When defendant's nephew asked defendant what had happened, the defendant said, "It's in the papers; read the paper."

James Jackson, defendant's nephew, testified that defendant came to his house on November 23, 1988. Defendant said that he may be in some trouble and that the police were looking for him. He told James that some people may have got killed at a house on 12thPlace in Chicago where one of James' uncles used to live. Defendant said that the people were stabbed and that a brick had also been used. Defendant also said that his fingerprints may be found in the apartment on a bottle. According to James, defendant said that the incident "may be in the paper" and suggested that the nephew "buy a paper."

Josie's brother Lee Ivy also gave testimony regarding his encounter with defendant and Josie on November 23, 1988. Lee stated that when he arrived at Josie's apartment, defendant said that he wanted to leave town and appeared nervous. Lee's testimony regarding defendant's offer of BB guns and a VCR was substantially similar to the account given by Josie. Lee also gave substantially similar testimony regarding their trip to the home of defendant's nephew, James Jackson.

The State also presented testimony to establish that defendant had confessed to his participation in the murders. Detective Ralph Vucko of the Chicago police department testified that officers arrested defendant on December 21, 1988. Thereafter, defendant was transported to the police station and placed in an interview room. Detective Vucko testified that defendant was not placed in handcuffs while he was held in the interview room. He advised defendant of his Miranda rights and defendant agreed to speak to the detective. Initially, defendant denied any involvement in the incident. Detective Vucko responded that the police had talked to several people in the investigation, including Tony Bey, Rodney Ivy, Josie Ivy, and James Jackson. Defendant then said that he was lying and that he would tell the truth.

According to Detective Vucko, defendant told him that on November 21, 1988, defendant was at Josie's apartment when Tony Bey came over. Defendant went outside with Tony and they walked around. Tony saidthat he needed some money and suggested that they go over to Robert Nelson's house. As they were walking, they were joined by Rodney Ivy and the three went to victim Nelson's apartment.

When they arrived at the apartment building where Nelson lived, Rodney stayed outside while defendant and Tony knocked on the front door. Nelson greeted them at the front door and let them into the apartment. They went into the kitchen. Tony asked for something to drink and Nelson produced a bottle of gin and some glasses. He also got some orange juice from the refrigerator. While they were in the kitchen, William Brown came in and joined them. The group had a conversation. Tony asked for a cigarette, but Brown said he did not have any. Brown gave Tony a $20 bill to buy some cigarettes. Defendant told Nelson that he was hungry and wanted some food. Nelson gave defendant $5 for something to eat. Defendant and Tony left the apartment together and joined Rodney outside.

While defendant, Rodney, and Tony were walking around the area, Tony suggested that they should buy some knives instead of some food. They went to a grocery store and Tony bought a kitchen knife. They walked back toward Nelson's apartment and Tony said to defendant, "You do your part, and I'll do mine." Defendant picked up a brick that was on the ground and put it in his coat pocket. They walked back to Nelson's apartment. Rodney waited outside while Tony and defendant knocked on the door.

William Brown opened the door and defendant walked past him, through the apartment and into the kitchen where Nelson was seated at the table. Defendant heard a commotion in the front and heard Brown calling out to Nelson. Defendant took the brick out of his pocket and hit Nelson two or three times on the head. Nelson fell to the ground and began moaning. Defendantwent into the bedroom to look for a pistol that he knew was in the room. As he was searching for the pistol, Tony appeared at the doorway. Tony told defendant that Nelson was still alive and that he "would take care of him." Tony then went into the kitchen area. A short time later, defendant no longer heard Nelson moaning.

Defendant continued to search through the bedroom. The telephone began to ring and defendant became scared and started to walk through the apartment. He saw Tony taking items from the apartment and putting them in a small suitcase. He also saw Tony take a VCR and put it in a box. They both walked out of the apartment together. Tony gave defendant the suitcase to carry and Tony carried the cardboard box with the VCR. When they got outside, they were joined by Rodney Ivy, and walked back to Josie's apartment.

When they arrived at Josie's apartment, Tony said that he had taken $20 from the victims and gave the defendant $12. Tony also told defendant to take what he wanted from the suitcase. Defendant took from the suitcase what he believed were two guns. Tony told him that he would sell the VCR later, and told defendant that he had better go home because he was "full of blood." Defendant and Rodney went back to Josie's apartment. As they were walking, defendant realized that the guns he had taken were BB guns. He gave them to Rodney along with $2.

Detective Vucko denied that he struck or kicked defendant during his interrogation, and denied that he made any threats to the defendant. The detective testified that defendant was given food and drink. He further stated that the defendant never asked to talk on the telephone and never said he had been beaten.

Assistant State's Attorney Robert Chapman Buckley, Jr., testified regarding the conversations he hadwith defendant after defendant was placed under arrest and brought to the police station on December 21, 1988. His testimony was substantially similar to the testimony given by Detective Vucko. Assistant State's Attorney Buckley testified that after his initial conversation with the defendant, defendant agreed to a handwritten statement of what had transpired. Assistant State's Attorney Buckley left the room and wrote out the statement that defendant had given him.

The defendant, Detective Vucko, and Assistant State's Attorney Buckley then reviewed the defendant's statement. At the conclusion of reading the entire statement, defendant signed the bottom of each page of the statement. Defendant also signed his name after the portion that set out the Miranda rights. Detective Vucko and Assistant State's Attorney Buckley also signed the statement. The handwritten statement recounted the events surrounding the murders in substantially the same fashion as the account defendant gave to Detective Vucko.

Defendant said in his statement that no one promised him anything, forced him, or threatened him to make his statement. He also said that the police and assistant State's Attorney had treated him well. Defendant further stated that he was not under the influence of alcohol or drugs and that he had given the statement freely and voluntarily. Assistant State's Attorney Buckley testified that when he when he took the statement from defendant, he did not see any injury to defendant's face, head, eyes or mouth.

Defendant testified in his own defense at trial. He stated that in November 1988, he had known Josie for about four or five months. Defendant testified that he was employed to do general handyman work, such as plumbing and electrical repairs. Defendant knew Tony Bey from seeing him in the neighborhood. He knew RobertNelson because defendant's brother had stayed with Nelson for a couple of months.

Defendant said that he met Nelson one day through his brother in 1987 or 1988 and that he had been over to Nelson's house only four times. In November 1988, he did some plumbing work for Nelson, on approximately the second or third week of November. Defendant stated that he had some juice to drink after he was finished working at Nelson's apartment. Defendant stated that he never borrowed any money from Nelson.

Defendant testified that on December 21, 1988, at approximately 11 p.m., he was arrested by officers of the Chicago police department and transported to the police station. Defendant stated that when they arrived at the station house, he was placed in an interview room and handcuffed to a ring on the wall. After approximately 20 minutes, Detective Vucko entered the room. According to defendant, Detective Vucko said, "You are going to tell me about the sissies that were killed." Defendant responded that he did not know anything about it. Detective Vucko answered that defendant was lying because Josie "had told him." Defendant repeated that he did not know anything about the murders.

Defendant testified that Detective Vucko repeatedly struck the defendant in the face, saying that defendant was lying and that defendant knew about the homicides. Defendant continued to deny any involvement in or knowledge of the incident. According to defendant, Detective Vucko then assaulted the defendant. Defendant testified that he sustained injuries to his leg, ribs, mouth, face and eyes. Defendant testified that thereafter, Detective Vucko said, "We are going to do you like we did Tony Bey." Because of this remark, defendant became afraid. Detective Vucko started "hollering" and telling defendant what he had done during the incident. Defendant denied that he knew anything, but Detective Vucko repeated his accusations.

Defendant stated that a short time later, the detective briefly left the room. Detective Vucko then returned with a written statement he had drawn up. The detective sat in front of the defendant and read over the statement, asking if it correctly stated what had transpired. Defendant answered yes because he was afraid that the detective would continue to beat him if he did not agree.

An assistant State's Attorney entered the room. Detective Vucko again read the statement that he had written for defendant, and again defendant agreed that the statement gave an accurate account of what had happened. Later, the assistant State's Attorney returned by himself with another written statement that he had prepared. The assistant State's Attorney gave it to defendant to read. The defendant read part of it and then pushed it back to the assistant State's Attorney. The attorney asked defendant if he wanted to sign it. Defendant testified that he refused, because "it wasn't true." Defendant asked the assistant State's Attorney, "If I don't sign it, would the police beat me anymore," and the assistant State's Attorney responded, "The best thing can do is tell [you] to sign it." Defendant testified that he then signed the statement, because he was afraid.

Defendant said that before he signed the statement, he had not been given any food or water and that no one advised him of his Miranda rights. After he signed the statement, the assistant State's Attorney left the room. Defendant was taken to lockup, where he was allowed to use a phone. He called his sister, Eloise Cole, and told her that he had been beaten by the police and that they made him sign a statement. Defendant represented that he continued to have sharp pain in the chest area every time he breathed.

In his trial testimony, defendant denied that he went to see Josie the evening of November 21, 1988, andstated that he did not go to Nelson's house with either Tony or Rodney. Defendant denied any involvement in the double homicides at Nelson's apartment. He also denied offering to sell Lee Ivy a VCR, or telling his nephew, James Jackson, that he had killed two people.

It was stipulated that defendant was found guilty of two felonies in 1975 and that judgment was entered on those convictions.

Eloise Cole, defendant's sister, testified that defendant telephoned her on the evening of December 22, 1988, and told her that the police had locked him up for murder. Defendant also said the police had beaten him and that they refused to take him to the doctor. Eloise testified that she went to court the following day and saw the defendant. Eloise stated that the defendant looked "horrible" and appeared to be sick.

Eloise also testified that defendant came over to her house on November 23, 1988, and he asked if her son, James Jackson, was at home. Eloise denied that she told detectives, when they talked to her on November 30, that defendant also asked if the police were looking for him.

In the State's case in rebuttal, Detective Boock testified that he interviewed Eloise Cole on November 30, 1988. According to the detective, Eloise told him that on November 23, 1988, defendant arrived at her house and told her that the police might be looking for him. Eloise also told the detective that when defendant left the home, her son, James, was with the defendant.

Howard Hradek, a paramedic supervisor at Cermak Hospital, testified that according to hospital records, the first time that defendant spoke to hospital personnel was on December 30, 1988. At that time, he complained of chest pains. The following day, defendant talked to hospital personnel and complained of rib pain. Defendant never complained about a leg injury or a face, mouth, or head injury.

Based upon this evidence, the jury found defendant guilty of the first degree murders of William Brown and Robert Nelson, the home invasion of both victims, the armed robberies of both victims, and the residential burglary of Nelson's apartment.

The defendant elected to waive a jury for his sentencing hearing. Following evidence and argument, the trial court determined that the defendant was eligible for the death penalty (see 720 ILCS 5/9--1(b)(3), (b)(6) (West 1992)). The defendant waived a jury for the aggravation/mitigation phase of the sentencing hearing, and the evidence submitted by the parties was considered by the trial court sitting as finder of fact. The evidence offered in ...

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